Outside Counsel

To Alfie last night,  the season finale of Hallwall's fine Jazz Noir series, expertly curated by Ed Cardoni. A few years back we had a bit of a Michael Caine retrospective chez Big Pink and I recalled being struck by the Sonny Rollins soundtrack. I am not as thoroughly versed in Rollins-ology as I should be, but it appears that the music on the soundtrack, although composed for the movie, is not the same as the music that appears on the impulse! album: different sidemen, and come to find out Oliver Nelson was the arranger and conductor on the LP, working with a 10 piece band. I do not have the sense that Rollins was a collaborator on the movie in the same sense that Miles was onAscenseur pour l'échafaud-- the soundtrack on the latter is as important as the actors, and is very nearly a character in its own right-- but Gilbert uses Rollins' music effectively to convey the urban atmospheric, just as he uses the industrial London backgrounds to suggest the inner landscape of the title character. It is interesting that the title character would probably not have been a Sonny Rollins fan, and it is likewise interesting that although we never really get a good look at Ruby's lover we already know he is younger than Alfie because we are shown the guitar. Rock and Roll was at that moment poised to take over from jazz as a badge of authenticity in film, I think.

What to make of the movie? Well, it seems to me that it mostly gets carried by the strength of the performances-- Caine's Alfie is despicable, naturally, but he also manages to display enough vulnerability to make us understand his attraction. I think it is notable that although the women he seduces gradually lose patience with him, at the end we find ourselves liking him more than we have at any other point in the movie. One way that Gilbert shows us this, it seems to me, is during the infamous abortion sequence. Throughout the movie we are addressed by Alfie directly as he seeks to justify himself, and indeed, at the start of the scene he breaks the fourth wall to explain that procuring the abortionist was "the least I could do." We then see that he means it: Lilly has brought all of the money-- £25. Alfie doesn't stay for the procedure, but later borrows the money from his friend. We see him secretly slip the money into Lilly's purse, in perhaps the sole decent act he performs in the entire movie. He is subsequently rejected, twice, and this also shows us something we hadn't seen. Does this redeem him in our eyes? Not quite, I think. The movie ends, as it began, with a shot of a scruffy dog, which we are meant to see as a surrogate for Alfie, just a hound, on the hunt. Is Alfie more self aware than the dog? Just barely.

I was punk rock last time disco was big. In the US there was a divide between punk and disco,
at least at first. Those barriers broke down ultimately-- disco is just R&B after all, and if Talking Heads and Blondie could bring the funk than there was no reason not to dig the sounds that they were digging. Right now I am finding that Daft Punk is pretty great, and I am thinking that "Get Lucky" may be a contender for my Personal Hit Single of the Summer.

Charley Pierce articulates a point that I've been musing over lately:

I don't believe there ever has been a time like this in our history. We have had periods of severe political polarization before, but those were periods in which the government was polarized because of conflicting ideas of what the national government should do. Right now, we have a polarization based on the fact that an uncontrollable faction of one of our two political parties — a faction with its own sources of money and power that exist outside conventional political accountability — has decided that the only thing that the national government should do is nothing, a faction that is perfectly situated to make that at least part of a political reality, and a faction that is growing even faster out in the states than it is in Washington. What is leadership if there's more political profit in ignoring your leaders than in being led? Who, in that case, rules? The truly terrifying answer to that is that nobody does. Or, at least, nobody who is elected does. 

I think that is is pretty true. My PoliSci mentor, Professor Edward Janosik, used to tell us that in the US political parties were essentially non-ideological. He was right, naturally. My summer reading at the moment is present volume in Robert Caro's Lyndon Johnson epic, The Passage of Power, and there it is: Richard Russell and John F. Kennedy, Hubert Humphrey and John Stennis-- all Democrats. You could play the same mix'n'match with Republicans, and that was the point-- although the two parties were vying for political advantage, they were not so polarized by  ideology as to be incapable of functioning.That said, the number of veto points embedded in the American system of government means that it is not difficult to shut things down: as Caro notes, that's exactly what happened to the JFK administration. I would be interested in seeing an empirical study on Congressional stalls since, say, the Truman administration, because I am not so sure that what we are seeing at present is actually unique.

Every night, after dinner, we have the same conversation: "Wanna watch a movie?" "Okay, what do you feel like watching?" "Something good." "Something from the '40's or ''50's?" "No." So then A. picks, and it can be a somewhat haphazard process. The other night she found a listing about two brothers in a small Southern town who solved a mystery. The name was familiar to me, but I couldn't recall anything about it, so we took a flyer. The name of the movie was The Paperboy, and the reason I couldn't recall anything about it was that last year, when it was released, the big noise was about Nichole Kidman's performance. I have a rule about movies with Nichole Kidman: I don't watch them. (I used to have a rule about Matthew McConaughey, but I'm coming around with him.) The buzz was about the scene when Kidman urinates on Zak Efron, but there are other highlights. Suffice to say that although A.'s description made it sound like it might be a sort of Scooby-Doo or Hardy Boys romp, it turned out to be something quite different. Some of it was kind of good. McConaughey was mostly very good, and John Cusack, who I pretty much always like, showed considerable range. Kidman-- well, the plot called for her to rebuff the Efron character's advances because of their age disparity, but there really didn't look like there was one. She looked slutty, sure-- that was kind of the point-- but she didn't look to be all that much older than Zack Efron, and could have easily been playing someone who was, maybe, a senior when he was a freshman, and now they are both out of school, so who cares? She is 46 years old, Nichole Kidman, which makes her twenty years older than Efron - pretty much the exact age disparity as in the movie. What I'm saying, I guess, is that Nichole Kidman doesn't play her actual age. That's nice for her, but it created suspension of disbelief issues for me.

The Village Voice has fired everyone I ever cared about there, and is dead to me now, but Michael Musto's review captures it nicely:

"The Paperboy--the Lee Daniels-directed tale of Southern trash investigating yet more trash--certainly seems to have all the elements:
Nicole Kidman as an overripe sexual Barbie doll
The infamous urination scene. (Kindly let me hold it in and not describe that one more time. It's leaked out everywhere else, so just go there, OK?)
Zac Efron writhing around in his extremely tighty tighties. A lot.
Macy Gray as the maid who jokes with Zac about masturbation issues.
And a big star as a gay who gets hog-tied.
On paper, it sounds like the ultimate good trash film--even beyond the Beyond--and totally up my dark alley.
Then why did I find it so damned dull?"

I don't know if dull  is exactly the right word: I think I'd go with incoherent. At the end of it I couldn't really tell what the point was supposed to be. Maybe it is one of those Quentin Compson things: You have to be from there.

Movie Director baseball jerseys.

Happy Birthday, Bob. Slate features a map that purportedly shows every street and town Dylan has sung about. I ran it through my head for a moment but couldn't come up with a Buffalo reference, and the map doesn't show one, so I checked bobdylan.com. Sure enough:

Wanted man in California, wanted man in Buffalo
Wanted man in Kansas City, wanted man in Ohio
Wanted man in Mississippi, wanted man in old Cheyenne
Wherever you might look tonight, you might see this wanted man

Granted, an obscurity, but I am pleased to make this birthday contribution to Dylanolgy.

Fridays are Law Days at Outside Counsel (sometimes). Wager v Pelham Union Free Sch. Dist. is a
fun decision-- apparently a case of first impression-- about venue. In New York venue can be based on the residence of any party, or on the place where the claim arose-- or on a few other specialized circumstances. Among the later is the rule that municipalities and municipal corporations are to be sued in the county where they are located. The unfortunate Mr. Wagner was working on the roof of a school in Westchester when it collapsed. He was taken to Jacobi Hospital in the Bronx, where they malpracticed him up. His lawyers brought two actions: a Labor Law § 240 claim against the Westchester school district, commenced in Westchester pursuant to CPLR 504(2) and a med mal action against the New York City Health and Hospitals Corporation, commenced in the Bronx, pursuant to Unconsolidated Laws of NY § 7381, which requires  an action against the NYCHHC to be commenced in the county within the City of New York in which the cause of action arose.

After issue was joined and some documentary discovery was exchanged, the NYCHHC moved in the Supreme Court, Westchester County, to consolidate both actions in Westchester County. Why would they do that, Bill? Well, the difference between juries in the Bronx and juries in Westchester is something like the difference between North and South Korea.  NYCHHC routinely gets clobbered when it tries cases on the Grand Concourse-- why wouldn't they take a flyer in White Plains? Naturally the plaintiff objected. A § 240 case in Westchester isn't a terrible thing, but a med mal case there is a good deal less desirable. But hey, isn't venue jurisdictional in cases against entities like NYCHHC (or the Putnam Union Free School District)? After all, Unconsolidated Laws of NY § 7405 expressly provides that the venue provisions favoring the NYCHHC supersede inconsistent provisions of any other general, special, or local law, such as, in this instance, CPLR 504(2).

Well, no says the Appellate Division, Second Department. The NYCHHC expressly waived the venue provision contained in section 7401(3) of the New York City Health and Hospitals Corporation Act for actions brought against it. Defendants are allowed to waive improper venue-- so it follows that they should be able to waive the venue provisions of § 7405 as well. Even though venue provisions are couched as manditory they are not jurisdictional. The remedy when a case is improperly venued is not dismissal-- it is a change of venue. "Such venue provisions are designed to further the convenience of governmental entities, including the NYCHHC and its employees, who are in public service."

The placement of venue rests in the sound discretion of the court, and an order determining venue should not be disturbed in the absence of a showing that the court improvidently exercised its discretion.

So, even though the statutes use the word "shall", venue is not necessarily a straight up question of law; the standard of review is whether or not the court abused its discretion in setting the venue in one place or another.

All of this raises an interesting tactical question. The change of venue took place as part of a motion to consolidate made by NYCHHC. The plaintiff opposed consolidation, but did not raise that issue on appeal.  Had the plaintiff done so,the Second Department would have had to consider whether consolidation was appropriate. It would have been a bigger record, and a more expensive appeal, but it seems to Outside Counsel that, in addition to all the causation arguments that were probably raised below it might have made a difference to the Appellate Division that Labor Law § 240 is a strict liability statute. Chances are that by the time the matter is trial ready summary judgment as to the school district will have been granted, and the proof as regards that entity will be exclusively on damages. Sure, there may be common questions as to causation, but I think one could argue that the procedural posture of the two claims would be confusing to a jury-- even a jury of Westchester sophisticates. By not appealing nisi prius' decision to consolidate the plaintiff gave up that argument, and now he will have a Westchester jury.

FEMA has an informal "Waffle House Index" to gauge the severity of local disasters.

Craig Fugate, the head of the Federal Emergency Management Agency, came up with the

idea of the "Waffle House index" as an informal way of measuring the impact of a disaster. The chain, which has a large number of branches in tornado-prone areas, has a robust emergency management plan.
The index has three levels. If the local Waffle House is up and running, serving a full menu, a disaster is classed as green. If it is running with an emergency generator and serving only a limited menu, it is a yellow. If it is closed, badly damaged or totally destroyed, as during hurricane Katrina, it is a red.

A couple of thoughts. I've only been to a Waffle House once, and it made me pine for Buffalo's old Your Host* restaurants. That's not a good thing. Also, since Buffalo doesn't  have a Waffle House, what would FEMA use here? I propose Mighty Taco.

* When my brother, GJA, first visited Buffalo he thought the store signs on the ubiquitous Your Host
restaurants said "You're Lost". In many ways this was probably a better name for them, since just about the only time anyone ever went to one was after 4:00 AM, when the bars had all closed. Lost indeed.

"The tornado damage near Oklahoma City is still being assessed and the death toll is expected to rise, but already Sen. Tom Coburn, R-Okla., says he will insist that any federal disaster aid be paid for with cuts elsewhere."

Honestly, this is just despicable. To put it in context, Oklahoma is a net recipient of federal tax dollars. (New Yorkers pay, per capita, $4,502 a year towards the federal budget. Oklahomans? $-376) In other words, Senator Coburn is actually proposing that the disparity be increased, because I'm not sure why. The more affluent should pay more in taxes, of course, and poorer people should receive more assistance. I have no quarrel with that. My complaint is that this principle should be followed generally. I begrudge the people of Oklahoma nothing-- when disasters occur, the federal government should assist, and because I am fortunate enough to live in a sensible place where tornadoes don't, at the moment, knock down whole damn cities, I'm fine with chipping in. Just don't tell me that doing so means that other people should get screwed. We could empty out Oklahoma and nobody'd miss it. J.J. Cale could move to Texas and that would be that culturally. It's only other contribution is the Red River Rivalry in college football, and I imagine Austin would find something else to do for that one Saturday a year. 

Ray Manzarek, dead. I go around and around with The Doors. Sometimes I think they were pretty cool, other times I think they were the worst sort of pretentious hippie band. "The scream of the butterfly..." Seriously? That's the kind of lyric that Mel Brooks would write for Dick Shawn, and The Doors pretty much dropped a line like that into every song. So then I think, well, they could play-- maybe the problem was Jim Morrison. Obviously that's not true though-- lots of people took flyers on the Direct-to-the-Cutout-Bin post Morrison album "Other Voices" only to discover that they'd just been burned out of a buck ninety-nine. You have to take The Doors on their own terms, horrible poetry and all. Manzarek always seemed to me to be musicianly, and his work as a producer-- particularly on X's Los Angeles (an amazingly great record) demonstrated that he was the real deal.

I just got my review copy of Civil Litigation in New York, Sixth Edition, by Oscar G. Chase and Robert A. Barker. It is a casebook, not a treatise-- it is designed and intended to be an instructional tool, so before I make any other comment I feel that I should say this: the book on my desk retails for $194 bucks. A looseleaf edition is available for $155; and an e-book is available for $116. Lexis says it plans on keeping it on the shelves for "several years", which means that there is a reasonable chance that students who buy it will be able to sell it and get maybe half their money back for the same period. I realize that there is a limited market for a book like this, and I understand that Professors Chase and Barker worked hard on it, and that they deserve to be paid-- but $200 bucks-- or $116 bucks-- is too much. Way, way too much. I could stand in front of a class and simply teach from this thing as though it were a hymnal-- it would make teaching New York Practice, or Civil Procedure as simple as ringing a bell-- but I really cannot justify assigning a $200 textbook.

It is a damn fine textbook though.

“Tony,” says Reepicheep, with a gleam of challenge in his eyes, “It is my belief that the capacity of a mouse is no less than the capacity of a man. Will you match me, drink for drink?”
I salute him with my shot glass. Soon I’m in a disgraceful state, seeing double, barely able to get the glass to my lips. As my face slowly descends toward the table, I see Reepicheep reflected in a pool of brandy – a touch glassy-eyed but upright, small and triumphant. [No Reservations: Narnia]

C.S. Lewis the way I'd like him: no Jesus-Lions, more pavenders and eel pie.

The Hon. Ruth Bader Ginzburg is plain wrong about Roe v. Wade. I do not often disagree with her, but when she says that the Supreme Court should have let matters take their own course, and that by accepting the case the Court, "seemed to have stopped the momentum that was on the side of change," she is not only wrong, she is horribly wrong at the worst possible time. Because here's the thing: sure, the arc of history is long, and sure it bends towards justice, and yeah, no doubt given an infinite number of state legislators and an infinite number of typewriters we'll get around to guaranteeing people the rights that they ought to have-- but in the meanwhile there are people who would like those rights now. And they should have them, now.

At one time I was a Roches completist-- I guess up through the time that they started releasing sides as solo artists. I still have it all-- I held onto that Willie Nile album precisely because they sang back-up on one of the tracks, and I even ordered a signed copy of Seductive Reasoning when that was re-issued a year or so ago. It makes me sad that they weren't able to make a living at it, because they are intelligent people who made music that I liked a great deal. The best of it seems to have Robert Fripp's fingerprints on it. As far as songwriting goes I'd have to say that at some point they stopped being melancholy and became flat-out depressed. Another World seems to be mostly about career disappointment, and although I'd rank Speak as one of their best recordings, that's what the title song is about too. It is a grim subject. At least with failed romance there is always the prospect of a new relationship. When your label says that it is cutting you lose there's not a lot more to say, and although Suzy continued to contribute songs about being happy-go-lucky for a while sides like A Dove or Can We Go Home Now, for all their charms, lack the buoyant optimism of their best work. I don't think you can say that they weren't marketed properly-- they really did just have a limited audience

Reading about the Guatemalan genocide what horrifies me the most is that I was so oblivious to it as it was happening.

To Gretchen Parlato at Bruce Eaton's Hunt Real Estate Art of Jazz-- the final show of the season. Parlato is a pro, as versed in showmanship as she is in music. Her excellent trio* took the stage and vamped a bit before she made her entrance, and she then proceeded to move smoothly from one song to the next with scarcely a breath. Her sound incorporates some unusual hand percussion; her voice was breathy and light. In a way I felt as though her music would be a fine accompaniment to a Carlos Castaneda adventure, with lyrics using natural imagery which reminded me that there is an ancient quality to the New World that we seldom see or hear about, except in the way we see things that used to be where we are looking. It isn't a memory, unless perhaps in some vague, Jungian sense. It's just an.... evocation. With all that, there was also a hint of Laural Canyon informing what she was doing, just a bit, like the wintergreen taste in a glass of root beer.

She played a generous set, then left as she'd arrived, leaving the band on stage playing her off, before they returned for an encore. It was the kind of show that left me a bit light-headed, a nice sensation on a warm spring night.

*Keyboard player Jason Lindner, drummer Mark Guiliana and guitarist/bassist/singer Alan Hampton

To Ascenseur Pour L'Echafaud at Hallwalls last night. I've wanted to see it for years, Louis Malle's first feature. (He made a documentary with Jacques Cousteau before that.) My first awareness of the movie came with Miles Davis' soundtrack, an essential recording that captured Miles as he was transitioning from post-Bop into the modal "Kind of Blue". The story about the soundtrack is that Malle showed Miles a rough cut, Miles worked out some ideas for themes, showed them to the band he was working with, and then they improvised while the scenes were being screened in front of them. It is an unusual way to work, but because everyone in the room was a genius it works really well. The other cats on the date-- with the exception of Kenny Clarke, have always been obscure figures to me: Barney Wilen – tenor saxophone,René Urtreger – piano, and Pierre Michelot – bass. They deserve greater notoriety. This was the European quintet that Miles toured with back then, and they played together quite a bit, although their time together does not seem to be much documented. All of them worked with the best, and it is plain to me that Euro-jazz is going to have to be a subject for further research on my part.

Ed Cardoni, Hallwalls' director, is curating this series and deserves props for doing a fine job of it. I'd love to teach this movie-- Malle does so many subtle things so beautifully. It's a taut little thriller without a wasted frame in it.

I like it when schools do things like this:

The 48 Good Films program is a companion to the 48 Good Books Project. Students are encouraged to read a book from the list and see a movie from the list each month during their undergraduate career.

"Faculty submitted film titles that are important to them and embody the mission and spirit of the five Undergraduate Academies: Civic Engagement, Entrepreneurship, Global Perspectives, Research Exploration and Sustainability."

Programs like this develop a feeling of community, and especially at a place like UB any step in that direction is valuable.