Outside Counsel

This teaching Constitutional Law thing is proving to be an interesting challenge, because I am making a conscientious effort to teach it as a class about how the US government functions rather than a course about law per se. I suppose it's a fine distinction, and one that may only matter to me, but as I have geared up for this course one of the things that I think I have come to realize is that there is a distinct lawyerly bias to the way that we approach the subject. The American jurisprudential tradition is common law, and common law is at its root based in storytelling, anecdotage, parables about disputes and how they were resolved. "The life of the law has not been logic, but experience."

That's fine, and certainly it is an important and useful way for lawyers to understand the Constitution, but since I am not-- in this class-- training lawyers, I want to do it differently. The textbooks and hornbooks and commentaries all start with Marbury v. Madison, because, I think, Marbury established the concept of judicial review of constitutionality, and thus establishes that the proper methodology for the study of constitutionality is through the filter of the judicial decision making process. I see several problems with this. First, it seems to elevate the courts, and particularly the Supreme Court, to a level of superiority over the other two branches that the text of the Constitution certainly does not support. More notably, because the federal courts in our system can only resolve cases and controversies they are necessarily involved exclusively in examining and deciding situations that are, virtually by definition, outliers. Life on the edges may be more interesting-- I'd be a fool to dispute that-- but the frontier is not where most of us live or work or interact with our government. I think that if my goal is to teach how government operates I need to be starting in a place that is different from the way I was taught Constitutional Law.

I don't like the Designated Hitter, and I don't want the National League to adopt it.

Thinking about the NFL, the Rams and Los Angeles I have to wonder if perhaps the league hasn't over-played its hand. We are told that the NFL has wanted a team in "the second largest media market in the country", but does it really? Obviously TV revenue is what makes the NFL so profitable, but the teams share that money equally, so why do they care if there is a team in that television market? Anybody in LA who wants to watch an NFL game can turn on their TV-- I've done it myself. And hasn't the history of pro football in the City of Angels shown us that it is not a great market for teams? San Diego struggles with attendance (and may move to LA) because the climate is so great that there are loads and loads of other things to do there. Seems to me that LA is the same deal. Los Angeles worked well as a feint-- something to threaten the rubes with. Rubes is the right word-- one of the things that is the most appalling about the deal St Louis had with the Rams is that the city promised that its stadium would be "top tier". Isn't that just lovely? A few years back Tank McNamara ran a strip about two baseball players whose contracts each provided that they would be the highest paid player in the sport, resulting in a serious of escalating contracts. (As I recall at some point the contract amounts started increasing a dollar at a time. Seems to me something like that would make a baseball fan out of Zeno.)

Aren't the owners sacrificing a useful negotiating tool here? There don't seem to me to be too many places in the US that are going to be thought of as good markets left. We have established, I think, that Toronto isn't going to be an NFL team any time soon-- maybe they just hated watching the Bills, but any team that moves to Toronto is either going to be an expansion team or a team that just sucks, so that doesn't seem like a good play. You know what the largest US city is without any major league team? You can win bar bets with this one: San Juan. You think San Juan is aching for NFL? One hears about placing a franchise in Mexico City. You know what kind of football they like in Mexico City? The kind that Carlos Vela plays. London? You know what kind of football they like in London? Does the name Wayne Rooney mean anything to you?

It may be that the move to LA by the Rams represents Peak NFL, and if that's the case it makes a sort of sense. The sport is in danger of seeing its popularity wane-- it may not be possible to make it safe to play much longer. Maybe this is the moment-- push all the chips into the middle and then walk away with the whole pot.

Watched the Democrats debate for a while on Sunday, and at this point I'd have to say that HRC isn't even my second choice. Bernie Sanders is pretty much right about everything-- the United States lags behind the industrialized world because the system is set up to preserve the status quo, through the manipulation of the gullible financed by the 1%-- and it doesn't have to be that way. Secretary Clinton is arguing that she represents the best chance for holding our ground; Senator Sanders says we can have universal health care and an educational system that makes opportunity available to all-- just as they do in Western Europe, and Japan, and everywhere else where they value those things. Robert Reich explains how.

I'm sure someone somewhere has written about the idea of spending a Sunday cooking the recipe from the Sunday New York Times magazine. It is a deliriously bourgeois thing to do, on so many levels, starting with the fact that anything that involves food preparation and the Times exists on a level so far from mere subsistence that the activity in and of itself bespeaks a sort of leisure that in almost any other context would cry out for casting Maggie Smith in a cameo. Add to that the fact that the recipes in the Times magazine always feature at least one exotic ingredient that the paper helpfully notes, "can be ordered online." If the ingredient list says, "See note" the chances are overwhelming that you will never eat the dish in question. There are occasional exceptions-- I have a friend who by god ordered pimento wood in order to make a (very delicious) barbecued chicken once, but let's get real. If you are reading the Sunday Times at all, the likelihood that you are going to be getting out of your pajamas and going shopping is about as remote as your going to volunteer to rescue sea turtles. Sure, it might be worthwhile-- even uplifting, but it isn't happening this morning. Beyond that, there is apparently a Times rule that says none of the ingredients can be obtained from a single source. Macy's won't have some critical item. You could fly to London and go to Harrods, but the  dried mushrooms won't be there, and they are the entire point of the dish. If you live within a 25 mile radius of Times Square you are pretty much going to have to make a trip to Balducci's, then out to Flushing, then the Hunt's Point Market. If you live anywhere else in the industrialized world get used to disappointment, or commit to a hunter-gatherer lifestyle that will make walrus hunting look like a spa day. A recipe from the Times magazine is a commitment, just like living in a house designed by Philip Johnson, or setting out to reform public health in Thimphu, or anything else you read about in the Times magazine is a commitment. There's no room for dilettantes in the New York Times Sunday magazine.

Last week's Times had this recipe for pork chops in a pumpkin seed sauce. Sam Sifton, with characteristic understatement, said it is so delicious that the first time he had it it made him bang his spoon on the table with delight, so I thought perhaps I'd give it a try. As it happens A likes pumpkin seeds, so we had some on hand, lulling me into a false sense of confidence. I also reckoned I had an ace up my sleeve: probably Wegman's would have everything else I needed, but those ingredients at Wegmans would be fancy and exotic. I could go to PriceRite for the same items where they would be priced as staples! This proved to be mostly true, but I still found myself at the Lexington Co-op (chipotle peppers in adobo sauce). Two stores may be a record for me and a Times magazine recipe, a triumph somewhat diminished by having to go out twice in a raging snowstorm. Oh, and nobody had fresh plum tomatoes, so I had to substitute canned San Marzano. If I'd gone to Guercio's the day before I'd have had the right tomatoes. These are the compromises the Times magazine recipes force upon us: three stores minimum, or not quite the right ingredients. 

And how was it? Well, we aren't ready to talk about that yet. First, there is one more rule about New York Times magazine recipes we must discuss: they are written for people with a skill level that is roughly three to five degrees higher than the skills I possess. It's mostly subtle things, and they pretend this isn't so by pretending to describe the necessary techniques in terms so simple that I go storming in without any inkling that I am already waist deep in trouble. This particular dish had three such snares. The first was the chiles de árbo. Because I've been spending a lot of time in doctor's offices lately I had a good supply of latex gloves (Thanks, Obama!) so I figured I was ahead of where I usually am when handling chiles. Sam Sifton had a surprise for me, though. "Set a bare skillet over high heat for 5 minutes, then add the chiles. Toast until they are darkened and fragrant, approximately 4 to 5 minutes." Upon hitting the blistering surface of the skillet the chilies instantly blackened and released a choking smoke that would be a war crime in any other context. Just then A wandered in, having returned from attending services at her religious not-for-profit. This meant that we both got a dose of the chile vapors. Undaunted, I proceeded to the next step: "Return the skillet to high heat. Add the tomatoes, onion and garlic, and cook, turning occasionally, until charred, approximately 10 minutes." 
 I got a decent char on the vegetables, but I also thoroughly blackened the  stainless steel skillet, which earned me a sharp word from my lifemate. Several, actually. Still, as they say in Mexico, you can't make a pipian sauce without ruining the cookware. I pressed on, toasting peanuts, pumpkin and sesame seeds, then making a puree of the vegetables, toasted seeds and chiles de árbo, which had been soaking in hot water.

"Add the oil, lard or chicken fat to a large, heavy-bottomed pot, and heat over medium heat until it is nearly smoking. Add the purée. It will sputter a lot. Lower the heat, and stir, cooking the mixture down to a thick paste. It will continue to sputter and pop."  I'd moved on to a different pan by now, and when A. returned to the kitchen she noted this. "Are you going to ruin every pan we own?" she asked. This seemed unkind, since I'd only ruined two, but perhaps the sputtering and popping and the eye watering aroma had her out of sorts. 

"So how was it, Bill?" Good. It was really good. A. rated the heat as between 8 and 9; I'd say it was between 7 and 8, depending on whether I was inhaling or exhaling. Now that I have the techniques down-- and a lot of leftover ingredients-- I might make it again. Or I might try building a sailboat. 
  

This makes me want to watch Duck Dynasty, even though I know that it couldn't possibly rise to this level of comedy consistently. What I'd really like to see is this Duck guy go hunting with Ted Cruz, Ted Nugent and Gene Simmons. Would Cruz wear KISS makeup if Simmons were along on the hunt? I'll bet he would. Unfortunately, the KISS makeup that would suit him best would be a big ol' Maple leaf over one eye, and he definitely wouldn't do that. 

I don't play the lottery. I don't really gamble at all-- I haven't dropped a quarter in a slot the last three times I've been to Las Vegas (where I go because I have meetings there-- the whole place makes me squirm). However, A. asked me to buy a PowerBall ticket so I did, and I have to admit that for two days I found myself lapsing into the sort of wishful reverie that the marks who play lotteries live in all the time. I didn't like it-- it is the same sort of wishful thinking that moves people to believe in hexes and hoodoos and every other kind of supernatural thinking, and it irritated me that I kept having to shake it off. Oh, and I didn't get a single number.

Something I lose track of when I'm thinking about popular music is that it is supposed to be popular. I'm not alone in this-- probably most music critics fall into the trap of disdaining mere Pop for something that seems more ambitious. As I sit here writing and listening to Tin Machine I'm thinking that David Bowie had something more ambitious in mind for his work, and although I didn't always -- or even usually-- connect with it, now, at the end, I think we have to concede that anyone interested in late 20th Century culture would have to stipulate that Bowie was a important contributor. If you love rock and roll you probably have to have more than one Bowie record on your shelves. For me the essential Bowie sides are Hunky Dory-- in which he staked out his position on the outside; Station to Station-- maybe his best guitar album; and Low. which is simply fantastic Euro-noir. Here's the thing though-- my taste in David Bowie records and your taste in same are largely irrelevant because in his uniquely weird way he made music that managed to as nearly universally popular as it may have been possible to have made in his time. He was undeniable. Singing "Drummer Boy" with Bing Crosby, the whole Ziggy Stardust thing, all of it.

In the Buffalo News Jeff Miers wrote that the nearest cultural figure to Bowie was Miles Davis, which is, unfortunately, the sort of hyperbole that actually diminishes the artist being praised. Davis was always ahead of the pack, an innovator. One of the reasons that I was never a devoted David Bowie fan is that at any given moment, at any particular phase of his artistic career, it always seemed to me that there were other artists that had arrived where Bowie was just a little bit ahead of him, so that he tended to appear to me as more of a reflection of what was happening in popular music than an actual inventor. The expression "chameleon-like" has always seemed to me more apt-- like the changeable lizard Bowie became the color of his background. If Marc Bolin was outrageous and glittery, Bowie was moreso; if funk was what was called for David would funk it up.  Low is as good an Eno album as Taking Tiger Mountain (By Strategy), and so on. There is nothing wrong with that-- the argument can be made that this is exactly what great artists do-- they embody the zeitgeist. Bowie's greatness was not that he was an innovator-- although he was certainly an original character himself. I would say that what made him important was that he allowed so many people to be themselves. It always struck me as strange that a rock star whose most memorable personae was that of a homosexual outer space alien could be so very nearly universally popular, not just with the oddballs and the alienated, the kids who were gay and terrified, but with the lunkheads as well. I'd be willing to bet that there wasn't a frat house in the United States that didn't have a copy of Ziggy Stardust in it, and that's a great thing. In a real sense we live in a world that is more accepting today because the lunkheads in the DKE House partied down to "Suffragette City", right along with the kids who were in the school play. That's pretty great-- David Bowie let a lot of people who felt like outsiders feel like being different was cool, and he bought some respect for those people because David Bowie was cool.

A final observation: driving into work today I thought I'd like to hear a little more Bowie. The Digital Millennium Copyright Act apparently means that satellite radio couldn't just play a ton of it, so I jacked my phone in and told Siri, "Play David Bowie songs." What I got was Blackstar, his final album, in its entirety. Pretty good record, but that's not my point. My point is that the decision to make David Bowie's valedictory the music that Apple will play if you make that request was not a decision made by an artificial intelligence. Good for whoever it was at Apple who made that call.

Had my first law school class of the term last night. I'm not sure how long I've been doing it now-- the case I use for the first session is from 2007, so I probably started a year or so later, since one of my rules is that I do not use actions which are active. In years past I have used exclusively tort cases, on the theory that all of the students are familiar with tort concepts, and that the basic skills and the basic rules of discovery are the same regardless of the type of dispute. Now I am beginning to wonder if those principles are going to hold up. First of all, I have long suspected that I will be lucky if I outlive the tort system as it presently operates in the US. It is not sustainable in its current form, and as Sam Cooke has told us, a change is going to come.

The other issue is that discovery practice in the commercial realm has changed radically, morphing towards something that much more closely resembles the model of the Federal Rules. This makes a good deal of sense, I think. The goal of discovery is, ultimately, to aide in the efficient resolution of disputes, but a look at the annotations to CPLR § 3101 tells a different story: discovery is actually a separate battlefield a great deal of the time, a tactic, or set of tactics used to thwart resolution on the merits, or at least to hold it at bay until conditions for one or the other party become more favorable. 

So, yeah. we have a lot to talk about.

Here's an interesting situation: the Pennsylvania Attorney General, Kathleen Kane, is presently facing "a criminal indictment for felony perjury and multiple misdemeanors in an unrelated case for allegedly leaking grand jury information to embarrass a political rival and then lying about it under oath." The material in question came to light as a result of the investigation of a special prosecutor appointed by General Kane to look into the way the Jerry Sandusky prosecution was handled by her predecessor.The investigation "uncovered a trove of inappropriate emails" between and among sitting judges, prosecutors and others, and so far at least six state employees have been canned,  and a a state Supreme Court judge has resigned. Bruce Ledewitz, associate dean of academic affairs and a law professor at Duquesne University School of Law is quoted in the linked piece as saying that the emails give "the impression that every white male office holder in the state is a creep.”

There are several notable things about this story, I'd say. One is that the kind of stuff that the emails contain is purile material which should be beneath most sniggering sixth graders. Another is that here we are, sixteen years into the 21st century, and people are still putting stuff like this in emails?