Outside Counsel

Pet drama this week. All is well, but A and I are pretty wrung out, so we are going to go to Toronto with Judge Mattison and his lovely wife, Dr. Mattison. Grey had been looking peaked, and Orange-- well, because she is so fat she, uhm, is not as fastidious in her personal hygiene as she might be, and needed to have her butt shaved so we had a vet appointment scheduled for both for yesterday. Tuesday we came home from work. Grey was fine. She spoke to CLA on the phone. Twenty minutes later A called me in and I saw that the cat's eye was swollen shut. We call the vet, get the voicemail ("If this is an emergency...."), then we drive out to Amherst to sit in the animal urine reaking Emergency vet's office until 10:30. To pass the time we argued about whether to let the girls know what's going on.The cat can barely stand.

They run blood. RBC down, WBC up, can't tell what's wrong with the eye.

Plus this is the sort of vet who calls the cat a kitty, me the kitty's daddy. and, of course, A the kitty's mommy. This is embarrassing for Lang and me, and fills A with a Hulk-like rage. ("Actually, our legal status is that I am her owner" she does not say, but thinks so loudly I can hear her.) The next day we bring her to the real vet, who starts in right off with The Talk. ("You have to ask if she is going to be the cat that she wants to be.") He is very sympathetic, and even knocks his fee down because we had to go to the ER vet. They admit Lang, and they tell us that if the more advanced bloodwork comes in bad they will call later that afternoon so we can be there when they give her the needle. They say it nicer than that, but then they don't call. We check in. IV antibiotics and fluids are working, and she is a big hit, flirting with all the staff.

That evening, wrung out, I decide it is time to call the girls.These are moist conversation, to say the least. I cry at the end of Lassie Come Home, and the cat has been with us for 15 years. Caroline wants to book a plane and blow off half a week of class. This, of course, would be completely around the bend. If I were in the hospital she'd Skype me. We talk her down (a little-- if she'd gotten out of a cab at the vet the next morning I'd have killed her, but I wouldn't have been surprised). A is mad at me-- I got them wound up when we don't know anything definitive. I wake up the next  morning knowing that there will not be any cat vomit to step in on my way to the bathroom, but still sad.

We take Orange in for her scheduled appointment. Lang is having breakfast we are told. Corned beef hash with a poached egg, wheat toast and a saucer of crème fraîche. Meanwhile, Orange is having her moment. Orange's repertoire of sounds is pretty limited. She walks through the house contentedly purring for the most part. Sometimes in the summer she will sit in the window and emit a soft, creaky "mew" that sounds a little like a stuck drawer, but that's about it. At the vet, however, she gets Metal. Seriously, she started growling like a lion in the zoo. She also hooked her front paws over the edge of the table and refused to budge, then, out of pure hatred, shit on the table. We didn't raise her like that, and A was quite embarrassed.  The vet was cool about it-- "We've never had a stool sample from her, and now we do," he cheerily announced, then it was off to the other room with her for The Procedure. That elicited some interesting sounds-- the dog that was barking in the waiting room stopped in mid-sentence. We checked in on Grey, who had a red bandage on her front leg which secured an IV but otherwise looked okay. They still didn't know what was going on with her eye. WBC was resolving, RBC still low, but kidney function was fine, and there wasn't any reason to suspect cancer or feline leukemia. They kept her until the late afternoon and discharged her with a bunch of antibiotics that Grace will have to give her. I have bet on race horses that cost less than this little adventure.

This is why polling data on the popularity of the ACA (or most other public policy matters) is suspect. From MSNBC:

Do you agree with this ruling?

• Yes. Roberts provides a rational, nuanced decision in upholding the law.
• No. The reasoning in this decision is fractured and incorrect.
• I don’t know. I’ll have to read the whole decision, along with the concurring and dissenting decisions, before I decide myself.

 Now, just what, I say what, in the foggy blue morning are we supposed to make of this? It couldn't more intellectually dishonest if Scalia, Alito, Thomas and Kennedy wrote it.

I haven't made my way through the whole opinion yet, but although this is a big win I suspect that what happened here is that Roberts joined the majority in order to rein in Commerce Clause jurisprudence. By holding that the ACA mandate is permissible under the taxing power he has enabled the right to argue that Obama has "raised taxes" on the poor and middle class. In other words, even though he upheld the statute the CJ still managed to create a partisan issue for Republicans to campaign on. Eleventh Dimensional Chess? Maybe. I think this decision will make advancing a progressive agenda in the future a more difficult proposition than it already is.


Also, I think Kennedy is a frickin' tool.

Damnit, I'm stumped. I recognize this, but I don't know what it is. UPDATE: It is the logo of Phoenix, from the X-Men. I am truly ashamed, and feel as though I should turn in my nerd badge. I probably have no right to it anyway, because there are advanced nerds out there who are driving around in cars like this:
(Photo courtesy of CLA.)

The Hon. Richard Posner weighs in on Miller v. Alabama, yesterday's Supreme Court decision barring sentences of life without parole for minors. He makes so many good points that it is tempting to block and copy the whole thing, but instead I will merely urge you to do so. A few teasers: The decision "is a good illustration of how unmoored constitutional law has become." Indeed, your Honor. Why, I was just saying.... Also this:

Is the United States a maturing society? Surely not in the realm of criminal law, a real disaster area—we imprison a higher fraction of our population than any civilized nation (and than most of the uncivilized ones), many for trivial crimes involving mind-altering drugs less dangerous than alcohol or cigarettes; life sentences are imposed with abandon; prosecutorial discretion is very broad and often exercised irresponsibly; and judges' sentencing discretion, also broad, is exercised much of the time in an intellectual vacuum.

Before she departed for her summer in the Adirondacks I proposed watching Network to LCA. She didn't get far with it, so we moved on, but it kinda grabbed me, so I went back to it last night. It mostly holds up, although not quite in the way I'd expected. Even in the waning days of the Ford Administration I think everyone recognized that it was over the top, but it was such a fat, juicy subject that who could blame Paddy Chayefsky for trying to stuff as much into the screenplay as he could? Of course the outrageous programs that Diana Christensen (a Mizzou grad in the movie) concocts seem plausible today -- they seemed almost plausible then. She'd have understood Jersey Shore immediately. Where it loses its way today is the melodrama, and even that comes close to still working. Faye Dunaway-- what an interesting looking woman. (Best Actress for this.) She's smoking hot in this, and she manages it with complete restraint. Robert Duval and William Holden can chew scenery with the best, but they can also accomplish amazing stuff with a cocked eyebrow or a palm across the forehead. Peter Finch won Best Actor for his performance (posthumously) but his is really the least interesting character-- it would be a better movie if it stuck with his torment, but he quickly becomes two dimensional, and the movie suffers for it. Rocky won Best Picture that year, beating not only Network, but also All the President's Men, Bound for Glory, and Taxi Driver. Funny field, when you think about it-- only Taxi Driver really endures. It seems like 1976 was sort of an off year. I'd be hard-pressed to come up with a better roster of nominees, although I suppose I should go back and revisit Missouri Breaks.

"Democrats will confine the unfortunate to many forms of deprivation, but not deprivation of basic medical care. Republicans will. The GOP is the only mainstream political party in the advanced world to hold this stance". Here's how it goes: people like everything about the Affordable Care Act except the mandate, and their dislike of the mandate is largely because they are misinformed. The whole thing collapses-- covering children up to the age of 26, eliminating denial of coverage for preexisting conditions, Medicaid extensions, the works-- without it. The constitutional objection turns on an essentially political rejection of well-settled law, but don't think that there aren't five justices capable of doing that. Then think about stare decisis generally. What won't they find unconstitutional if they dislike it? The whole deal with constitutional jurisprudence is that it is supposed to be a coherent, reasoned analysis, built on precedent rather than prejudice. That's not what I'm seeing happening at all.

I understand the impulse to approach constitutional change cautiously-- the document has been around for a long time, and leaving aside most of the 19th Century it has worked fairly well. Nevertheless, it seems to me that the case for abolishing the Electoral Collage has been pretty well established. It is undemocratic, cumbersome, and damned if it doesn't lead to exactly the sort of bad results that political scientists have predicted for years. Changing it, however, has proved to be a much more difficult task than anyone could have predicted, in part because those aspects of it that are the least democratic are what the people who would be adversely affect by change like the most. Like the Senate, it grants disproportionate political weight to lightly populated states, and don't think for a moment that Senators don't know that. The last really interesting political cause I worked hands on with was when I worked at Birch Bayh's Judiciary Subcommittee on the Constitution, researching Electoral Collage issues, and Senator Bayh was, I think, the last person to try to fix the problem by way of constitutional amendment. The fix that is currently favored is for the legislatures of the states to join the National Popular Vote Interstate Compact. Basically this amounts to an agreement by the states to cast their electoral votes for the winner of the national popular vote. There are reasons, which I won't go into, for why this is an imperfect solution, but it is a big step in the right direction. Since New York is one of the states that is effectively rendered irrelevant by the Electoral Collage you'd think we'd be on board with this, but we aren't. Come to find out that it is my college classmate, Joseph Morelle who may be holding things up. I should give him a call.....

"Do you always watch for the longest day of the year and then miss it? I always watch for the longest day in the year and then miss it."

There have been a number of federal prosecutions lately that impress me as pointless wastes of resources, and here comes another one.

I believe I've mentioned that EGS is writing a food column for the Columbia Daily Trib. It is hilarious.

Rough week for guitar players, I'm afraid. First Pete Cosey (I've been listening to "Get Up With It" and "Electric Mud" since I heard), now Bob Welch. Like the Yardbirds or the Bluesbreakers Fleetwood Mac produced a number of notable guitarists. I guess that's how it went in the British blues scene back then. Welch's stretch with the band represented a stylistic departure, a move away from the blues and towards a more -- I hesitate to say pop, but that's what it was-- a pop sound. Some of this was probably attributable to Christine (née Perfect) McVie's presence. "Bare Trees" was successful, and it's follow-up, "Penguin" was the band's highest charting album to that point. Welch also brought "Hypnotized" to the band on his last album with the Mac, "Mystery to Me". His solo career is probably best summed up by noting that his biggest hit after leaving the band was a remake of "Sentimental Lady", but there is no denying that he was a talented cat. He kept plugging at it, and it's sad that it ended this way for him. A possible clue-- I just went onto iTunes, and none of the sides he cut with Fleetwood Mac are there. Amazon has them as CDs, or on vinyl, but not as mp3s. This strongly suggests that the guy who saved Fleetwood Mac from commercial oblivion hasn't been seeing a lot of mailbox money lately, and if that's true it's a crime.

Rest in peace, Ray Bradbury, and thanks for all of it.

When I started working summers in New York City the subway was 35¢ cents. New Yorkers know that the price of a slice of pizza is tied to the cost of a token, and a 35¢ cent slice meant that my daily lunch budget was a buck-- two slices and a Coke. Sometimes I'd splurge, but three bucks was my outside limit, my payday treat to myself. The culinary offerings in those days were limited -- there were the Sabrett hotdog guys, and you could get a sketchy gyro, but that was mostly it. Then one day, in front of Federal Hall, a tall guy dressed in a coolie style straw hat appeared. He was pushing a cart with a sign on the side that read, "Kung Food Presents: Char Su Bau (Chinese Roast Pork Buns)". They were outside of my budget (were they a buck fifty? I can't recall.), but it was payday, and I was sick of pizza, so I bought one. The bau was about the size of my hand, and about the color of a hamburger bun, a sweetish roll with an ambrosial barbequed park filling. The sweetness of the bun beautifully balanced the salty complexity of the filling, and I wolfed it down. I have often thought about the Kung Foods guy since. He was not Asian-- he was a tall, thin white guy. Probably he bought the bao in Chinatown, probably he marked them up substantially, but maybe he made them himself. Was he an enterprising Asian Studies major? He was certainly ahead of his time-- nowadays a cart like that would be no big thing, but in 197X it was unique. Since my first encounter with Char Su Bau (which is how he spelled it) I have made a point of eating it whenever I can. Usually barbeque pork bau are steamed, and those are nice too, but I like baked ones best of all. Last week LCA found a recipe, and although it is a a several day process-- marinating, roasting, saucing, making the dough, filling and baking-- she was kind enough to undertake the project, and she nailed it. Her bau looked and tasted just like the bau I bought from Kung Foods on paydays. Wow.

Interesting development on a number of levels: the Appellate Division, Third Department, has held that being called gay is no longer defamation per se. "[P]prior cases categorizing statements that falsely impute homosexuality as defamatory per se are based on the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual," the court says, which seems about right to me. See, Yontay v. Mincolla, --AD3rd-- (Third Dept. 2012). The Marquess of Queensberry is spinning.