Outside Counsel

This is interesting for several reasons. Some cat got up in Supreme Court yesterday and said, "I rise on behalf of the vast majority of the American people who believe that money is not speech and corporations are not people and our democracy should not be for sale to the highest bidder. Overturn Citizens United. Keep the cap in McCutcheon. The people demand democracy." So, although I do not believe that it is good form to interrupt other peoples' oral arguments, I must concede that the fellow has a point. What is really important here is that this video of the Supreme Court. There is no reason that this should be the only video of the Court. Proceedings held in secret are suspect proceedings, and proceedings that cannot be recorded, in 2014, are not public in any meaningful sense.

So the other day I was driving over to pick A up after work when I see, from the corner of my eye, a car pulling out of a lot to my left coming right at me. Neither of us were moving fast-- I was coming up on the light at Chippewa-- and I could see that the driver of the other car was plain old not looking at me. Her head was turned all the way to her left until the crunch, which happened as I tried to swerve away from contact. We both pulled over. It's about 10° out, and neither car seems to have been more than scuffed. She says, "I'm so sorry-- I wasn't looking," so I have the admission I need. She said, "I didn't mean to hit you," so I said, "That's a relief; it would be worse if I thought you were hunting me down with your car." She said, "So now what do we do?" and I proposed exchanging cards rather than waiting around for the Buffalo cops to meander over. We double check our cars-- no damage- then, in the time honored card swap move we each hand over to the other. This is usually a fraught moment. People see that I'm a lawyer and they get all flinchy, but this time, as I accept hers I see that it has a gold star on it, and I read, "United States Secret Service". My tortfeasor, it turns out, is a Criminal Research Specialist for the Federal heat. "Great," I said. "We're each other's worst nightmares." She laughed, and we moved on. The following day I called her to confirm that the Swedish Batmobile was unharmed. She expressed relief, then added, "You're a kind of an interesting person." "What do you mean?" I said. "Well, you do this kind of law," she said, "And you teach, and write a lot..." So there you have it. She Googled me, and did a pretty thorough job of it. Hi Deborah!

Chris, Jared and my Academy Awards Screenplay, Director, and Picture picks for Spree.

Oscar Picks start here, with the Acting Awards.

Last week's NYTimes Magazine-- the one with Wendy Davis on the cover-- has been staring at me all weekend. I kept meaning to get to how pissed off the cover story made me, but I didn't get around to it so I will just put it out there: No way any male politician gets written about this way.

Jared Mobarak, Chris Schobert and I have been doing Oscar picks for Buffalo Spree since 2010. Now Jared has put them all up on his website, and they are mighty good reading if you ask me. If you are wondering what you feel like watching one of these evenings, have a look at what we've had to say about some pretty good movies: 2010, 2011, 2012, 2013. And check out the Spree blog for this year's picks!

The headlines and the stories are all more or less the same: New Jersey has run out of road salt, and a 90-year-old maritime law prevents it from acquiring more. The esoteric law they are referring to is the Jones Act, kind of the foundation of US maritime law. The thing that is holding up the salt is a basic part of international law called cabotage. In a nutshell, foreign flaged ships (and airplanes) can bring stuff to a country, and they can take stuff out of a country, but they can't make deliveries within that country. This is why I can't book a flight to Florida out of JFK on Air Canada. There are a lot of reasons for this rule, and most of them are good ones. My point is, why are people pretending that this is somehow obscure? Sorry about your salt, New Jersey, but don't be thinking that you'll be rewriting hundreds of years of accepted practice because it's snowing.

I'm kind of hoping that Finland wins the hockey gold.

It's probably a story best told through pictures, but last week A and I spent a night at the

Shown here, one of the rooms. They build the thing using big molds, like concrete forms, so it's solid ice all the way through. The beds are slabs of ice, with insulating foam pads, and the guests sleep in sleeping bags-- North Face, a sponsor, provides the sleeping bags, and will be outfitting my Antarctic expedition.There's a disco, and a bar, but it's not a big drinking scene-- or it wasn't for me, in any event, because the bathrooms are in another building, and once you are in bed Admiral Byrd couldn't order me out. We went off campus for dinner-- the dining options on premises were limited, and returned to the bar to find that the property had set up tables with blocks of ice and small hand tools for guests who wanted to have a go at ice carving. Over at one a pair of Canadian sisters (there seemed to be a lot of sisters, and women who'd come with friends because their husbands wouldn't come with) diligently hacking away to make a bigger ice glass for cocktails than the small ice glasses which the bar provided, one of the most Canadian things I've ever seen.Following cocktails with the cuccoo Canadian sisters we changed into hot tub kit and spa'd and saunaed awhile to get our body temperatures up, and thus to bed. We woke up to a dazzling morning, breakfasted and went snowshoeing, a first for me. It is basically pokier cross-country skiiing, with less falling down, which was fine with me. There was also tube sliding. A's "whoo", captures that nicely.
I'd go back. 

The 50 Most NYC Albums Ever. Not a bad list.

Using the parable of the Prodigal Son as his jumping off point David Brooks, Moron Esq. tells us:

We live in a society in which moral standards are already fuzzy, in which people are already encouraged to do their own thing. We live in a society with advanced social decay — with teens dropping out of high school, financiers plundering companies and kids being raised without fathers. The father’s example in the parable reinforces loose self-indulgence at a time when we need more rule-following, more social discipline and more accountability, not less.

Of course, David Brooks' head is stuffed with straw, but this whole erosion of moral values thing has
really got my goat. Where is the evidence for the proposition that morality is eroding in American culture? Does Brooks seriously believe that there is more corporate plundering in 21st Century America than there was at the start of the 20th Century? I mean, sure income disparity is probably one of the top two or three social issues we are facing right now (climate change has to be on the list too), but that can't be what Brooks means, can it?

Brooks continues:

We live in a divided society in which many of us in the middle- and upper-middle classes are like the older brother and many of the people who drop out of school, commit crimes and abandon their children are like the younger brother. In many cases, we have a governing class of elder brothers legislating programs on behalf of the younger brothers. The great danger in this situation is that we in the elder brother class will end up self-righteously lecturing the poor: “You need to be more like us: graduate from school, practice a little sexual discipline, work harder.”

Ah. There it is. Did you catch it? Sex, that old bugaboo. Some people, presumably the Poors, are having more sex than our Mr. Brooks approves of (which probably equals more sex than David Brooks has, which is probably not much. Also, guessing here, sex that is different from the sort of sex that David Brooks likes to think about having.)

This kind of thing is exhausting. Honest to goodness, where the hell does David Brooks get off telling me that American moral standards are fuzzy?

I process these sorts of things slowly. A wasn't able to make it to the funeral, so I had the drive down and the drive back to turn it all over in my mind. Lucky me, the drive down was elongated by roughly two hours by reason of rush-hour traffic when I hit the GW Bridge. The drive back was a couple of hours longer than it might have been by virtue of the snow that started up around Scranton. Nothing really adverse either time-- just a little extra time with my thoughts.
Frank and Marianne aren't in this photo, but we stayed with them, in the house on Potters Boulevard across the street from the Brightwaters Park, around the corner from the house where my grandparents lived. In the background here is the bathhouse at Robert Moses State Park, Field 2. After the funeral, after the luncheon, a visit to the beach seemed like the right thing to do. On the way in the evening before I'd grown exasperated by the traffic on the Southern State, so I'd cut over the Ocean Parkway, and was rewarded with the winter smell of the ocean. The wake was directly across the street from Marianne and my high school; the funeral the next morning was at St. Peter's By-The-Sea. As familiar was everything else this weekend was, that was a space I'd never seen. As if to compensate for that lack of familiarity it turns out that the Episcopalians out-do Catholics these days. The service was elaborate and the usual annoyance I experience in church didn't really surface until the shaman dragged C.S. Lewis into it. Even that wasn't so bad. Eddie had suffered a lot, for a long time, and it was good to see that the people in the crowded church all seemed to be pleased about remembering the good times with him. Over the course of the weekend Frank, Scott, Mark and I had time to talk about the unusual times we'd had in law school-- and there were moments when it felt a bit like those times hadn't ended, only deepened. Showing up is key. From the class of '82 (and '81) there we were, along with another friend I reckoned we'd see.
It was the sound of it all that made it seem so surreal: that Long Island accent, so different from Queens, or Brooklyn-- so different from anything else, really. It was like hearing a long-forgotten foreign language. And, of course, through all of it the little worm of a thought: what if I'd have stayed here? Of course that wouldn't have happened-- some twist in my DNA has led me to consistently wonder  where my city is, even though it appears that it turned out to be Buffalo. 's-Hertogenbosch? Tokyo? There was no place for me in Bay Shore, even though it was transporting to have a late supper at the Peter Pan Diner; even though they are rebuilding the John Thomas Inn. But there we all were, to support Joyce and her daughters, the survivors, the ones that show up.

I have issues with the Winter Olympics. I don't think that the Olympics should have team sports, for example, because I don't think the Olympics should be nationalistic. On the other hand, Olympic hockey is pretty great, so I have learned to live with that bit of cognitive dissonance. Figure skating does nothing for me, but it is probably the most popular Winter Games event, so it is the event that is the most televised. I'm okay with speed events: skiing, speed skating. I'd like to try bobsledding, and I'd love to try luge. I'm intrigued by these games mostly because of the atmospherics. Putin is a genuinely bad man, Sochi was the site of a genocide, and the construction of the Olympic Village has apparently been a free-for-all for every crook and every grifter in Russia. So yeah, I'll be watching.

One of the things that distinguished my law school class was that there were quite a few
"non-traditional" students. I have the sense that lately law school has become something that people do when their Master's degrees lead them down cul-de-sacs, but that was rare at the time, and that isn't just what I mean: we had a pretty sizable population of people who'd left careers and jobs, and one couple who were tenured faculty at UB who thought law school would be a fun thing to do for their Sabbatical year. We were just past the time when people stayed in school more or less to beat the draft, so we had some of those hold-overs. We had, in other words, a class full of people who were older than was typical, and one of those students was Ed Flint.Ed had kicked around some-- he was proud of having been a cab driver-- and had gotten his BA, from Queens College-- more or less going part time-- in his mid 30's. He was, I think, the first classmate I met. I recall that he was playing shortstop at the law school orientation picnic, and made a great play on a little Texas Leaguer I'd smacked, and I recall also that at some point during that afternoon we talked about how with our law degrees anything might be possible. That was typical of him-- he was a hard worker, and an optimist, and he was also an amiable guy who enjoyed a blue sky conversation. The world really was opening up it's possibilities for him. He was Editor in Chief of the law review, and went on to practice for a time in BigLaw. He moved around a bit, and ended up practicing with Silverman Acampora. He and his wife, Joyce, lived about two blocks from my boyhood home. A couple of years ago we learned that he'd been diagnosed with ALS. He came to our reunion last summer, in a wheelchair. He never missed a reunion. He was in good spirits, and was facing the inevitable with strength and his characteristic optimism. As far as I have been able to learn he was practicing right up to the end, which would surprise no-one who knew him. I don't think anything was ever easy for him, but I cannot recall ever hearing him complain, about anything.

Llewen Davis' signature line, "If it was never new and it never gets old, it's a folk song," has been banging around my head since the  clock radio told me Pete Seeger died, in part, at least, because Seeger gives us a bit of a metric for when a song becomes a folk song. Consider "Wimoweh":

[An]unacknowledged rewrite of the song "Mbube", written and recorded by South African musician and composer, Solomon Linda, in 1939. "Mbube" had been a major local hit for Linda and his band, The Evening Birds, reputedly selling 100,000 copies there, but its success at the time was entirely confined to South Africa. Some years later, a copy of Linda's recording reached the American musicologist Alan Lomax; he passed it on to his friend Pete Seeger, who fell in love with it, and it was Seeger who was mainly responsible for popularising the song in the West.
Seeger recorded a version of the song with his noted folk group The Weavers in 1952, retitling it "Wimoweh" (an inaccurate transliteration of the song's original Zulu refrain, "uyimbube"). The Weavers scored a US Top 20 hit with their studio version, and had further success with a live version of the song included on their influential 1957 live album, recorded at Carnegie Hall, which led to it being covered by The Kingston Trio in 1959.
The Weavers' Carnegie Hall version of "Wimoweh" became a favourite song of The Tokens—they used it as their audition piece when they were offered a contract with RCA Records—and this led to them recording it as their first RCA single. However, it was at this point that the lyrics were re-written by the band's producers—who took full credit for the song—and it would be several decades more before the full story of the appropriation of Solomon Linda's work became widely known. Sadly, by then Linda had long since died in poverty.

On the other hand, as Christgau notes, "[S]uch standards as "Good Night Irene," "Wimoweh," "Michael, Row the Boat Ashore," and the magnificent "Bells of Rhymney" are as much a part of the American songbook as "White Christmas" and "Summertime"--which latter, as it happens, Seeger anointed at Bowdoin in 1960, one of the thousands of solo shows he played during his 17-year blacklist." I think that's about right-- all folk music amounts to the music that remains popular over time. That may actually be the measure of authenticity. By that standard, "Seven Nation Army", for example, is on its way. "You'll Never Walk Alone" is already there. And even though the Weavers bowdlerized "Good Night Irene" it's a pretty sure bet they paid Hudie Ledbetter his royalties. And even though Pete held the copyright for "We Shall Overcome" by virtue of changing "Will" to "Shall", the royalties are donated to the We Shall Overcome Fund. Administered by the Highlander Research and Education Center,which supports cultural and educational endeavors in African American communities in the South.