Outside Counsel

George Mason University is renaming its law school for Antonin Scalia. George Mason is different from other kook law schools, like Oral Roberts (which gave us Michelle Bachmann), or Regent (remember Monica Goodling?), or Pepperdine (where Ken Starr was Dean) Mason seemed to me to be kind of a legit operation, even though its faculty are largely right wing nuts who yearn for the return of the Lochner doctrine. Well, no more. In addition to renaming itself after arguably the worst Supreme Court justice of my lifetime the folks at Mason are also naming a scholarship for F.A. Hayek. I assume they already have an endowed chair named for Ayn Rand. Sweet Jeebus, is the place run by a bunch of unpopular 14 year old boys?

A very satisfying weekend featuring daughters and friends with a Joan Baez concert thrown in for good measure. It occurred to me as I sat listening to Ms. Baez that the best way for me to think of what she does is as being an authentically engaged person with a great voice and great taste in material. Her voice remains lovely-- she has lost some upper range, but this is compensated by a depth and warmth that makes her singing less show-offy.

Oh, and "Diamonds and Rust" is as mean a kiss-off song as anybody ever wrote.

Back in law school we had a professor who was one of those intellectual high wire performers that dazzle you with their brilliance. This particular cat was also, I think, one of the more arrogant academics I have encountered, and it was this quality that ultimately brought him down. I recently ran across what appears to be an old website of his, which features a lengthy monograph on the concept of judicial balancing, in which it appears that he is arguing that the process of weighing interests that courts purport to engage in is actually a sort of elaborate fiction that is employed in order to rationalize outcomes. That may be true, but it seems to me that there is a larger question that is presented when courts engage in this process, and I have been thinking about this in the context of what I have been reading about Zubik v. Burwell. The chief concern seems to be that this four-four Supreme Court will split along ideological lines because that's just how it works: there are no real jurisprudential principles in constitutional law, and the arguments and opinions that the lawyers make and the justices write are chiefly pretextual rest stops along the way to an outcome that is determined by the ideological beliefs of the panel.

It's funny how it goes; sometimes you are in rotation with someone and encounter them more frequently than you'd think random chance might allow for. When we were Mets' ticket holders we were often privileged to see Sid Fernandez work, for example, and for reasons known only to the cosmos I think I have been before Judge Shira Scheindlin in the Southern District of New York more than any other sitting judge on that bench. She is retiring now, and I hope she enjoys doing whatever she is going to do now as much as she seemed to enjoy being a judge. She was a really good judge.

Excellent piece on eyewitness testimony by Florina Altschiler in today's New York Law Journal. Florina and I have been invited to teach a section each of Trial Technique at Buffalo State this coming fall, and I am really excited about working with her.

I love it when the band members look like they are having fun, and Honey Lantree looks like she is having the most fun of all.

Here's a Must To Avoid: Eric Clapton –The Studio Album Collection (1970-1981). It's an eight disc collection that runs from Layla and Other Assorted Love Songs through Another Ticket. Let me break it down for you: Layla is essential. If you somehow don't own a copy, get a copy. 461 Ocean Blvd. has some nice moments, although it also features Clapton's cover of "I Shot the Sheriff" which has been unnecessary for almost as long as it has been in existence. You can probably find a cheap used copy if you are interested. I have never seen a copy of  There's One in Every Crowd that didn't have the notch cut in the top corner indicating that it was a cut-out. Those of us who payed the buck ninety-nine felt like we got burned, and we were right. No Reason to Cry features a Bob Dylan song that is otherwise unavailable. It is a terrible Bob Dylan song, and your life will be no less complete and satisfying if you never hear it. Trust be on this one: you won't be able to un-hear it. As for the rest, if you want a J.J. Cale album, buy a J.J. Cale album.

For reasons that don't bear going into (but which are probably not the reasons you might assume) I found myself on a bit of a reggae jag over the past week or so. Most of my reggae sides are on vinyl, and I have a collection that is pretty diverse for a white guy, I'd say. Generally I acquired it by following the black guys with dreads at J&R, picking up artists that they'd flip through, although my brothers' influence as a scholar of the African diaspora is also pretty evident. One of the things that I discovered that I remembered is that English reggae bands tend to be not quite what I am looking for-- Steel Pulse, to take one example, is okay, but a half bubble away from the Burning Spear stuff that hits exactly the right spot. I am reminded of this because at the moment I am listening to the Paul Butterfield Blues Band and thinking that Butterfield is to John Mayall as The Heptones are to UB40. And none of them are Howlin' Wolf or Lee "Scratch" Perry.

I wouldn't say that Sir George Martin's contributions were ever overlooked, but there are so many of them that it is mindblowing:

Be it a third-verse addition of handclaps or a change-up from off-beat to on-every-eighth shaking of the tambourine for a song's coda, the m.o. here was a subtle but profound one — to add to or alter a track's layering as it proceeds, thus negating, sometimes on a subliminal level, the prospect of the listener experience growing stale or predictable.

 Credit where it is due, Jeff Miers gets it right in his Buffalo News piece:

His desire for rational harmonic order meshed with McCartney’s similar tendencies, and tethered Lennon’s penchant for raw experimentalism, which is why songs like “Tomorrow Never Knows,” “A Day in the Life” and “Strawberry Fields Forever” are masterworks, and the Rolling Stones’ contemporaneous “Their Satanic Majesties Request” sounds like the work of a bunch of acid-heads run amok in the recording studio.

And I love this, about the orchestration on "A Day In the Life": 

Mr. Martin’s solution was to take a page out of the playbooks of classical composers like John Cage and Krzysztof Penderecki, who at the time were creating works in which chance played a role. Mr. Martin hired 40 symphonic musicians for a session on Feb. 10, and when they turned up, they found on their stands a 24-bar score that had the lowest notes on their instruments in the first bar, and an E major chord in the last. Between them, the musicians were instructed to slide slowly from their lowest to highest notes, taking care not to move at the same pace as the musicians around them.

13 albums and 22 singles with Beatles: less than 10 hours of music, and it changed the world.

The fate of the Maltese Falcon remains a mystery to this day.

I'm not so sure that the Republican Party is actually splintering: it seems to me more likely that whoever the Presidential nominee turns out to be will line up basically the same support that McCain and Mittens did, and that local and statewide organizations will operate to re-elect Republican incumbents. I suppose that's the stasis theory of American politics. I see very little difference in the ideology of any of the characters that have been in the mix for the nomination, and the chief difference between those candidates and the incumbent governors, senators and representatives seems to me to be that most of the incumbents are where they want to be  presently, doing what they want to do, while Cruz, Trump and the rest want to do the same stuff, but from the Presidency. That said, it does seem to me that the Republican Party is closer than it has ever been to becoming a permanent minority party in Presidential politics, and only the Electoral College is propping it up.

In running they say that you never know how it's going to go until you've gone the first mile, and I think the same is true with trying cases. Some days it's there, and some days it's not. Today it was there, but we settled before we sat the first juror.

Interesting: there is still time for Mittens to get on the primary ballot in NY

I've been trying to come up with a historical equivalent to what is going on in the Republican Party right now, and I think I have it. The last time a major party Presidential candidate was this loathed by the party establishment was 1964: Goldwater vs. Rockefeller. There are, of course, some important distinctions. For openers, back in '64 the process was not driven by primaries (and caucuses) in anything like the way it is today, for example.  AuH2O was the ideologue/Rocky was the "pragmatic" choice. Goldwater was in at least some sense the candidate of the disaffected and the "electable" candidates, who also included Scranton were far more mainstream. In this weird historical alternate universe the part of Mitt Romney was played by Richard Nixon. In some ways the political lines that were drawn in '64 still exist in a weird trench war in which gigantic losses are sustained to advance or retreat a foot or so at a time.

It came to me as I was preparing for last night's ConLaw class. I think the model I devised for this class is working out pretty well. What we are doing is spending a session or two working our way through each Article of the Constitution, followed by a lecture parsing a few important cases. I'm using PowerPoint, which I am ordinarily loath to do, and I am not having them read the cases we discuss in class independently-- we work through them together. So, for example, for Article I we focused on McCullough v. Maryland. Last night was spent on Youngstown Tube. After we have worked through the illustrative cases I assign a more or less contemporary case and have them write a short paper. For Article I they wrote about National Federation of Independent Business v. Sebelius. This week they are going to read and write about Hamdan v. Rumsfeld. My thinking is that just throwing case law at the students would encourage a reductive analytical process. I don't want the students to read these decisions with a view towards trying to tease out a holding-- I want them to see where in the Constitution the issue being addressed comes from, and to track the reasoning that leads the court to the its conclusion. As a Legal Realist I also want them to see that outcomes matter almost as much as the process, and that cases are decided on factually specific circumstances.

One of the things that I am noticing as I prepare for class is how much of my own Constitutional Law analytical model was formed by the Nixon years. Of course, part of that is that a goodly portion of my Constitutional Law analytical model comes from Lawrence Tribe's American Constitutional Law, which I am now coming to realize is sort of the Frampton Comes Alive of constitutional jurisprudence for lawyers my age.

I just learned, via a comment here on Outside Counsel that Elinore Klein has died, and I am very sad to receive this news. Ms. Klein taught me how to be a good lawyer, and I doubt that there has been a two day stretch since I left her employ to move to Buffalo when I haven't thought of her, or used something she showed me how to do.

A while back I wrote a letter to the Buffalo News objecting to the fact that the two major political parties had failed to cross-endorse two sitting judges. Both of the judges were therefore obliged to raise money and campaign. Now, I hate judicial elections, as is pretty well established here, but local tradition had long been that sitting judges got cross-endorsed, and these judges happened to be two of the best on the bench, so I had no hesitation in indulging my letter-to-the-editor hobby. Good thing it turns out this was ethical.