Outside Counsel

Ross Douthat has questions; Outside Counsel has answers:

1. Yes
2. Yes
3. Yes
4. (a) Sure; (b)Yes; (c) Yes; (d) join the 21st Century; (e) no; (f) no
5. (a) Yes; (b) no
6. No
7.  (a) No; (b) No *

______________________________________________________________
* Subject, of course, to exceptions relating to the health and safety of the child, as embodied in current American jurisprudence.

These are not particularly difficult questions. If you want to be a bigot in your house, or in your church there isn't much anyone can do to stop you. Sooner or later society will change around you, or you will die, and then the arc of history will continue its curve. In the meanwhile, your "sincerely held religious beliefs" , founded as they are in interpretations of stuff that's been translated to suit cultural norms centuries old, and based on social norms prevalent in a culture that was largely agrarian, polygamous, and theocratic thousands of years ago have no place in our culture today except to the extent that those beliefs encourage you to be a decent person. Seriously, what part of 'render unto Caesar" is so hard to understand? It is embarrassing that the Christian religions are leading the pack on this issue.

At UB Research & Writing is a three semester course taught by non-tenure track faculty who almost
certainly work harder and are better grounded than most  law school faculty, so I have a little bit of a problem with the program. That said, I'm pretty committed to the law school, and to the idea that there is a professional obligation to participate in training young lawyers, so I happily participate as a judge in the second semester moot court. As a rule I am very favorably impressed with the students' preparation and poise, and this year's group was exceptionally good. Each R&W section has a different case to brief and argue, and the one I landed on this year was First Amendment case about a high school student who unfurled a banner depicting a joint smoking President Obama (captioned "Yes We Can-abis") at an event. During argument, thinking myself clever, I asked one of the students if her analysis of the student's right to free speech would be different if, instead of the President the banner had depicted "Mr. Zig Zag", and utterly baffled her.

One of the big issues that I confront in the teaching piece of what I do is that my students' cultural references are different from mine. Although I have daughters who are the ages of many of the students I work with, they are a poor sample for this sort of thing, because they grew up with my meshugenas. Even so, it was unreasonable of me to expect that either my students or my daughters* would have much, if any familiarity with the stoner icons of the Nixon-Ford-Carter years, and I shouldn't have assumed it.  (It is possible that I was trying to demonstrate how groovy I am, what with being down with the latest slang and whatnot.) In any event, the student handled the question with aplomb, ("I'm sorry your Honor, I don't know who that is,") and we moved on. Comes now the news that Willie Nelson is planning on launching his own brand of reefer, and although Toby Keith says to be careful I reckon that as an example, at least, I could do worse than to use Willie the next time I need to frame a hypothetical. Hey, at least I didn't use Cab Callaway. 

__________________________________________________________
* In fact, a post hoc poll of my daughters reveled that they are, apparently, innocent of any awareness of Mr. Zig Zag.

A few months ago four partners from the Commercial Litigation Department of an old-line Buffalo firm walked out and opened the Buffalo office of what had been up to that time a medium sized Rochester firm. This was big news for several reasons. One of the partners is a larger than life sort of character, for one thing, the kind of lawyer who becomes a kind of alter-ego for the firm in question. It was likewise notable because in the minds of most observers the departure placed the ongoing existence of the firm in question in serious question. When a shop has over a hundred people working for it a lot of people get jittery.

It emerged a week or so a go that the managment of the firm-- it's Damon & Morey if you can't be bothered to click the link-- are in merger discussions with another Rochester firm, one with an already substantial Buffalo presence. That merger, if it happens, would work a substantial change on the law firm landscape in these parts, probably displacing the two current largest shops in town in terms of size, client base and the rest. The fallout would probably also be pretty significant. I would expect to see a fair-sized handful of smaller shops opening around here, for example.

All of this has me thinking about the shoemaker's children. Just about the worst run businesses I can think of are law firms, and since so many of us are in the business of telling other people how to run their businesses this qualifies as a legitimate irony. It would make a lot of sense for law schools to offer courses in law firm management, and it appears that there are some schools out there which do-- but some of the classes my quick Google search turned up are more focused on the acquisition of general practice skills than they are on understanding the dynamics and structure of a complex business model which is a fraught as what we do. Every day the chief assets of a law firm put on their hats and go home, leaving behind file cabinets full of other peoples' problems, fancy leased offices, and some computer equipment that is worth pennies on the dollar. Have you ever been in the space occupied by a law firm in dissolution? I have, and it is a horrifying sight.

Nearly as horrifying is the effect on the practice of law in a region when a shake-up like this occurs. As lawyers we pretend that a lot of things are true that really aren't. We pretend, for example, that when someone is placed under oath that they will tell the truth-- or that if they don't our wizard lawyer skills will ferret the truth out. We also pretend that there is a stability to what we do. I suppose if we actually acknowledged the realities the existential doubt which would be created would form a vortex of depression and anxiety which would blanket the economy like a a dark, wet cloud. Here's a larger reality: the ongoing concentration of legal talent in larger and larger practices mirrors the concentration of wealth in US society generally, and is bad for everyone who requires legal services-- which is to say, everyone.

It would be really interesting to teach a course about law firms. I think it is a neglected field, and I think that there are a lot of people who will suffer because we really only have anecdotal information about how the majority of lawyers practice. I know from my own observation that when law school graduates hit it the realities come as a serious shock-- and I think that shock is one reason a lot of legal academics decide that that they'd rather be anything but a practicing lawyer. Sadly for them the realities of being law school faculty are also rarely taught.

My sister-in-law's wedding conflicted with the Utica Boilermaker last year, so I missed it for only the second time in, I think, 14 years. The wedding was fun, but this year the race went to a registration system that gave a preference to participants from the previous year-- and last year registration closed in two hours. With CLA back on this side of the Northern Hemisphere we both wanted to run it-- ideally it  is the center of my summer. I arranged my Saturday to be near a computer at noon when the registration went live, and we are both in. So now I have that to look forward to, and I'm really happy about that.

It was kinda cool to have the University at Buffalo in the NCAA Tournament-- the first time a school I have a relationship with has been. Now, about those uniforms.... Look, UB is the flagship university of the State University of New York, but our brand isn't New York, it's Buffalo. This is something that needs to be fixed.

Although it is tempting to get all Groucho Marx about learning my Martindale-Hubbell rating instead I will thank the colleagues who took the time to fill out the survey.

The story of the making of Blood on the Tracks is pretty well chewed at this point: Dylan recorded most of the material that eventually made it on to the album in New York with the same session guys who did the music for Deliverance, then went home to Minnesota for Christmas. He played the demo for his brother, who thought it lacked spark, so Bob re-did all or most of it using local musicians. Over the years songs from the New York sessions have emerged on various compilations, and for the most part I'd have to say that Bob Dylan's brother made the right call. The Blood on the Tracks that we ultimately got is the best Blood on the Tracks. The New York session versions are interesting-- Dylan made some interesting changes in lyrics, and "Tangled Up In Blue", a song that plays a lot with point of view, is particularly fun to compare and contrast. One song that I had not heard the New York version of until just now has been "Lily, Rosemary and the Jack of Hearts", a long shaggy dog story that I have always loved. Here it is. The most notable change is  the tempo-- in the St Paul version it rollicks along, but in New York, for what ever reason, it kinda drags. It does, however, feature the 'lost' verse that Joan Baez sings: "Lilly had her arms around the man she dearly loved to touch/She forgot all about the man she hated, who hounded her so much." For me it adds little: the official version seems to have more dramatic tension at that point in the song.

I do not think I could do capital defense. I am unalterably opposed to the death penalty, and I am pretty sure of my abilities as an advocate, but as it is I identify more with my clients than I should-- in a death penalty situation the margin for error is too small for me to feel comfortable. That doesn't mean I can't appreciate the strategy of the defense team in the Tsarnaev case. They say that the best way to win a capital case is to never let it go to trial. With that option closed, Judy Clarke, David Bruck, and Miriam Conrad are doing they only thing they can do: accepting responsibility and arguing for mercy. You'd be surprised at how effective that can be. When you are dead on liability in my kind of litigation you buy a lot of credibility by acknowledging it, and credibility is the coin of the realm in from of a jury.

I'm looking forward to LCA's Senior Thesis dance performance.

Two things that seem to me to be often overlooked about Bob Dylan come into focus for me on Lost on the River/The New Basement Tapes. The set itself, produced by T-Bone Burnett, consists of Basement Tapes-era Dylan lyrics for which music has been written by Elvis Costello, Rhiannon Giddens, Marcus Mumford, Jim James and Taylor Goldsmith, who perform as a band. The first point is that Dylan himself has collaborated with others more frequently than is generally assumed; the second point is that Dylan's reputation for writing great melodies is nearly completely overshadowed by his skills as a lyricist. Dylan himself has bemoaned the latter point, noting in Chronicles that Duane Eddy recorded an album of guitar instrumentals of Dylan songs. Eddy was far from the only one, of course, but his record is pretty terrific. In fact, with the notable exception of his work with The Band, in general when Dylan collaborates with others it is usually with another lyricist. Jacques Levy (“First of all, it got me a little nervous. I said to him — and it was very funny at the time, though I don’t know how funny it will be now — I said: ‘You know, I write the lyrics; I don’t write the music.’ … It never dawned on me that he was going to ask me to write lyrics for him.”), and Robert Hunter being the most prominent examples.* So what does Lost on the River sound like? Well, it doesn't sound much like a Bob Dylan record, but that's fine. It seems to cohere as an album, which tells us that Burnett's production counted a great deal, although I wish the voices worked together better. A big reason the Traveling Wilburys recordings were fun was precisely because the singers didn't sound homogenous-- it would have been fun to have more of that, although I will note that Giddens comes through fine. What we really get here are songs that are sung by each of the principals that sound like they'd fit just fine on a personal project from each of the principals. Not that there's anything wrong with more Rhiannon Giddens, and I'm fine with more songs that sound like Dawes, or My Morning Jacket as well. The Marcus Mumford numbers are forcing me to concede that Mumford & Sons are better than my inner traditionalist snob would want to concede: the Dylan/Mumford/Goldsmith "Kansas City" (lot of songs about Missouri on this record) is a highlight.What this doesn't sound like is a Bob Dylan project. I've been listening to it for a couple of days and I haven't yet heard the sort of Dylanesque turn of phrase that characterizes great Dylan lyrics. These are good songs, but that lyrical spark isn't there.  Is it a good listen? Sure it is-- it almost couldn't help but be, and a good thing too. Ultimately it has to stand or fall on its own merits, otherwise it would just be an odd gimmick. It's better than that-- in it's way it would be an interesting companion on a mix tape featuring Peter, Paul and Mary singing"Too Much of Nothing", Ian & Sylvia, on "Tears of Rage", (or"Quinn the Eskimo" and "This Wheel's on Fire"), Manfred Mann on "The Mighty Quinn", Fairport Convention covering "Million Dollar Bash",  Julie Driscoll, Brian Auger and the Trinity doing "This Wheel's on Fire" and "You Ain't Goin' Nowhere" by the Byrds. 
______________________________________________________________
* Of course, there are counter-examples. Rick Danko worked up tunes to Dylan lyrics, and it seems probable that Robbie Robertson did too, even where not credited.

Paul Ceglia has disappeared. Frankly, this story just keeps getting better and better. Last time he went to ground he was in Ireland. He'd be smart to stay out of the Greater Wellsville Metro area-- he's scammed probably everyone who lives around there. Canada would seem like the obvious place, but the right play might be Venezuela.

A few summers back, when Caroline and Wendy were in the 90 Mile Canoe race, on the last day we were at an Adirondack country store when a van with a -- I don't know, Mennonite?-- family pulled up. The women were in ankle length dresses and wore bonnets, the men were in black, with plain white shirts. They were all wearing running shoes, though, which was an incongruous look. I suppose the cobbler's art wasn't practiced in their community. They all got ice cream cones.

Because I am a jackass I'd let the gas run super low in our car, and as luck would have it the store where we were-- the only gas for about 50 miles-- had lost power over night. They couldn't run the pumps, and I found myself looking at that family and thinking that they were able to enter my world at will, but that for me to enter theirs meant that something had gone badly wrong-- no gas, stranded.....

I think it is probably true that there are no persuadable voters for whom HRC's email issues will make any difference. What troubles me-- really more than the transparency issue, which is a concern-- is that what we have here is a little preview of the coming months. It'll be one bullshit "scandal" after another, with Cokie Roberts weighing in, and the internet humming away, and who has the energy, you know? The whole idea of Clinton "scandals" is largely made up as far as I can tell. Ol' Bill and his Bimbo Eruptions-- irrelevant to the manner of governance under his administration. Whitewater, which the NYTimes fell for hook line and sinker was a nuthin muffin. HRC did not kill Vince Foster in the Drawing Room with the candlestick. Nevertheless, we had a ginned up Constitutional crisis, and even though that didn't work out so well for the Republicans in Congress we are going to go through it all again. First time as tragedy, second time as farce-- isn't the third time supposed to be the charm? Ugh.

Celeriac. Sometimes a vegetable is life changing.

I mentioned Game of War: Fire Age back in January. Briefly, it's a game you play on your phone. At the time I was kind of surprised
that the thing made enough money to run commercials featuring a supermodel during NFL games. I'm still nonplused, but I guess I shouldn't be-- the thing is as craftily engineered as the Bellagio-- and it grosses a million bucks a day. When you load it up for the first time you are prompted to build things in your city-- farms, quarries, barracks for soldiers. It prompts you to go on quests to gather resources for your city, and gradually you figure out how to do more elaborate things. All of these things essentially involve tapping on buttons-- there is really no virtual reality here, but doing stuff generates a feedback response-- a chime, or a banner or something like that. It makes money by selling players "gold". Although there are a lot of things one can spend the in-game gold on, what these things mostly amount to is faster play. Here is the genius of it: as one acquires resources and advances into upper levels the pace of play starts to get slower and slower unless you pay to speed it up. Every time you launch the game it opens with an ad you can tap to buy a package of goodies-- mostly "gold" but other in-game things as well. If you buy a package the members of your alliance all get goodies too. Game developers talk about "stickiness"-- the tendency of players to keep playing, or return to the game. The alliance system is another ingenious way to increase the stickiness of the experience, because members of the alliances can use a chat function, giving the experience a social dimension. It's a slot machine that doesn't ever pay out any quarters, or have to comply with any pesky Gambling Commission rules-- but it'll get you in Dutch with the wife just like real gambling.

As lawyers we tend to take for granted the impact that jurisdiction has on the quantum of damages-- and to assume that the way things are done where we practice is more or less the same as the way things are done elsewhere. Of course this is not the case, as is nicely illuminated in this discussion of scheduled loss in workers compensation cases around the country.

As is usually the case with music videos I'm not so sure I see the connection between the song and the visual, but I love the noir look of this all the same.

Good review of a complicated record:  Jon Landau on The Band's Cahoots.  It seems to me that Greil Marcus's conception of "the old, weird America" has always been better exemplified by The Band than by Dylan, although, to be sure ol' Bob has traveled there. The problem with The Band is an auteur problem: are we willing to concede to Robbie Robertson, a Canadian, whose mother was born and raised on the Six Nations Reservation, sole credit for a vision of the United States which seems like some sort of Jungian collective unconscious version of the American identity? It seems improbable, and there is testimony-- chiefly that of Levon Helm-- to the contrary. And yet, there's the evidence, right there on the label. And is it so improbable, after all? Doesn't outsider-- or maybe better, peripheral status, confer insight that someone closer might miss? Aren't some of the most perceptive movies about America by immigrants? Is there a better "old, Weird America" movie than Billy Wilder's Some Like it Hot? Isn't Saul Bellow's Augie March as American as Columbus himself?