Outside Counsel

It's funny how sometimes something is in the air and you just pick up on it. I've never been a huge David Bowie fan, but two weeks or so ago I decided that I wanted to see "The Man Who Fell to Earth". I am pretty sure I hadn't seen it since it since it was originally released in 1976, but it must have made an impression; it was as familiar as a remembered dream. Mr. Bowie has a new recording coming out, but I doubt that I'll buy it. For a long time the only Bowie side on my shelves was "Hunky Dory", and that's still what I go to if I want to hear him, mostly. It's a pretty good record, but it is not, I think, terribly typical of his work, and the same can probably be said of the other albums of his that I've picked up along the way. I'm not sure where I acquired my copy of "Station to Station", although it looks battered enough to reasonably conclude that it was spun at quite a few parties. I like "Low", too, but saying that is tantamount to admitting my core Bowie problem: the Ziggy Stardust stuff, it always seemed to me, was really Mick Ronson; "Low" was really an Eno record, and so on. Notwithstanding his influences it seemed to me that he barely cast a shadow on his own work.

I was wrong. People talk about musical artists "reinventing" themselves, and now over the arc of a long career I can see that Bowie was always more than the sum of his influences. My initial evaluations were made when I was still thinking that "commercial" and "sell-out" were terms of opprobrium. Back then I thought it was odd that Mick Ronson's "Slaughter on 10th Avenue" was such a flabby piece of work, but now I know that it took a special insight of Bowie's to make Ronson's style work properly. You couldn't ever say that Bowie was ahead of the curve exactly, but he was always riding the wave, and I now see that he was doing it all in his own way. That's impressive, even if I don't care to ever hear "Space Oddity" again.
UPDATE: I'm listening to it now--  it is streaming free here.  It's pretty good.

Let's think about what law schools we could do without for a few minutes, shall we? In an effort at fairness let's start with New York, which has 15 law schools, and imports lawyers from all over the rest of the country -- and the world-- as well. In the current climate 15 law schools is at least five too many, and if we could cut that by half that'd be even better.

Let me start by saying that I am confident that all of these schools have produced capable lawyers. I know capable lawyers from most of them. If we weren't in a place where we were exploiting law students I'd say let 'em all be. Since we are in that place, however, let's see how we can carve the number of law schools down. I don't like or trust US News rankings, so I won't use them. Here are the schools:
Albany Law School, Union University.
Benjamin N. Cardozo School of Law, Yeshiva University
Brooklyn Law School
University at Buffalo Law School, SUNY
Columbia University Law School
Cornell Law School
City University of New York School of Law
Fordham University School of Law
Hofstra University School of Law
Touro College Jacob D. Fuchsberg Law Center
New York Law School
New York University School of Law
Pace University School of Law
St. John's University School of Law
Syracuse University College of Law

There are two public institutions here: Buffalo and CUNY. Sorry, CUNY, you are redundant. There are two Catholic law schools here: Fordham and St. Johns. They should merge. Unless Cardozo is doing something amazing that I don't know about I don't see what it is bringing to the party. Lose it. There are two Ivy's and NYU. Cornell's law school isn't All That, but given New York's spread of population I think an upstate Ivy and a NYC Ivy is something we can live with. NYU is, frankly, one of the very best schools in the country. Long Island has two law schools, which is at least two too many: I'd keep Hofstra, and get rid of Touro, and you could talk me into Hofstra. It seems to me that a pretty good rule of thumb is to get rid of any law school that is not a part of a university. Sorry, Brooklyn. Frankly, Albany's tie to Union has always seemed tenuous,  so we can cut it loose, too. Likewise New York Law, and Pace. I see no need for Syracuse-- if you want to go to law school in a cold, grey upstate place go to Buffalo or Cornell.

What's that leave us?

Albany Law School, Union University.
Benjamin N. Cardozo School of Law, Yeshiva University
Brooklyn Law School 
University at Buffalo Law School, SUNY
Columbia University Law School
Cornell Law School
City University of New York School of Law 
Fordham University School of Law (Merge w/St. Johns)
Hofstra University School of Law
Touro College Jacob D. Fuchsberg Law Center 
New York Law School 
New York University School of Law
Pace University School of Law 
St. John's University School of Law  (Merge w/Fordham)
Syracuse University College of Law

At a stroke I have reduced New York's contribution to the present legal crisis by nine law schools. Does my list seem so drastic? Buffalo, Columbia, Cornell, Fordham/St. Johns, Hofstra and NYU. All well-respected, good geographical diversity, reasonable range of tuition. I am sure that many will find this list objectionable, but here's what I find objectionable: Students graduating with non-dischargable debt and no realistic prospects for employment in their field. Any institution of higher learning that isn't troubled by that is, I think, acting in bad faith.

I feel selfish about it but I kind of hope this Oscar Pistorius thing goes on for a while, just because it seems like an interesting window into life and culture in South Africa. What I know about the place pretty much drops off after Cry the Beloved Country. In a way it is a country that has always seemed to me to be sort of an alternate universe United States, like something that Philip K. Dick might have created, and nothing about the Pistorius story so far is convincing me otherwise. It really does seem like an Earth-2 OJ case. Of course, Pistorius' story was always a fascinating one, but now it seems strange that he had a dark side that nobody ever thought to report. I have no real sense of how he was regarded by the sports-following public in SA-- it is a sports-mad nation, I know that. But what kind of a place is it, that people are armed to the teeth, and terrified at the prospect of home invasion? What does it mean to live in a country that was, for generations, defined by institutionalized racism? Is South Africa really just Texas with a Dutch accent?

I think I am going to start collecting useless law schools. Last week we took on four out of the five law schools in Alabama. This week Paul Camos has a piece up at Salon which brings to our attention a consortium of four law schools that sponsor a summer program at which Chief Justice John Roberts teaches: South Texas College of Law, in Houston; William Mitchell College of Law, in St Paul; California Western School of Law in San Diego; and New England Law, in Boston. None of these are affiliated with any university. The only one I'd heard of before was New England, a well-known safety school for people who want to be in Boston. When New England is the classy school on any list that list has problems.

As Professor Campos puts it:

The course Roberts  teaches is offered through a consortium of four law schools that, whatever the justification they may have once had for existing, have devolved into brazen diploma mills.  The four schools offer summer study programs that are essentially student-loan funded vacations for their students, who, if they were going to law schools worth attending, would be working for potential future long-term legal employers in the summer, rather than traipsing around Europe and adding to their enormous debt loads.

I'll be blunter: the day that John Roberts hires a clerk from any of those schools will be a frosty one one for sinners. I'll go further: to my certain knowledge there is not a shortage of either lawyers or law schools in Houston, San Diego, St. Paul or Boston. If any one of these schools are on your list of places to apply you would be so much better off doing anything other than practicing law that it is nearly a crime that they are willing to take your money. I would propose blowing them up, but the buildings might be useful.

My Charcuterie adventure, the Pastrami Project concluded Sunday with a sandwich. I'd rate it a success, and shall now document it here.

I started with a commercial corned beef brisket, which I soaked overnight in cold water in order to de-salt it. I'm tempted to try salt curing my own brisket next time, but will probably just go for a two day soak-- I need to understand the overall  process a little better. The rub I used, on the other hand, was pretty near spot-on. The goal, as set out in the recipe I was following, was to duplicate as closely as possible the pastrami at Katz's Deli. The dominant flavor notes were pepper and coriander, but the garlic powder chimed in nicely. I might bring a bit more brown sugar into it, but that's really a question of flavor balance-- perhaps dark brown sugar would work a bit better?


I was worried that the rub was too fine, but as we will see at the end I got a nice crust, so that turned out to be a non-issue. I wrapped it up like Roy Obison in cling film. The seasoned brisket then sat in the refrigerator for a week.





Saturday I fired up the smoker. The recipe said that the pastrami could take "all the smoke you can throw at it," so I resisted the temptation to give it three or four hours then finish in the oven. It went ten hours, and might have gone a bit longer. I did not resort to the "Texas Crutch" because I was concerned that aluminum foil might react with the rub, but we ultimately attained an internal temperature of 200°.




Right off the smoker. I cut a corner off and had a nibble. The flavor was right there: complex, mouth-filling, but it was a bit chewy yet. I thought about re-wrapping it, but I didn't want to disturb the rub, so I let it rest overnight under a glass bowl, at room temperature.

At lunchtime the yesterday I broke out the wok, and brought on the steam.

The goal was, again, an internal temperature of 200°. The house smelled great. The garlic notes were there, and the coriander. We'd braved the hipster hoards and been to the Winter Market at Horsefeathers the day before and come home with a sourdough rye from the Elm Street Bakery, so I had a hearty artisanal loaf for my foundation.


For some reason A does not go in for pastrami, or deli at all. On those rare occasions when we have been to Katz's together she orders soup. Too bad, because this was a triumph of the sandwich maker's art. As good as Katz's? Oh, no. That is something to aspire to, not something that any reasonable person might expect from a first attempt.
As good as any pastrami I've had north of Rockland County? Absolutely. Although I could have driven to Houston Street in the time it took to make this (seriously-- I would even have had time to find a place to park), I can honestly say that this is the pastrami sandwich I have been waiting to eat in Buffalo since I moved here. I had a Hop Devil with it-- a big improvement over the mostly indifferent beer available at Katz's, but perhaps not the exact right paring. A good pilsner would work better- there is too much going on flavor-wise with the meat for an IPA to be ideal.

Fridays are Law Days (sometimes) at Outside Counsel, and here, as promised, is an interesting case on tort liability and automatic Defibrillators. Miglino v. Bally Total Fitness of Greater N.Y., Inc. addresses an Appellate Division split on the issue. General Business Law § 627-a requires health clubs to have automated external defibrillators on premises, and to have staff trained in their use present at all times. The statute also provides:

Pursuant to sections three thousand-a and three thousand-b of the public health law, any public access defibrillation provider, or any employee or other agent of the provider who, in accordance with the provisions of this section, voluntarily and without expectation of monetary compensation renders emergency medical or first aid treatment using an AED which has been made available pursuant to this section, to a person who is unconscious, ill or injured, shall be liable only pursuant to section three thousand-a of the public health law.

Public Health Law §3000-a is New York's 'good Samaritan' statute. So, here's the question: If a health club has to have an AED, and somebody who knows how to use it available at all times, and the facility and the trained operator are insulated from liability, is there a duty to use the device, and can liability be imposed for the failure to do so? (Actually, that's two questions.) In Miglino the plaintiff's decedent was lying on the floor, pink, breathing and with a faint pulse. The employee did not use the AED on him because he'd been trained not to ins situations involving a breathing individual with detectable pulse." (There were also a couple of club members who were actual doctors working on the guy.) Nevertheless, the plaintiff's decedent became the plaintiff's decedent, and then the lawsuits started. The health club moved to dismiss for failure to state a cause of action, arguing that Public Health Law §3000-a immunized it. Interestingly, they submitted affidavits establishing that they had the proper equipment and the proper personnel, with the proper training, on the premises. The plaintiff argued that the failure to use the AED is what killed the guy, and submitted an expert affidavit to that effect. In other words, if they'd used the AED and he died, that would be one thing, but they didn't, and they had an affirmative duty to do so.

Supreme Court denied the motion to dismiss, and here's where it gets strange. In it's decision, Supreme Court "commented that Bally's evidentiary affidavits made out a 'strong, but not conclusive showing that the plaintiff does not have a cause of action.' The court added, however, that 'plaintiff [was] not obligated to come forth with evidence as he would on a motion for summary judgment to withstand dismissal'; as a result, the judge, 'being only concerned with the sufficiency of the plaintiff's pleadings, and not evidentiary matters,' determined that the complaint stated cognizable claims." Got that? Supreme Court said, "You made the wrong motion."

The Appellate Division affirmed, holding, that the General Business Law "imposes an affirmative duty of care upon the facility so as to give rise to a cognizable statutory cause of action in negligence and that the complaint stated a cause of action 'based solely upon common law negligence' because "LaGrega assumed a duty by coming to the decedent's assistance".

Leave to appeal to the Court of Appeals  was granted on the certified question, "Was the opinion and order of [the Appellate Division], dated December 27, 2011, properly made with respect to the cause of action asserted against [Bally]?"  The Court of Appeals, with Chief Judge Lippman dissenting, holds that there is no affirmative duty "running from a health club to its members to use an AED required ...onsite," but affirms the Appellate Division's decision any way, because the defendant moved to dismiss instead of moving for summary judgment.

Here, the complaint asserts that Bally did not "employ or properly employ lifesaving measures regarding [Miglino]" after he collapsed. Bally's motion is supported by affidavits that contradict this claim, by purporting to show that the minimal steps adequate to fulfill a health club's limited duty to a patron apparently suffering a coronary incident — i.e., calling 911, administering CPR and/or relying on medical professionals who are voluntarily furnishing emergency care — were, in fact, undertaken. But, as noted before, this matter comes to us on a motion to dismiss, not a motion for summary judgment. As a result, the case is not currently in a posture to be resolved as a matter of law on the basis of the parties' affidavits, and Miglino has at least pleaded a viable cause of action at common law. 

I am looking to the heavens and beseeching Ronald Dworkin.Why, I ask, did no-one think to invoke CPLR §3211(c)? "

  (c)  Evidence  permitted;  immediate  trial; motion treated as one for
  summary judgment. Upon the hearing of a motion  made  under  subdivision
  (a)  or (b), either party may submit any evidence that could properly be
  considered on a motion for summary judgment. Whether or  not  issue  has
  been  joined, the court, after adequate notice to the parties, may treat
  the motion as a  motion  for  summary  judgment.  The  court  may,  when
  appropriate  for  the  expeditious disposition of the controversy, order
  immediate trial of the issues raised on the motion.

This thing went all the way to the Court of Appeals, and the Court of Appeals said the defendant was right, but too bad, because you made the wrong motion. Amazing.

Funny how it goes: some days there is very little of note to write about, and some days there is too much. Oscar Pistorius. The Court of Appeals clarifying New York's rule regarding liability in cases involving Automatic External Defibrillators (I know!). The Pastrami Project. There'll be time for all that some other day, but right now Outside Counsel would like to take a moment to mourn the death of legal philosopher Ronald Dworkin. "Taking Rights Seriously" was a formative reading experience for me in law school, and his regular contributions to the New York Review of Books were always a challenging, happy surprise whenever I came upon them. (A good example is this one, on Bush v. Gore.) I hadn't realized that he'd worked at Sullivan & Cromwell. I feel a connection there, and our respective statuses at that institution pretty much sum up our place in the legal universe: Dworkin represented the Wallenberg family, and I worked in the mailroom. From time to time I find myself vexed that our glamor profession spends more time on the technical intricacies of practice, and too little time considering the questions Dworkin was trying to find answers for. We hold ourselves out as a learned profession, but there is a determined streak of anti-intellectualism in us that drags us down. The present trend in legal education exacerbates this: students want to take "practice oriented" courses (like mine) and classes in things like Philosophy of Law are deemed too esoteric to bother with (unless one is a full-time academic, or plans to become one). That's a shame, because we should be involving ourselves in the larger question of why we do what we do, and Dworkin was one of the last, I think, who invited us to do that in a systematic-- dare I say scientific?-- way.

I mostly like his playing on other people's sides ("Lush Life" absolutely, and Jazz Messengers any time) but Donald Byrd was pretty undeniable pretty much all the time. The world just got a bit less funky.

Lexis-Nexis just sent me review copies of the Second Edition of James Alexander Tanford and Layne S. Keele's "The Pretrial Process" and its document supplement. I've only just glanced at them so far but they seem like they would be a useful foundation for a course similar to mine. I note that they are not too unreasonably priced: the textbook is $49 bucks and the supplement is $25. I'd be inclined to assign just the supplement, I think.

Professor Tanford teaches at Indiana Bloomington, and I am counting on the Hoosiers this March. Professor Keele was a student of Professor Tanford's and now teaches at the Faulkner University School of Law. He graduated from IU in 2005, clerked for a Sixth Circuit Court of Appeals judge, and practiced in the IP department for the Dallas office of a fairly large firm, I guess for four or five years. For the rest of his life he will say, "When I was a litigator..."

Alabama has five law schools. If you'd put a gun to my head this morning I'd have guessed that it had only one-- the University of Alabama-- or maybe two, the other being a part of a historically black university. I'd have been wrong. As far as I can tell there is no HBCU law school in Alabama. What they've got are a law school at 'Bama (Roll Tide!); the Birmingham School of Law (providing "high quality affordable legal education to individuals who choose not to attend a traditional law school for financial, family or occupational reasons"); the Cumberland School of Law, at Samford University (the 11th oldest law school in the United States-- Cordell Hull attended Cumberland, which moved to Birmingham from Tennessee in 1961);the Miles College School of Law a stand-alone entity, unaffiliated with any university, founded in 1974; and Faulkner ("As part of the Faulkner University community, the School of Law shares Faulkner University's mission to glorify God by embracing academic excellence and emphasizing a strong commitment to integrity within a caring Christian environment.") This Gavin Stevens fan is sad to report that just as there is no connection between Miles Davis and Miles College School of Law there is likewise no connection to William Faulkner at Faulkner.

So here's my question: Does the Yellowhammer State, with a population of nearly 5 million folks, need five law schools? Why? One's basically a night school; one looks sketchy and religious; Faulkner is just plain old religious; and one-- Cumberland-- is a Tier 3 school that wasn't useful enough to its hometown to hang on there. I mean, it's not like any of these places are rolling out civil rights lawyers, are they?  I don't want to break anybody's rice bowl, but wouldn't it be better for all concerned if Professor Keele and everybody else teaching law anywhere except Tuscaloosa all went back to practice? Professor Keele's book looks fine, and his other publications appear legit, but I can't tell you that he is really adding anything to the Science of Jurisprudence that he couldn't contribute from the private sector. And Professor Keele seems like he's probably among the cream of the State of Alabama law faculty crop. 

When this profile of Jack White appeared last spring CLA pronounced, "Oh my god, Jack White is Willie Wonka." We've been thinking for a while about whether there are contemporary musicians who have had the kind of cultural significance that the artists we grew up with had, and I am becoming increasingly convinced that White may be one. Consider "Seven Nation Army", for example. Is it the greatest sports stadium anthem of all time? A low bar in some ways: it's competition is "We Will Rock You" and "Rock and Roll (Part II)", but "Seven Nation Army" utterly transcends those. Or think about the guitar god documentary, "It Might Get Loud", which featured Jimmy Paige, and The Edge along with White. U2 mostly just make me tired, but White was every bit as cool as Paige, and that's no small feat. Or, and this is the point I've been building to, consider that White's record label is about to start issuing something like 25,000 rare blues tracks, just because it's important music, with no expectation of profit. Who does that? How is it possible to be as cool as Jimmy Paige and the Smithsonian Institutes and still have time to be writing great rock and roll?

I am going to have a run at making pastrami, using this recipe. For the most part my deli needs are satisfied by the corned beef at Risa's, but the pastrami there doesn't quite get it done for me. Probably nothing will ever surpass the Katz's experience. I wonder where I'd get pickled green tomatoes around here?

The process will take about a week, but what the heck, it's February.

A word about Best Short Film (Live Action). First, mad props to the Market Arcade Theater for screening these. I like shorts, but like their cousin, short stories, there aren't many outlets for them. It's too bad: 20 minutes is a pleasing length for a movie. Second, if your Oscar pool includes this category, here are my thoughts:

• "Assad" A Somali boy is befriended by a fisherman, who wants the kid to follow his profession instead of becoming a pirate. 
• "Buzkashi Boys" The son of a blacksmith and an orphaned beggar in Kabul dream of becoming  Buzkashi riders. ( Buzkashi is the national sport of Afganistan-- polo with a dead goat.)
• "Curfew" A man estranged from his sister and her daughter takes the kid bowling and finds redemption. 
• "Death of a Shadow" A man takes pictures of people at the moment of their death, capturing their shadows. It's German, with a sort of steampunk aesthetic.
• "Henry" An Alzheimer's patient moves between his memories and his present reality in the hospital.  

Bet on "Buzkashi", which seemed to me to be the most fully realized.They were all pretty dark, although "Assad" made me happy at the end, and "Curfew" ended on an up not and had a pleasing dance sequence.

How could this past weekend have been improved? Friday night, dinner with friends. I broke my own rule and had the duck, even though A also ordered it. It was great. Then to the Market Arcade Theater for Oscar-nominated shorts. (Tip: I'd say the USA/Afghanistan produced "Buzkashi Boys" is a lock, if your pool has Best Live Action Short, but I also liked "Asad"). Saturday was the final in my Discovery class (grades out today). This was a small group, but they were a lot of fun, and they worked exceptionally hard. I was really pleased with their performance.

And then Sunday. The race that I have my current longest streak with is Mr. Ed's Superbowl Warm-Up, in Middleport. Nobody said anything about running it this year, so I was going to give it a miss, but as I sat at the kitchen table drinking coffee the doorbell rang. It was Jim. Not having heard from me to the contrary he assumed I was going, so I threw on some running stuff and went. It was 17° and clear, with fresh snow on the ground, but with the road and the tow path cleared. Part of the point of Mr Ed's is that it is a winter race, so you'd have to say that conditions were optimal. End it with a pretty good Super Bowl, and there was nothing not to like.

This NYTimes obit hardly does Ed Koch justice. Those were weird times in the City. Where are the Bess Meyerson anecdotes? The Chinese restaurant recommendations? The quips, the jokes, the jabs? C'mon, that Playboy interview where he talked about living upstate as being the "the choice between living with people or living with animals" and driving to Sears to buy a gingham dress deserved to be quoted in full. Back then New York was thought to be ungovernable, and I probably disagreed with Hizzhonor on more things than I agreed, but his candor was admirable, and his style was New York to the core. This Observer piece is somewhat better, but it is possible that there really isn't any more to say about the man that he didn't already say himself.