Thursday, July 31, 2014
Anybody who was paying attention at the time knew that the national media-- and particularly the New York Times-- was in the tank with the Bush Administration. The fact that Jill Abramson is now admitting it
should be enough to keep something like that from happening again, but it won't be.
Abramson was the Times’ Washington bureau chief at the time. The
debris in lower Manhattan was still settling when Ari Fleischer, Bush’s
press secretary, arranged a conference call that included “every leading
editor in Washington.”
Abramson dilates on this key moment:
purpose of his call was to make an agreement with the press—this was
just days after 9/11—that we not publish any stories that would go into
details about the sources and methods of our intelligence programs. I
have to say, that in the wake of 9/11, all of us readily agreed to
Plenty of people who one would have hoped would have thought better of a massive scheme to defraud the country-- the world, really-- into as misbegotten a series of wars as have occurred in history. Colin Powell. Most of the Senate, including the New York delegation. It is not difficult to understand why-- but it is, for me, impossible to excuse or forgive. When you are a journalist your sole obligation is to the truth. When you are elected, or appointed, to serve you take an oath to uphold the Constitution. The one I took when I was admitted to this glamor profession went like this
I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York,
and that I will faithfully discharge the duties of the office of
[attorney and counselor-at-law], according to the best of my ability.
The oath that members of Congress takes is a little more elaborate:
I do solemnly swear (or affirm) that I will support and defend the
Constitution of the United States against all enemies, foreign and
domestic; that I will bear true faith and allegiance to the same; that I
take this obligation freely, without any mental reservation or purpose
of evasion; and that I will well and faithfully discharge the duties of
the office on which I am about to enter: So help me God.
Journalists, of course, take no oaths. Finley Peter Dunn said that newspapers should "comfort[s] th' afflicted, [and]afflict[s] th' comfortable",
and Mother Jones said that was likewise her task in life, but if Jill Abramson ever felt that way it was a pie crust promise, easily made and easily broken. And what does that leave us with? On the evidence neither the government nor the press is going to tell us the truth-- at least, not all the time-- and where does that mean about democratic self government? What the New York Times did was to become a mouthpiece for an Administration that was already suspect, abandoning any pretext of objectivity in the process. I guess what this means is that one should read the Times for the box scores and the recipes. The excuse that Abramson offers is basically the same excuse President Obama just offered when discussing John Brennan and the country's torture policy: these were mistakes made by people out of patriotism. Here's the thing: it is a fine thing to love and defend one's country,
but there are more important values. Indeed, in the context of this
discussion I would put it to you that loving and defending one's country
must necessarily mean valuing the principles and values upon which the
country was founded-- and still purports to observe has to take
presidence over concealing the actions of the government. When the press
operates to obscure the actions of the government it is complicit in
whatever crimes the government is committing in our name. When I hear
"patriotism" cited as an excuse or a justification for anything I want
to spit between my fingers.
Tuesday, July 29, 2014
Excellent Christgau interview
, and excellent news: he is publishing a memoir
Monday, July 28, 2014
It appears that the narrative about the Republican Party's prospective Presidential field is going to be what a bunch of intellectuals they all are. As a rule, by the time the New York Times gets a hold of an idea it is already established knowledge, so the July 2 story about the new crop of Republican wonks was right on schedule.
Slate chimes in today with a piece about what deep thinkers Rand Paul, Rick Santorum, and Bobby Jindal all are, and any story about Ted Cruz requires mention of his Harvard credential
. All that's missing is a comeback from Newt Gingrich.
What goes unsaid in all of this is that even if you accept the notion that these new Republicans are brimming with fresh new ideas, all of them are lousy ideas, and actually most of them have been tried and found wanting.
It is no coincidence that Republican Presidents leave office with the economy a smoking ruin. Kindly old Bob Dole snarling about "Democrat Wars" doesn't change the fact that it is Republican bellicosity which marks US foreign policy. The real bottom line is unchanged: as Louise Slaughter told us in our interview with her nine years ago
, Republicans are bad at governing because they don't believe in government.
Friday, July 25, 2014
Fridays are law days
(sometimes) here at Outside Counsel. Today let's consider Cappiello v. IDC Publications
. Professor Siegel featured it about a year ago, but I just now came across it, and it is the sort of nifty thing that Erie v. Tompkins
In New York interest on post-verdict judgments is set by statute at 9%. In federal court the judgment rate is computed according to a formula that adopts Treasury yields. 9% is crazy, and a lot of appeals that might get taken don't get taken because 9% will kill you. So what's the rate to apply when a New York action is removed to federal court on the grounds of diversity? Well, that comes down to the classic Erie
question: is post-verdict interest a substantive issue, or merely a procedural question? Pre-judgment interest is part of the substantive law of the state, so New York law applies, but post-judgment interest is procedural. In Cappiello
the court reckoned the applicable rate at 0.25%. That's a swing that stings, cats and kittens. There is a work-around, maybe: Seigel says the federal judgment can be docketed with a New York State county clerk under CPLR 5018(b), but the Cappiello
decision says nay. Another way to address it-- in commercial cases-- would be to have the contract speak to the question directly. At what point does the failure to include such a provision become a source of concern for the drafting lawyer? Isn't that an ugly question?
I'm not sure to what extent the Cappiello
rule would really color my conversation with a litigation client about whether or not to remove a case. It is, however, one more item on one side of the ledger.
Thursday, July 24, 2014
Good Charlie Parker story
, and a cool story about documenting it.
Tuesday, July 22, 2014
When I do radio I need to remember to speak from lower in my chest. Still, this came out pretty okay I think.
Sunday, July 20, 2014
Being on the radio is much cooler than just driving somewhere and shouting at the radio. Thanks to Dave Debo and WBEN
for the opportunity to put on the cans and take calls on the air.
Friday, July 18, 2014
Fans of nasal-y downstate accents might want to tune in to WBEN this Sunday morning at ten, when
I will be interviewed about judicial elections. Because writing a letter to the editor of the Buffalo News wasn't already a stupid enough thing to do.
Wednesday, July 16, 2014
The Buffalo News has an unstated policy regarding letters to the editor: it limits cranks to one published letter every three months. That means that you have to pick your spots. This quarter my spot is on a topic familiar to readers of Outside Counsel: judicial selection.
A couple of follow-up points. First, I didn't write the headline, which is idiotic. Elections are partisan, and to the extent that they involve campaigning at all of course they are "manipulated". Judicial elections are not supposed to involve campaigning in the traditional sense of the word, although just the fact that candidates are party endorsed tells you everything you need to know about that.
Second, Outside Counsel does not typically engage in endorsing or recommending judicial candidates in this space. I have been known to recommend a candidate in private, but I'm a practicing lawyer who appears before these judges, and I believe it is, at a minimum, unseemly to engage in a practice which might appear to be currying favor with the court. This is, in fact, one of our chief objections to the entire concept of judicial elections
. That said, the two sitting Justices this go-round really are good at the job, and I plan on voting for them.
Wednesday, July 09, 2014
People who enjoy Outside Counsel and think that others might too are encouraged to visit the ABA's survey and mention us
Tuesday, July 08, 2014
Pink Floyd is really just English guys playing blues licks real slow, plus studio atmospherics, right? I mean, there are angst-y lyrics too, but nobody cares about the words to Pink Floyd songs unless they are really baked, do they? Am I missing something? Did the light show add that much?
Monday, July 07, 2014
Among the things that I love about World Cup is that it is possible (actually, kind of essential) to enjoy and support the teams from nations apart from one's own. It's nice that the US is respectable, and I enjoyed the hell out of the USMNT this year, but expecting them to go past where they got is unrealistic, just as it is for the teams from pretty nearly every other country. World Cup play is just enjoyable, no matter who is on the pitch. For example, just about every European I know supports Brazil in addition to their own side, because the Green and Gold play so beautifully. Those that don't often favor Argentina, and why not? There is always a spirited discussion to be had about who the best player in the world is; this year the last one in the tournament is wearing blue and white. Even though the Germans are Germans I love the way the Germans play, but the side I have been hoping to see go all the way is the Netherlands.
The crafty Dutch have never won it all-- in fact, in common with the Buffalo Bills they hold the record for losing the most finals. Wouldn't a Final matching Brazil and the Netherlands be nifty?
Friday, July 04, 2014
It is discouraging to think about what America is at the moment. I try hard to avoid nostalgia, and I believe to my core that the idea that there was ever a "better time" is a fiction. Me 'n' St. Augustine believe that striving for perfection is as close as we can ever get to achieving it, and I like to think that most of us are trying, even if the evidence suggests otherwise. A more
perfect Union is what was set out to accomplish, and that seems like an Augustinian sort of goal, especially for a nation with its roots in slavery and genocide. You can point to all the cathedrals you like, I think the First Amendment is a greater accomplishment. This week, in the wake of a Supreme Court decision that declared that some people's religious beliefs should receive favored treatment over others I find myself, once again, endeavoring to contemplate why I should feel patriotic. It is mostly true that the United States was conceived in Liberty, even if our history makes it clear that we had and have a long road in front of us. For a long time I thought that the mere fact that ours was the first nation created out of an idealistic set of principals was sufficient to distinguish us, but I don't think that way any more: I want to see better execution of the high sounding concepts laid out in Philly back in the day before I'll accept that the US deserves to be distinguished from anywhere.
But that is a bleak way to set out onto Independence Day, so I will consider instead the Americans that have given us reasons to be proud of our country. I take as my cue Sarah Vowell's remarks in The Partly Cloudy Patriot
I said that I had recently flown over Memphis, Tennessee. I said that the idea of Memphis, Tennessee, not to mention looking down at it, made me go all soft. Because I looked down at Memphis, Tennessee and thought of all my heroes who had walked its streets. I thought of Sun Records, of the producer Sam Phillips. Sam Phillips, who once described the sort of person he recorded as "a person who had dreamed, and dreamed and dreamed." A person like Elvis Presley, his funny bass player, Bill Black, his guitarist, Scotty Moore.... Jerry Lee Lewis, Carl Perkins. Hello, I'm Johnny Cash.
And, of course, when we think about Memphis, Tennessee we also have to think of the brave men who were employed as sanitation workers and went on strike in 1968. And about Martin Luther King, Jr.. And then I start to think about the other Americans who have stood up: the March on the Pentagon. ACT UP. The Occupy movement. And then I circle back, and think about Chuck Berry, who invented an art form that celebrated the America he wasn't even allowed to take part in fully. I think about Gloria Steinem, and Justice Holmes. George Clinton. Mookie Wilson-- thinking about Mookie Wilson always makes me happy. I see him outrunning that play at first in my mind's eye and I am reminded that you always work as hard as you can until you can't work any more.
Mookie Wilson was an Augustinian ballplayer, and therefor an Augustinian American, like me.
I have a longer list, but thinking about any of these people is what it takes to get me through the 4th. I'm happier than ever this year to have them to think about.
Wednesday, July 02, 2014
. I'm as guilty as anyone.
Delaney and Bonnie. Frye-booted, syphilitic-looking
married couple of early-’70s vintage (last name: Bramlett) who pioneered
the “heavy friends” approach to a rock career, recording several albums
of amiable but undistinguished blues chooglin’ in the company of such
esteemed helpers as Eric Clapton, Duane Allman, George Harrison, and
Dave Mason. (Their best-known album is called Delaney & Bonnie & Friends on Tour with Eric Clapton.)
Though their time in the spotlight was short-lived, Bonnie Bramlett
resurfaced in the late ’70s when she clocked Elvis Costello in a bar
Tuesday, July 01, 2014
I thought I'd take a look at the Hobby Lobby decision. Big mistake.
In holding that the HHS mandate is unlawful, we reject
HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organizetheir businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of
RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish torun their businesses as for-profit corporations in the manner required by their religious beliefs.
I distrust statements like "perfectly clear".
The owners of the businesses have religious objections to
abortion, and according to their religious beliefs the four
contraceptive methods at issue are abortifacients. If the
owners comply with the HHS mandate, they believe they
will be facilitating abortions, and if they do not comply,
they will pay a very heavy price—as much as $1.3 million
per day, or about $475 million per year, in the case of one
of the companies. If these consequences do not amount to
a substantial burden, it is hard to see what would.
Two points. First, the matter of what sort of factual showing has to be made here. The science that says the contraceptive methods at issue are not, in fact, abotrifacients, but apparently that doesn't matter because the superstitious beliefs of the plaintiffs trump science. I think that is bizarre. A second point: how can Alito say that something is or is not a substantial burden in a vacuum? Sure, it sounds like a ton of dough, but compared to what? Shouldn't this be measured against some objective number? Annual gross or something?
I can't bring myself to read 90 pages of this stuff. It is outcome determinative jurisprudence, and it makes me sad. Look, religious freedom means that the government shouldn't prevent you from believing what you want-- it shouldn't mean that anyone has a right to place their beliefs before anyone else's. On top of that, business entities are not the same as the people who own the business-- business entities are specifically created to be different identities. The idea of a corporation is that it allows for the continuous accumulation of wealth in perpetuity, and that it shields the shareholders who benefit from that accumulation from personal liability.
Happy Canada Day, everyone. There are days when I think it is the last sane place in the world.