Outside Counsel

The only U2 album I own is the one Apple put on my iPhone. I don't even have any other U2 songs. I am pretty sure that if I've ever listened to any U2 album straight through it would only have been once. I have seen them in concert. So much of pop culture is when you come to it, and U2 appeared at exactly the moment when I'd lost interest in the kind of arena rock that they have, I think, always been interested in making. When Boy was released in 1980 I was deeply engaged with punk, and although that record was somewhat punk rock or New Wave associated it sure didn't sound like The Clash. And there-- right there, at the end of that last sentence, lies the heart of my U2 problem. In 1980 The Clash were "The Only Band That Matters", a slogan derived from The Rolling Stones' self-annotation as the "World's Greatest Rock & Roll Band". U2, in their grandiose Irish way, set out to secure some amalgam of those designations for themselves. As Robert Christgau said in his review of Frankie Goes to Hollywood (remember them?) hype is "almost as intrinsic to rock and roll as" guitar, and in fairness U2 is as guitar a band as it is a hype. Here's the thing, though: both The Clash and the Stones earned their sobriquets. U2 merely aspires to them. In a way it's like Norman Mailer's striving to be Hemingway or Tolstoy. It would be one thing to work towards that, but it is another altogether to say it out loud. If I am being completely fair, I have to admit that the band seems to be actually engaged with its social mission, although I am am also put out by the way they go about it. Matthew 6:5, you know? Still, if hype is one of your main tools, then every problem-- hunger, third world debt, AIDS-- looks like something hype can address. You go to your two tool toolbox, pick up a guitar solo, say, "Nah," and then pick up hype. "That's the ticket," you say, and then you visit Jessie Helms to talk about Africa.

I will close with this: my customary way of listening to music when I'm in the car is to put my phone on 'Shuffle Songs', and every now and then one of the Songs of Innocence tunes pops up. When I'm caught unaware like that it seems to me that they aren't bad. Maybe U2 is onto something. They are obviously trying, so I guess I owe them an occasional attempt at listening.

Here's a good essay on the evolution of American music, hidden under a stupid headline: For Your (Re)Consideration: Is The Who Better Than The Beatles?.

I suppose there are different metrics to make this sort of evaluation; and I question whether it should be "are" instead of "is" (or for that matter, whether the question should be put in the past tense.) For the time being I will say only this: it seems to me that there are about as many meh Beatles songs as there are really great Who songs. (Oh, "Blue Jay Way". How useful you are in discussions of this sort.) It seems to me that there are about twice as many great Beatles albums as there are great Who albums, and I think I am being generous there. (Who's Next is indisputably great, a record that stands with anyone's music. After that I suppose Sell Out-- perhaps The Who's Magical Mystery Tour. And Live At Leeds is pretty great.)

Think of it this way: The Beatles are in all post-Beatles rock and roll DNA. The Who were likewise influential, but their influence was more pernicious. The Who brought us the rock opera and its attendant bloat. I don't know if I will ever get over The Who ruining The Kinks. The only real difference between The Who and The Kinks is that Tommy and Quadrophenia  are better records than Schoolboys in Disgrace or Preservation Acts One and Two. In fact, I'd put it to you that The Kinks win in a head-to-head evaluation with The Who-- except maybe but for Who's Next. I don't think there is anything in The Kink's catalog that can match Who's Next.

Thoughts on my skill set, via Futility Closet:

Aristippus passed Diogenes as he was washing lentils.
He said, “If you could but learn to flatter the king, you would not have to live on lentils.”
Diogenes said, “And if you could learn to live on lentils, you would not have to flatter the king.”

Bernie Sanders is polling pretty much where all the lunatics who are running for the Republican nomination are polling, but all of Sanders' coverage talks about how he is a long shot, or a dark horse. I suppose that's true, even though none of the coverage of Marco Rubino, or Ted Cruz or Rick Santorum or Mike Huckabee or Chris Christie or George Pataki or Rand Paul dwells on how absurd their nomination would be. (Jeb Bush gets a pass on this- presumably because however horrible to contemplate a third Bush candidacy is, he is nevertheless as plausible a candidate as the rest of his family was.) Me? I'm voting for Bernie. As a responsible liberal and a proud son of the City of Homes and Churches myself I see it as my duty to vote for the most progressive candidate on the board. I'll get around to voting for Hillary "Scoop Jackson in a Skirt" Clinton when the time comes, but for now, I find Sanders' brand the most appealing.

In the meanwhile, wouldn't it be refreshing if political coverage told us more about what everyone proposes to do, and what the effects of their proposals might look like? All of the Republicans, for example, steadfastly duck when asked about how the US should be dealing with the Islamic State in Iraq and Syria-- a situation, it should be noted, that arose because the last Republican President decided that breaking Iraq would be a swell idea. Or, hey, since they all want the ACA repealed what do they propose to do about healthcare going forward? Climate change-- let's see a show of hands about what we need to do there? (My thought? Start spending some coin on infrastructure, because it's going to start getting wet.)

As is his habit, Charley Pierce nails it:

There is nothing extreme about wanting to stop the country's headlong rush to oligarchy, or about wanting to reverse Citizens United, or, if we take the entire world as our context, about wanting to provide free college tuition. Those stoners who run the Symbionese Liberation Republic of Germany adopted that policy over a year ago.

I'm just going to throw this out there, and think about it a bit more before I write about it more. One of the things that vexes me about the current state of our glamor profession is the undercurrent on anti-intellectualism that seems to run through it. Time was that merely being admitted to law school required a pretty solid academic record as an undergraduate, and it should go without saying that one of the things that is supposed to distinguish lawyers from laypeople is that we belong to one of the so called "learned professions". The ground has shifted somewhat-- nationally law schools operate on a more or less open admissions basis, but even so I find myself constantly encountering lawyers who pretend that they have vocabularies that wouldn't register on the SAT; and lawyers who say things like, "My kid is really smart-- too smart to be a lawyer." Few of the lawyers I encounter can tell you much about the law outside of the particular area they practice in, and even then lots of the lawyers I talk to know shockingly little about how the law in their area came to evolve into its current state. Some of this is, I think, selection bias. Most of the lawyers I know are trial lawyers, and they may be concealing their erudition in order to present a just folks veneer to juries, but it troubles me. The best lawyers I've known read a lot, and thought a lot, and wrote a lot. The best lawyers I've known liked talking about the law. It really bothers me that so much of the discourse I encounter is on the level of plumbers discussing drains, and I think that part of the reason for this is because law schools don't sufficiently emphasize the academic aspects of the work we do. Part of that may have to do with supply and demand-- students want to learn about the craft, and care less about the background, and I get that. I don't like it, but I get it.

I'm starting to outline a law school course which I'm tentatively calling "Civil Practice". The idea is that it will be a sort of omnibus practice course, which will include elements of New York Practice-- a subject dear to me- along with exercises in some of the more or less untaught lawyer skills. Client counseling skills, negotiation, and some other things. What other things would Outside Counsel readers suggest?

Oh, and before I forget, so long B.B. King. I'm pretty sure it would be impossible to overstate his
importance to music, or to American culture. He ranks with Count Basie, and Louis Armstrong and Duke Ellington-- all giants, and all essential to American music. These days we all have our music in different formats, and play it on different devices, but if there is no B.B. King accessible to you at all times your music collection is incomplete and you need to fix that.

One of my Lawyers in Movies theories is that although the narrative of American jurisprudence teaches us that judges are the heroes, its portrayal in popular culture is closer to the truth: the real heroes are the lawyers. It's the lawyers who take the cases, and create the arguments, but the judges get the ink. In the casebooks that we are taught from the decisions always report the names of the judges who wrote, but the names of the lawyers-- and their briefs, for that matter-- are never mentioned. Interestingly, there are apparently not many movies about the Supreme Court (this Wikipedia list omits The Talk of the Town, for my money superior to The Pelican Brief). Part of this is that appellate advocacy can be pretty dry stuff, and part of it is that appellate court judges really have pretty narrowly defined powers. I liked Stephen Carter's The Emperor of Ocean Park when it was about affluent African-American culture, a subject about which I know damn little, and it was all right when it was about academic politics; but its McGuffin was about a corrupt Circuit Court judge, and that was simply too implausible to sustain my suspension of disbelief.

The experience of each of our daughters at Smith was distinctive, and that is a testament to this remarkable school. We were very fortunate to have been able to experience their adventures vicariously, and to have been able to give them each their unique experience.  It was also pretty great to have a reason to visit Northampton regularly, a place I otherwise might never have gotten to.
I didn't even get to Local Burger this time, and now I have no assurance that I ever will again. (We did have one last meal at the East Side Grill, very nice, as always.) We also got a last look at the (amazing) Smith Museum of Art and the Rare Book Room at the library.

Looks like the Bills will be one of the beneficiaries of Tom Brady's preference for slightly softer footballs. Of course, that's assuming that Belichick doesn't spend the summer devising a Bills-beating scheme for whoever the Pats' backup is. I expect he's reviewing film right this moment

I ran across this news in the New York Law Journal. There's a Utica City Court Judge named Gerald Popeo who was recently investigated by the New York State Commission on Judicial Conduct, which concluded that he'd committed a series of acts of misconduct against prosecutors, defense counsel and defendants who appeared before him. This misconduct included that he spoke the phrase "country niggers"; referred to a prosecutor as a "cigar store Indian"; stated that he wished he could slap a grin off of a defendant's face; told a defense attorney to shut up; told a prosecutor that he was more concerned with getting a conviction to add another notch to his belt rather than doing justice; suggested that the prosecutor sought forfeiture of illegal proceeds in order to buy a new couch for his office or a new laptop; and improperly summarily held two defendants in contempt of court and sentenced them to jail time in violation of their due process rights. The Commission rejected the finding of the referee that the judge had spoken the racially offensive words "country niggers" to two young attorneys, one of whom was African American. This last part is kind of weird: basically the panel accepted all of the other findings, but cherry-picked the last out of consideration. It also apparently missed that the "cigar store Indian" crack was racially offensive, probably because the Commission consists of ten white guys and one Hispanic.

I try to avoid calling out judges here on Outside Counsel because who needs the tsuris, you know? However, Judge Popeo, who remains on the bench, is going to be an exception. I have heard some jaw-dropping stuff coming from the bench and the robing room and from chambers, but finding that a judge said these things and then allowing him to continue on the bench is shocking. Of course, undue deference to sitting judges is nothing new, and as far as I can tell it is always political, but the guardians of the credibility of our institutions should be more scrupulous.

On the way into work this morning I mentioned to A. that Mike Huckabee is running for President again. "I'm a little conflicted about this, " I said. "One the one hand, he is clearly the craziest one in the field right now. On the other, he did pardon Keith Richards".

"You mean like Pappy O'Daniel pardoned the Foggy Bottom Boys?" she asked. Yes, I said, "Exactly like that."

In 1966 William F. Buckley sent Norman Mailer an autographed copy of The Unmaking of a Mayor, the memoir of his unsuccessful run for mayor of New York City the previous year.
Mailer turned to the index and looked up his own name. There he found, in Buckley’s handwriting, the words “Hi, Norman.” (Via Futility Closet.) (When asked what he would do if he won, Buckley said, "Demand a recount".)

Buckley is a pretty good example of why conservative humor is not so funny. Here's a quote from Unmaking: “You can’t walk from one end of New York to the other without a good chance of losing your wallet, your maidenhead, or your life; or without being told that white people are bigoted, that Negroes are shiftless, that free enterprise is the enemy of the working class, that Norman Thomas has betrayed socialism, and that the only thing that will save New York is for the whole United States to become like New York.”

Let's parse this statement a bit. Buckley says that if you walk from the Bronx to Sheepshead Bay you are liable to be robbed, raped or killed; that you will encounter racists and socialists, and that New York is a weird outlier when compared to the rest of the United States. He is using several of the tools used to write humor and to craft arguments, chiefly hyperbole and the litany. At first glance it appears as if he is setting himself in opposition to his audience--  people in New York who vote for mayor-- but actually he is not, and we see this in one of his signature moves: the deployment of arcane vocabulary and esoteric cultural references. "Maidenhead", tehehe, is a reference to the hymen of a virgin, so it's a little dirty. Norman Thomas I had to look up: basically he was a socialist who was mostly active in the 20's, 30's and 40's and who seems to have been a right thinking kinda guy. By making these references Buckley is drawing a circle around himself and his audience: we are the people who are mildly amused by referring to virginity and feel good about recognizing a relatively obscure political figure from earlier in the century.Is it funny? Not particularly. Buckley is basically sneering at everyone who isn't William F. Buckley, and this, to me, is more or less the paradigm of right wing humor. It's Us Against Them, and if you don't think it's funny guess which one you are?

Much is made of Buckley's patrician cool, but he wasn't classy enough to be a good loser, which one supposes is the sort of thing expected from Yale men of his generation. Dismayed by the strong support for Lindsay among wealthy Republicans, Buckley mocked their Upper East Side neighborhood as the “densest national concentration of vegetarians, pacifists, hermaphrodites, junkies, Communists, Randites, clam-juice-and-betel-nut eaters.” I'm not sure why supporters of Ayn Rand get enumerated here, among the hermaphrodites and the junkies, but they were never in better company than when they were set against William F. Buckley's vision for New York.

Viewed in this light, Buckley's little jibe at Mailer-- himself a former mayoral candidate-- seems less funny and more bullying, doesn't it? 

It is probably overstating things to call the current situation in Albany a crisis in state government: in many ways it looks like business as usual. Sheldon Silver, immediate past Speaker of the Assembly is  under indictment; so too is the Majority Leader of the State Senate. The cats who have occupied these seats in my lifetime have always been gonifs, to some extent. What seems interesting is that this may be an opportunity that is new. Wouldn't it be cool if the rank and file members of both bodies got
up on their hind legs and democratized their internal operations? It would require a floorboards up rewrite of the rules of both, but these are probably close to the circumstances under which such a change might occur. The trick to it would be for the constituents of the incumbents to make it clear that reform is a priority, because otherwise all we will see is a reshuffling of the deck. One good place to start might be the whole "This is just a part time gig" rule that we presently have. State Senators with insurance businesses, Assemblymen who practice law, and all the rest are openly grafting. Even if "all" you are doing is running a criminal defense practice you are nevertheless a part of the political apparatus that the judges you are appearing in front of are also a part of, and that is bad.

In my Lawyers in Movies class I tell my students that I am a lawyer today because one Sunday, after Mass, when we were visiting my father's parents, I wandered into their living room and found Inherit the Wind on TV. At one point in the early phase of the trial Henry Drummond, the Clarence Darrow stand-in, objects to the court addressing Matthew Harrison Brady, the William Jennings Bryan character,  as "Colonel Brady", an honorary title. I've had judges greet my adversary as "Senator" or "Judge", and in the instance of "Judge" I've gone on the record and objected: "There is only one judge in this room right now, your honor, and you are going to be passing on all of the objections." (This is one of the reasons I am such a popular guy.) Maybe this seems like a small thing, but I think appearances make a difference, and I think it looks fishy when a governmental official does business with the state, or exploits his or her position for any advantage, no matter how slight. The whole system works because we think it is fair and honest, and anything that erodes that trust undermines the entire structure. It would be nice to see the New York State Legislature take steps to validate its legitimacy.

I have just learned that one of my Discovery class students from last term has died, horribly. In every class I've ever been in there has been someone like him, a student who is determined to do things the hard way, to re-invent the wheel, to find a better way to do the things I am trying to convey. When I was a student, it should go without saying, that student was me. I try to take special pains to connect with that student, in a no doubt mostly vain effort to spare the poor bastard some of the lessons I learned through years of screwing up. Although it is exciting and fun to have students who pick it up quickly, and get it, and are obviously going to be highly skilled sooner rather than later (or never), it's the Duanes that I am trying to reach, in the hope that I can spare them some of the trial and error that I went through.

Duane Bores deserves to be remembered as someone who worked hard to gain every inch. It grieves me that he will instead be recalled as someone who went home one day, shot and wounded his parents (they are expected to recover), engaged in a firefight with the Wheatfield Police, then shot himself in the head. Poor son of a bitch-- he had to do everything the hard way, and then I guess it got too hard