Outside Counsel

Over at Big Pink I am somewhat surprised that I am cast in the role of HRC defender, so I decided to have a look back and see what I have said about the Democratic nominee in the past. I pretty much stand by all of it, I think. I was (and remain) angry about the Iraq War vote, but have been otherwise generally in her corner. Looking it all over I'd say I have been mostly right about Hillary Clinton, and won't have to strain my back trying to square where I am with where I've been.

I also note that I have made the same quip about ol' Bill way too many times. I'll not be trotting that one out again.

I've seen Blue Öyster Cult enough over the years for the conclusion to be obvious: they are one of my all-time favorite bands. I saw them when they were Soft White Underbelly, and I've seen them every time they've come through Buffalo in recent years, but I missed them when they were an arena act, which I regret. Now Sandy Pearlman the band's, producer, manager, and lyricist- one of the great rock and roll impresarios-- has died.

You may think of BÖC as a joke, and that would be understandable-- they work has a distinct sense of humor. I would put it to you that Buck Dharma and the boys were all in on it with Pearlman, and I would suggest that Pearlman's work with The Clash demonstrates that his sensibility was pure rock and roll. 

I've met Kevin Gaughan a few times; he has generally impressed me as being sort of a combination of well-intentioned goofball and cartoon character egoist. As a gadfly I suppose he has had some success. Here is Bruce Jackson's take on his latest proposal, which is typically half-baked and self aggrandizing. Here is Gaughan's website, which is notable for not mentioning what he does for a living. (He is some kind of a lawyer.) His big idea is reducing the size of government by eliminating the number of representatives and the various tiers, i.e. villages, towns, cities, in favor of regional governance. There is something to that idea, but mostly it impresses me as a way of making government less accessible, and less responsive.

A long, civil FB exchange with a mild-mannered HS acquaintance who I haven't spoken with since HS has me reflecting once again over the reality of persuasive discourse. Simply put, there really isn't such a thing: people will believe what they want to believe, and actual facts will not dissuade them.

FB is a funny place for pretty much that reason. It is amazing to me how many people I once knew seem to have ended up in a place that's so different from where I am. I suppose I might flatter myself and think that this might be because where I am is part of an ongoing process of critical evaluation, but I suppose it is equally likely that I have always been contrarian by nature. "If you would learn to praise the king, you wouldn't have to eat lentils."  "If you would learn to eat lentils," Diogenes replied, "You wouldn't have to praise the king".

In theory I should like Kendra Shank just fine, but the reality is that I go from "that was okay" to "that was actually embarrassing" with her. Ms. Shank's new one is a duo with Geoff Keezer on piano, and since I like Keezer a great deal I reckoned I'd give it a try. It's the whooping sounds she makes that I mostly don't like, but there's also the fact that I don't really get the feeling that the words she sings mean anything more to her than the whoops. Keezer's good though.

When the dust settles it will be interesting to look at what this year's Presidential campaign tells us about money in politics. I've been thinking  for a while that Sanders' argument was self-refuting: he raised a ton of dough, and although he made it interesting he still lost. On the other hand, Trump seems to have raised only a fraction of what his opponents brought in, and it seems unlikely that he will be the sort of fundraising juggernaut that Mittens was.

I should also reference this useful thread as well. Real Estate developers always use as little of their own money as possible, and this, of course, turns the usual model of campaign fundraising on its head. What a developer essentially does is to assemble investors to acquire a mortgage on a piece of property. With that in hand the developer seeks out other investors to put something on the property-- in the case of, oh, say Gates Circle, maybe the YMCA, or maybe it's enough to just say the Y. "I'm self-funding" is a scam, and the fact that he hasn't been called out on this is rather shocking.

I couldn't bring myself to listen to much of it, but I recognized what I was hearing: this is sheer existential panic. The Republican Party is looking into the void and saying, "Might as well jump". Who knows what they'll find at the bottom? The ones that stayed at home- Lindsey Graham, the Bush mafia, and all the rest can pretend that they had no hand in this, but they will be staring into the crater when it is all over, and bet your life on it, some of them will jump too, just to see what's down there.

For me the highlight was probably Rudy Giuliani, who has been living at the bottom of the pit for some time now.  Rudy has been insane for so long it is a miracle that he isn't restrained. But he is also the embodiment of the world view the Republican Party has embraced. He is literally "A noun, a verb and 9/11"- there is no more substance to him, no meat on his bones, or blood in his veins. He is the hot breath of fear, and nothing else.

Steven Hyden is writing a book about "classic rock".

It’s interesting because you have oldies, which in the traditional sense meant like mid-50s to mid-60s. The dividing line between classic rock and oldies would be Sgt. Pepper’s Lonely Hearts Club Band. I remember growing up that the oldies stations would play Beatles up until Sgt. Peppers, and the classic rock stations everything after. What we have to recognize immediately with this is that it’s a format made up by radio programmers. It’s not a real genre. It was made up to reach a certain group of people: white men between the ages of such and such. For me, I’m going to try and pin it down to a more specific definition. I don’t want to get too much into that as I’m still trying to figure it out. But for me, classic rock begins with Sgt. Peppers and ends with an album in the late 90s that I’m not going to name yet. I’ve picked a specific album I’ve decided was the last classic rock album.

It seems to me that one way to define the end of the "classic rock" period would be to ask, what was the last mega-selling rock LP? I'm honestly not sure what the last vinyl rock record I bought was-- before, I mean, moving to CD. I still occasionally buy vinyl, but you can track the shift in my taste from rock to jazz pretty accurately by looking at what predominates in which format on my shelves. One candidate for the last classic might be 1984's Born in the USA, but I think maybe my record collection moved from LP to CD with They Might Me Giant's 1990 Flood.

There is a school of thought which holds that changes in technology necessitate changes in the law, but I'm not so sure I agree with that. Perhaps the best illustration is e-discovery. When email and word processing became ubiquitous there was a great deal of effort spent wrestling with how parties and courts should deal with the discovery of email strings and word processing metadata, and related issues. To be sure, these were new questions, but at the core of the discussion were two questions. The first was whether this sort of thing should be discoverable; and the second was how the costs associated with electronic discovery should be dealt with. It seemed to me at the time (and it still does) that existing statutory schemes were adequate to answer these questions. The theory of discovery as it has evolved over the past 50 or so years is that a thing is discoverable if it is relevant to the dispute, or apt to lead to relevant information. If that seems broad brush, well, it's supposed to. The whole idea of discovery is that if both sides have the same information both sides are better able to make reasonable economic decisions. ("Of course, the whole point of a Doomsday Machine is lost, if you keep it a secret! Why didn't you tell the world, EH?") It would seem obvious that whether a record is kept on paper, or electronically is irrelevant to whether it is relevant or likely to lead to relevant information, but people still fight about it--  see, e.g., Gilbert v. Highland Hospital __AD3d__, 31 N.Y.S.3d 397 (4th Dept. 2016) is a March decision which involved the discoverability of the electronic audit trail of the plaintiff's decedent's medical records. (HT David Paul Horowitz, who featured Gilbert in this month's "Burden of Proof" column in the New York Bar Association Journal.)

Of course, the larger dispute was always about money. Because electronic materials tend to be -- well, vast is probably not an overstatement-- and because retrieving this materials can require greater technical expertise than merely pulling a manila folder and photocopying its contents, there has been some significant cost associated with producing e-material. You gotta pay the tech guy, and then there is more than usual lawyer time spent reviewing the material, presumably to determine if some privilege attaches to it. An added complicated factor is that judges are not uncommonly the least tech-savvy people in the room when these matters are argued, which means that there is an increased risk of the judge screwing up.

Somehow, however, the law worked itself out. We have US District Court Shira Scheindlin to thank for Zubulake v. UBS Warburg, and I would have left it at that-- my theory about statutes is that they should be kept simple, but the Federal Rules and all of the state court rules of discovery with which I am familiar had to go and be amended to accommodate our brave new world.

I was reminded about this when I came across this article about Space Law. To the extent that public international law is chiefly a matter of norms and treaties it seems to me that our traditional ways of dealing with the issues that are raised above the stratosphere should be adequate -- at least until the Visitors arrive.

I have a theory that the Republican Presidents after Nixon were all fronts or stooges for more sinister forces. One of the things that is fascinating about Trump is that he doesn't fit this model. Another thing that is interesting about Trump is that people take him seriously. I mean, Ronald Reagan was improbable ( for me he is still defined by Jack Warner's quip, "Jimmy Stewart for Governor. Ronald Reagan for best friend."), but he was actually governor of the largest state in the Union. Donald Trump is the star of a reality TV show.

For reasons that don't bear going into I found myself obliged to locate the physical whereabouts of a person. He hadn't responded to phone calls or texts or emails, and the matter was time sensitive, so I did a little digging, located his home address, and told A I was going to pay him a visit. "You are going to get arrested," she said, "And when you do, I won't bail you out."

"If I get arrested I will call you," I said. "And you can come and get the car."

When I got to the address it was locked down pretty tight, so I left a note and returned home. A. looked at me with a mix of exasperation and curiosity.

"The bottom of the soap in the shower was still moist. I used a fork I found by the sink to probe the flour and the sugar canisters. The freezer just had ice cube trays; the only produce in the refrigerator was a head of broccoli. No milk, no dairy, nothing with a sell-by."

Without missing a beat she replied, "Her clothes were on a chair where she'd dumped them-- hat and coat underneath. Her slip on top was still warm. She had wrinkled up the bed but the wrinkles weren't mashed down."

Lately A has been listening to BBC Overnight to lull herself to sleep. One of the things I like about this is that the journalists conduct actual serious interviews with actual serious policy questions backed by actual serious data. Last night, for example, the Minister of Finance for Zimbabwe was being interviewed. He was good at talking over the reporter, and pretty good at obfuscating, but she had him dead to rights, and was good at follow-up. In the morning NPR snaps on, and it is back to stupidness, like the commentary of Cokie Roberts. There is no analysis in political reportage from people like that, and I find that vexing. The polls they cite are horse race journalism, and their idea of shoe leather reporting is to take a taxi somewhere and ask the driver what he makes of it all. There was a time when it was reasonable to expect more from NPR.

Cushman & Wakefield's list of the 100 Coolest Streets in America. Yeah, Elmwood is on it, are you kidding?

My recent adventures in land use and zoning issues (don't ask) have made me more attuned to what makes a city neighborhood work. I am also sensitive to the ways in which poor planning can wreck an urban environment. Elmwood has never had many chain stores-- there's a Starbucks, and there used to be a Blockbuster Video and for a long time that was it. Now there is a Panera Bread shop, and across the street, in what is universally called "the new, ugly building" there is a Jimmy Johns. Walking down the street Saturday A and I noted that there was nobody in the Jimmy Johns shop, but that the tables were full at the small, locally owned Globe Market next door. In fact, I have never seen anyone in the Jimmy Johns. This troubles me. If the Jimmy Johns collapses, what will fill that space? In days of yore some sort of cool retail might go in there, but I'm not so sure that the rent wouldn't price something like that off the market. We are in an unusual situation in Buffalo-- at least, for Buffalo. Things are being built, and real estate is booming, but I wonder how sustainable it all is. Regrettably, the governmental institutions charged with regulating this sort of thing are giddy over the prospect of developers' money coming into the city, and are not inclined to say no to much, if anything. As I frequently tell people, when we moved to Buffalo my stipulation with A was that I had to be able to walk to the corner to buy a newspaper, and Elmwood has always been able to do that for me-- but when we moved there it wasn't making any national lists of cool streets. It became what it is today by being small and by hosting local businesses, and local attractions.