Outside Counsel

To the Donald Harrison Quintet Saturday night, the finale of Bruce Eaton's Hunt Real Estate Art of Jazz series at the Albright-Knox this season, and a rousing show. Harrison has tremendous range, moving from bop and post bop informed by funk and his New Orleans roots, and the band-- who were all in their 20's-- displayed formidable swing and muscle. Garaud MacTaggart singled out the bass player, Max Moran. (Jason Moran's cousin. Cool.) I was more impressed with the drummer, Joe Dyson, who kept the NOLA in the procedings throughout, and the piano player, Zaccai Curtis, who was seriously dazzling. The guitarist, Detroit Brooks, presented an interesting challenge. At first I wasn't sure what he was bringing to the proceedings, but it gradually dawned on me that he was adding swing to the rhythm section and functioning at the same time as a second lead instrument, almost like a second horn.

I'll be damned. There is an online archive of the columns I wrote for The Opinion as Student Bar Association President. Wow, that's an unflattering picture. On the other hand,they are better written than I'd have had any reason to expect, and less angry than I recall. The experience was surprisingly vexed from start to finish, and I probably should have devoted my energies elsewhere. Still, I think it's the last time I was ever elected to something, and that should count for something.

Roll Call breaks down the New York congressional races. I'm sorry that Louise Slaughter was redistricted out of Buffalo-- we wrote a profile of her six years ago that I think captures her strengths quite well. Brian Higgins is fine, but he is more of a constituent service sort of representative, and I prefer someone who sees the big picture. Kathy Hochul's district is arguably the most Republican in the state. Although its boundaries get moved around a lot, the idea seems to have been to make it a safe seat for national Republicans. Tom Reynolds, chairman of the National Republican Congressional Committee, sat there, and pieces of it have been represented by the likes of Jack Kemp and Bill Paxon (who was also chair of the NRCC). Hochul isn't safe, exactly, but it looks like she will be blessed by her opposition.

Old-line, white shoe firms are interesting to me-- Sullivan & Cromwell brokered the Panama Canal deal, for example. Mudge, Rose is where Nixon met Mitchell. Dewey, Balentine used to be Root, Clark & Bird. The Root was Elihu Root, Jr., son of New York Senator Elihu Root, former United States Secretary of War. Henry Friendly and John Marshall Harlan II worked there at one time, and when Thomas E. Dewey was done being governor (but before he became a Thruway) that's where he went. LeBoeuf, Lamb, Greene & MacRae was pretty fancy too, and five years ago Dewey and LeBoeuf merged. Now it looks like they are going broke, which is sad, in a way. I don't mean particularly sad for the lawyers-- in the grand tradition of these matters it looks like they got into trouble for pretty much the same reason all law firms do. The saying in this biz is that pigs get fat and hogs get slaughtered. When your assets basically go home in people's hats every day it doesn't pay to get too greedy, and now a lot of interesting history is about to be lost, along with a lot of jobs that people who weren't greedhead lawyers can ill afford to lose.

Shown here is the Buffalo Eruv, which is actually in Amherst. It was just completed last month, which is interesting all by itself-- were there smaller ones before? Eruvin are a Talmudic work-around for the traditional prohibitions on carrying things outside the home on the Sabbath. Calvin Trillin calls the eruv a "magic schlepping circle," and I have to admit that I think that's funny, but I also like the idea of the eruv-- if you are going to live in a mystical world, there should be some magical things about it, even if your world looks like Sheridan Drive to everyone else.

I will certainly read Jonathan Lethem's 33 1/3 volume on Talking Heads' "Fear of Music". I enjoy Letham's writing ("Chronic City" was the most enjoyment I've had from new fiction since I can't remember). I have argued that Talking Heads are on the short list for Greatest American Band. With all that stipulated, and with the further acknowledgment that "Fear of Music" is an intriguing, difficult work, I'd have to say that in my mind the greatest Talking Heads album is probably "Remain In Light".

A convocation of Republican intellectuals.

Via the Volokh Conspiracy, an interesting exposition on how context changes meaning from Justice Kagan. The statute under discussion statute says that a party can bring a counterclaim if "the patent does not claim . . . an approved method of using the drug." The question before the Court was whether that means that the counterclaim can be brought only if the patent claims no method of using the drug, or only if in doesn’t claim that particular method of using the drug.

Truth be told, the answer to the general question “What does ‘not an’ mean?” is “It depends”: The meaning of the phrase turns on its context. See Johnson v. United States, 559 U. S. ___, ___ (2010) (slip op., at 5) (“Ultimately, context determines meaning”). “Not an” sometimes means “not any,” in the way Novo claims. If your spouse tells you he is late because he “did not take a cab,” you will infer that he took no cab at all (but took the bus instead). If your child admits that she “did not read a book all summer,” you will surmise that she did not read any book (but went to the movies a lot). And if a sports-fan friend bemoans that “the New York Mets do not have a chance of winning the World Series,” you will gather that the team has no chance whatsoever (because they have no hitting). But now stop a moment. Suppose your spouse tells you that he got lost because he “did not make a turn.” You would understand that he failed to make a particular turn, not that he drove from the outset in a straight line. Suppose your child explains her mediocre grade on a college exam by saying that she “did not read an assigned text.” You would infer that she failed to read a specific book, not that she read nothing at all on the syllabus. And suppose a lawyer friend laments that in her last trial, she “did not prove an element of the offense.” You would grasp that she is speaking not of all the elements, but of a particular one. The examples could go on and on, but the point is simple enough: When it comes to the meaning of “not an,” context matters.

We know that Justice Sotomeyer is a Yankees fan, and Breyer has Red Sox stamped all over him. I assume that Justice Thomas watches bass fishing. Roberts, of course, doesn't follow any team-- he watches the umpires. Ginsburg might be one of those people who stayed true to the Dodgers after they moved-- she seems like an NL fan, but the chances are that her time at Columbia brought her around to the Yanks. Scalia is a Red Sox man. He actually likes it that they were the last team to integrate. Alito grew up in Jersey. He's a Yankees guy. He'll tell you it's because of DiMaggio, but really it's because he's a frontrunner. Kennedy likes the Dodgers sometimes, and sometimes he likes the Giants. Occasionally he'll take in an A's game, or maybe the Angels.

Levon Helm is near the end. Outside Counsel joins the voices saluting him for his contribution to what is decent in American culture, and thanking him for reminding us about the things that we all share in common.

Helm was the only American member of The Band, and it was his presence that made the group American. The remaining members were sons of Ontario, and you could argue that it was because they were Canadian that they understood the US as well as they did. Any discussion of the greatest rock and roll bands from America has to include The Band, I think. Bob Dylan soaks up a lot of influences, but he seldom collaborated with anyone in the way that he worked with this group, and I think it is fair to say that Greil Marcus's idea about Dylan invoking "the old weird America" has its foundations in that collaboration.

All that, and he was great in "Coal Miner's Daughter" too. Thanks, Leon. (Ronnie Hawkins and the Hawks from If Charlie Parker was a Gunslinger)

Interesting decision. Apparently, as part of its interrogation of a suspect the Queen's DA's office told a guy awaiting arraignment that they would "investigate his side of the story." They didn't do it (it looks like this was a regular practice, so I guess they never did it, and never intended to), and now Justice Joel Blumenfeld has held that the practice is unethical and precluded the use of the defendant's trial as a sanction. What makes this unusual is that the sanction is different technically from suppressing the statement. Because it is an ethics sanction the DA may not be able to take an appeal.

As of mid-February, the district attorney's office said that 9,382 suspects have been asked since 2007 if they wished to be interviewed. Three quarters of the suspects agreed to talk without a lawyer present. No questioning was conducted of those who invoked their Miranda rights.

Confessions were received from 20 percent of those who were asked to be interviewed. In addition, according to data current through the end of January, the prosecutors at the interviews did not press charges against 84 suspects because they were convinced by the suspects' statements and/or demeanor that they were actually innocent.

This strikes me as a sleazy practice, born out of the need to process a large volume of cases. The defendant in this particular case got real lucky, I think: that's some good lawyering on his counsel's part, and all over $300 bucks and an iPod. Probably an iPod Shuffle.

State Dogs. Some day CLA's Nova Scotia Duck Tolling Retriever will play with my Boykin Spaniel.

I did not know that the ABA's accreditation rules prohibit more than 20% of a law school’s teaching to be done by practicing lawyers. Putting as positive a spin on that as possible, I'd say that the point of the rule is to prevent law schools from constructing part-time faculty- and that makes a certain kind of sense. Unfortunately, the 80% that constitute the majority of the faculty are overwhelming people whose practice experience, to the extent that they have any at all, largely consists of a year or so of a judicial clerkship (valuable-- I wish I'd had the opportunity-- but not really practicing), followed by maybe five years at a large firm, or in the DOJ, or some other, similar post. Very fancy, to be sure, but not really laboring in the trenches either.

In a way it is a moot point. Law schools are producing far more lawyers than the market can absorb, so the fact that they are not actually teaching people much about how to help clients by practicing law is irrelevant. Despite this, I still believe that law is a legitimate subject to study, and a worthy career to pursue, but I wish that the institutions that should be the most responsible for forming our professional culture would behave more responsibly. If I were king of legal education I'd do a few things. I'd eliminate roughly a third of the law schools in the country, for starters. Law schools that are free-standing -- unaffiliated with research universities-- would be the first to go. I would consider instituting a rule which would limit the number of law schools in a state on the basis of the population of the state. I would require that all law school applicants spend a minimum of one year outside of school- and I might extend the real-world requirement to three years, subject to some very narrow exceptions. I would require that at least 20% of the credits required for graduation and bar exam eligibility be skills based courses, and I would start looking at optional ways to reduce the curriculum to two instead of three years. (For some the third year is a good thing, I think.)

That would be a start.

I've been on a Blue Öyster Cult kick the last couple of days, perhaps because the longer sunnier days have reminded me of what was perhaps the highlight of last summer. Man, that's a band with some catalog. "She's as Beautiful as a Foot", "Harvester of Eyes", "Shooting Shark". How have they not been my all-time favorite? Man, I was way too serious.

EGA takes on the St. Louis 13.1 this Sunday. Those who are interested in receiving text or email updates in real time as she works her way from downtown, past Soulard, and into Forest Park can sign up here.

And while we are on the subject, here's a list of ten rock legends who have never been nominated for the Rock and Roll HOF. "Sure, to actually enshrine any of them would also negate the Rock and Roll Hall of Fame's symbolic importance for all that is hilarious about itself, and that would be a loss. But it's only rock and roll."

I am a fan of neither Guns 'n' Roses nor the Rock and Roll Hall of Fame, but for what it is worth Axel Rose declining induction to the HOF is perhaps the most rock and roll thing about either.

If Ron Rosenbaum's writing were less about Ron Rosenbaum he'd be a lot more interesting. His thesis in this article is, I think, a valid and provocative hypothosis: Bob Dylan should be considered in the context of the urban, "black humor" tradition of late 20th Century artists like Joseph Heller and Stanley Kubrick. Fair enough-- it is certainly true that to many observers Greil Marcus' theory that Dylan is the last avatar of the "old, weird America" begins and ends the discussion, and I would agree that this is unnecessarily reductive. Here's where the sledding gets tough, though: in order to get to the crux of Rosenbaum's case we have to wade through stuff about how Rosenbaum hit upon his notion in a pizzeria; and how he thinks he's the only person to have ever read Tarantula (seriously Ron? You think you are the only one who was ever that pretentious?); and how nobody else has ever come up with this idea. Oh, and he also finds time to mention that he went to Yale.

Despite this the article is well worth reading, as I am sure Rosenbaum's forthcoming Dylan book will be. I owe Rosenbaum my current interest in Dylan-- back when I was taking Amtrack to and from New York I regularly read his column in the New York Observer, and a piece he wrote on "I'll Keep It With Mine" reminded me that it had been years since I had listened to any Dylan recording. As I write this I am looking across my office at the shelf where my copy of The Secret Parts of Fortune sits-- it is a valuable set of essays about the America we have become.

As dispicable as Rick Santorum is, I cannot extend my dislike to his daughter, who suffers from the genetic disorder Trisomy 18. That's a tough road, and I wouldn't wish the heartbreak of an ill child on anyone, even Rick Santorum. Santorum is fully deserving of the opprobrium explicit in being numbered among the worst people in the world, however, because the son of a bitch has a sick child and "medical equipment in [his] Virginia home and and a nurse on call that can tend to Bella. Because of these accommodations, Bella only needs to be taken to the hospital when her condition is very serious, a person familiar with the situation told NBC News." Despite this Santorum believes that universal healthcare is something other than an absolute right. Indeed, the argument that people should just by gosh fend for themselves is the centerpiece of his political existence. What kind of monster says that to parents whose children have problems like:

• Heart defects:
• VSD (Ventricular Septal Defect): a hole between the lower chambers
• ASD (Atrial Septal Defect): a hole between the upper chambers
• Coarctation of the aorta: a narrowing of the exit vessel from the heart
• Kidney problems
• Part of the intestinal tract is outside the stomach (omphalocele)
• The esophagus doesn’t connect to the stomach (esophageal artesia)
• Excess amniotic fluid (polyhydramnios)
• Clenched hands
• Pocket of fluid on the brain (choroid plexus cysts)
• Rocker bottom feet
• Delayed growth
• Small jaw (mycrognathia)
• Small head (microcephaly)
• Low-set ears
• Strawberry-shaped head
• Severe developmental delays
• Umbilical or inguinal hernia

The experience of literally everyone I know who has been visited by this sort of misfortune has been that they become advocates for their children and others similarly situated. Rick Santorum's healthcare platform is the opposite of advocacy for patient rights:

• Repeal ObamaCare
• Strengthen patient-driven health coverage options such as Health Savings Accounts coupled with high deductible insurance plans (and repeal ObamaCare policies that gut such options)
• Reduce costs through competition, increased transparency, electronic records, and health care literacy – empowering patients and their doctors with information and options
• Allow patients to purchase health insurance across state lines to gain access to the best insurance coverage to fit their individual needs – patients shouldn’t be required to pay for (and subsidize for others) coverage for services they don’t want or need
• Allow those who purchase their own health care coverage to do so with pre-tax dollars, including a refundable tax-credit for the purchase of health coverage (so that employees are not tied to jobs solely for health coverage, but have portability of affordable coverage)
• Enact meaningful medical liability reform – to increase access, and reduce added costs and inefficiencies from defensive medicine for federal programs and incentivize state liability reforms
• Block-grant Medicaid so that states aren’t burdened by unfunded, crippling, one-size-fits-all federal mandates, so that states can implement solutions to address their unique health care needs.

That's just hateful, frankly. He has less of a chance at the Republican nomination daily, but all over the country there are people who are voting for this guy, and that is dismaying. People should be crossing the street to avoid him. I feel like spitting between my fingers when I hear his name.

Oh, and don't miss Charley Pierce on the state of health care in the US.

New York Magazine is featuring scandals. Here's Norman Mailer.

Oh for god's sake. Does the stupidity ever end?

Punch 'n Pie is back.