Outside Counsel

I've been saying this for years. You want tort reform? Devise a more equitable social welfare system. You want medical malpractice reform? Socialize it. Easy-peasy. I suppose another alternative is just to throw accident victims out on the street: no doubt Orin Hatch and his ilk would have no qualms about stepping over legless beggars in the gutter.

You know what would be nice? I'd like it if the US changed its currency to honor persons other than Presidents. Of course, not all of our dough has Presidents on it-- Benjamin Franklin's there, and I'd keep him, so not every rap song would have to be updated. Alexander Hamilton? Yeah, Alex can stay. Salmon P. Chase, on the other hand, seems undeserving of the honor. I'd propose American Nobel Peace Prize winners, but that would mean swapping out Jackson-- the perpetrator of an American genocide-- with Henry Kissinger, and that would be too raw. I don't think I would ever be able to stop vomiting. The goal, of course, would be to represent the best of what the United States has given the world, so, for example, Louis Armstrong on the $5 dollar bill, Ella Fitzgerald on the $10, maybe Martin Luther King, Jr. on the $20. Keep Washington on the single, and Jefferson on the deuce-- I like $2 bills because they make me think about playing the ponies, and unless we are talking about putting, say, Miles Davis on the $2 I see no reason to change. Promote Lincoln to the $50, or maybe put Julia Child on it-- we should have more women on our money, so maybe Abigail "Remember the ladies" Adams would be a better pick, or Clara Barton. (Given my relationship with money, maybe a special Amelia Earhart series would be good.)

UPDATE: Hey, a zeitgeist-y moment: Women on 20s. Shirley Chisholm, whose final resting place is around the corner from my house, would be a fine candidate, and how could I have forgotten Eleanor Roosevelt-- but I think I am still Team Clara Barton.

Haruki Murakami is a Red Sox fan? This is disappointing.

I am sickened-- but not surprised-- that the mayor of an American city which operates a secret detention center is unashamedly running for reelection. We've normalized torture, and now it is come home and become part of who we are. We reelected a President who was an avowed torturer-- why should a mayor balk at this fundamental violation of what the idea of America is supposed to stand for?

Rudy Guiliani-- a former mayor who, lest we forget, is likewise associated with torture-- has been seen saying aloud that the President is some sort of crypto-foreigner because he is insufficiently enamored of American exceptionalism. It shouldn't have to be said, but I'll say it: Patriotism is an empty value if it is not an emotion brought about by critical self-evaluation, and if that evaluation establishes that the nation under scrutiny is failing to exist pursuant to the values which purportedly distinguish it from others in the community of nations than it falls to us each to do something about it. President Obama is at least intellectually honest about this, I think. His long and continuing association with Rahm Emanuel gives me hesitation, but hesitation is as far as I will go until further information emerges.

Bob Dylan cartoons, Part one and Part two. Related, sort of, "Leopard Skin Pillbox Hat" was on the radio when I started the car this morning.

In my experience the admissibility of custom and practice evidence is poorly understood, and I expect that this is because the rule is incoherent-- or at least generally expressed badly.

in Halloran v. Virginia Chemicals,¹ a products liability case in which the defense sought to introduce evidence of plaintiff's "usage and practice" to use an immersion coil to heat the water into which the freon (the product) was placed, causing the explosion seriously injuring the plaintiff.
On cross-examination by defense counsel, the plaintiff, an automobile mechanic, denied ever doing this. The defense offered a witness prepared to testify that he not only saw plaintiff using the immersion coil to heat the freon on previous occasions, but also warned plaintiff of the danger as well. Plaintiff's objection to this proposed testimony was sustained by the trial judge relying on the well-settled rule that extrinsic evidence cannot be used to impeach a witness on collateral matters. The Second Department affirmed, and a question of law was certified for review.
The Court of Appeals, in reversing judgment for plaintiff and granting a new trial, held for the first time that habit evidence of carelessness or carefulness may be admissible under limited circumstances to prove the actor was negligent or not negligent on the occasion in question. In this case, if the auto mechanic had habitually or regularly used the immersion coil to heat water into which the refrigerant container was placed, evidence of that habit was admissible with a proper foundation to prove that plaintiff followed such a procedure on the day of the explosion, and that such evidence in this case was not collateral since it would explain the explosion, and therefore, did not violate the rule against using extrinsic evidence solely to impeach credibility on a collateral issue.
The court reasoned:

Evidence of habit or regular usage, if properly defined and therefore circumscribed, involves more than unpatterned occasional conduct, that is, conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances; it involves a repetitive pattern of conduct and therefore predictable and predictive conduct. On this view, the excluded evidence was offered to show a particular method of executing a task followed by the mechanic, who, on his own testimony, had serviced "hundreds" of air-conditioning units and used "thousands" of cans of the refrigerant. If on remittal the evidence tends to show that the mechanic used an immersion coil a sufficient number of times to warrant a finding of habit, or regular usage, it would be admissible to aid the jury on its inquiry whether he did so on the occasion in question.

If that makes sense to you, I'll give you a doughnut. In the linked to article Alan W. Clark concludes:

[H]abit evidence, a form of circumstantial evidence, may be admissible in limited malpractice cases by proof of custom and practice to prove carelessness or carefulness of an act or occurrence when there is no recollection of the facts. Such evidence may be used to support or deny summary judgment to a party. However, circumstantial evidence is no substitute for medical expert opinion to prove the relevant standard of care and whether good and accepted medical practice was complied with or violated by the defendant(s).
Moreover, courts must consider whether such habit or circumstantial evidence belongs to the creative imagination of the party or attorney and is being used in such a way to unjustifiably excuse an act or omission of carelessness or negligence where the party has no recollection of the events. One can only imagine the unlimited circumstances where meritorious claims or defenses may be defeated by abuse of circumstantial evidence. Otherwise, we may one day be faced with evidence of a party's custom and practice to do the right thing and never be wrong, despite the facts of the case.

I always thought Sin Eaters were an Irish thing-- it seems very Irish-- but apparently not. Nevertheless, it is a custom that equates rather well with our glamor profession.

Herald Price Fahringer has died. He was a big deal alumnus of my law school, famous for representing Larry Flynt, Al Goldstein, and, of course, poor old Jean Harris, among others.

Robert Christgau's memoir c'est arrivé!

What I love most about the lyrics of Marquee Moon is their evocation of that youthful moment when you're this close to figuring everything out, voicing in very few words a multivalence worthy of that adventure's complexity and confusion — beautifully, profoundly, naively, contradictorily, romantically, kinetically, jokily, cockily, fearfully, drunkenly, goofily, impudently — so nervous and excited you could fly, or is it faint? And with the single line "Broadway looked so medieval" added to what we know about its East Village provenance, it situates this philosophical action in the downtown night.

Yeah, baby.

The Yankees are retiring the numbers of Andy Pettitte, Jorge Posada, and Bernie Williams this season. That's nice and all, but they are going to run out of double digits soon. (The single digits are already nearly done. Yogi Berra and Bill Dickey share 8, and Dale Berra's 2 is overdue for retirement.) Will they go to three digits? Alpha-numeric combinations? ("Now bating, number 3(a)....") There's a row of symbols along the top of the keyboard-- do you suppose Reggie Jackson would come out or retirement to claim "!"?

Just a couple of quick thoughts about SNL on the occasion of the 40th anniversary show. First, catch phrases aren't comedy, but SNL was much more than catch phrases. For that reason I thought the clip montages were disappointing. It would have been better, I think, if they had, instead, done more revisiting, as they did with the Jeopardy! sketch, and Akroyd's Bass-O-Matic bit. Second, I'd have been okay with a lot more music. As someone who goes all the way back to the first show, one of the things that always made Saturday Night Live work for me was that is was a showcase for an amazing amount of great music. Nobody who saw Devo on SNL will ever forget it. Elvis Costello performing "Radio, Radio", Paul Simon and George Harrison singing "Here Comes the Sun"-- every week you were pretty sure to see something amazing.

I watch TV news so seldom that I am barely aware of who the network anchors are these days-- I think I may have thought that Brian Williams was the host of one of the morning chat shows that I also never watch. Frankly, I have really never thought of news anchors as anything but news readers, and yes, I include Walter Cronkite and the rest of his generation in that description. You aren't a reporter-- much less a journalist-- if you aren't out there wearing out shoe leather, and that, I think, is at the heart of what troubles me about the current fuss about Brian Williams making up a story about being shot at. When the Williams thing broke I read a couple of snarky things on Twitter that I thought were clever enough to repeat. One was, "I can't believe a white guy on TV lied to me." The other was, I think, attributed to Jon Stewart: “Finally someone is being held to account for misleading America about the Iraq war. The bad news is that it is Brian Williams.” This, I think, gets close to the truth, but isn't quite there. To get all the way we need to recognize what Brian Williams was doing in Iraq in the first place. He was there because as part of its campaign to gin up support for a war that was entered into under wholly fraudulent pretenses, the Bush administration allowed media "imbeds". At the time there was some mild consternation that the imbed policy was a tactic to co-opt legitimate coverage of the war, but that died down pretty quickly, and a whole lot of media people went and played dress-up, Brian Williams among them.

Bush's team understood how to propagandize, and what buttons to push. People were scared, and that nervous energy was exploited and channeled. Members of congress-- including, I am sad to report, both of New York's senators (but not my then Representative, Louise Slaughter)-- were afraid to be perceived as being anything but all in on the response to the attacks, and the mainstream media essentially went along. To make sure that the media kept going along members were slotted in to go along for the ride, and of course they went. The thing with rides is that what you are getting on the roller coaster is an artificial thrill, and as part of the mechanism to preserve that thrill we go along with the illusion. Brian Williams has been on helicopter rides-- in order to make this ride special he had to exaggerate a little. Really, in his mind, by pumping up the story a little what he was doing was establishing how brave the actual poor bastards who were fighting the war actually were. That was important to do, because the lie from Vietnam was that the troops were not properly appreciated. If you make the war about the bravery of the people fighting it, then criticism of the war becomes criticism of the troops. Even when the troops deserved condemnation, for, e.g., conducting impromptu torture sessions, that criticism can be brushed aside because our moral capacity has been compromised through manipulation of our fear.

I have no reason to believe that Brian Williams is particularly intelligent, or very self-aware. He is, as far as I can tell, a haircut, so picking on him for being a haircut is probably unfair. He did the job he was sent to do, and he is probably as confused as hell about what has happened here. A consequence of our national stability is that we value continuity, and this means that when the chief executive changes, either by failing of re-election, or by reaching the constitutionally prescribed limit, that executive's policies are not, typically, denounced, and are only gradually changed. This bias towards continuity has manifested itself openly only once that I can recall: when Ford pardoned Nixon. The rest of the time we let our war criminals walk out the front door. No decent person would stay in a room with Donald Rumsfeld, or Dick Cheney, or George W. Bush, but instead of being indicted they walk among us as free men. I say that Brian Williams should should be treated likewise: let him continue to read the news so that we can watch him and realize that we are being taken for a ride, just like he was.

I do not recall ever wishing to read more by Harper Lee-- To Kill a Mockingbird seems perfect as it is, and if that is all that Ms. Lee felt she had to say, certainly it was a plentiful and powerful statement. In many ways I feel closer to Mockingbird today than I ever did-- it is the touchstone piece in my Lawyers in Movies class, and I do not think I've wrung its meaning dry yet. If prior experience teaches us anything about artistic works and artistic intention I think one of the things we should know by know is to trust the artist on the question of what should be released into the world. There are very few works that have sat in drawers or on shelves unreleased which deserved rescue from obscurity: I suppose Kafka's novels qualify, and A Confederacy of Dunces, and I'll have to think some in order to come up with more of a list. Will I read Go Set a Watchman? I'm not sure, but I am wary about it. Harper Lee had a long time to think about releasing it-- I'm inclined to trust her earlier judgment.

That was a well-played, perfectly good Super Bowl, filled with great plays. All anyone will remember is the weird play-call that it turned on, and that's too bad.

I hope that's all I remember anyway. It is possible that I will also recall dead children, brave amputees and spilling a coke on the internet. And when-- when, I ask-- did unironically playing "Cat's Cradle" become acceptable?

Jimmy Carter and Bob Dylan.