Outside Counsel

It really doesn't make any difference that Sir Elton John has declined to perform at the inauguration: Trump is going to tell us that Elton blew the roof off and nearly half the country will believe it. The real question is who will actually perform? Ted Nugent will be there, if he doesn't get a Cabinet appointment. Kid Rock is exactly the sort of celebrity that suits Trump: a raving mediocrity who Trump can boss around. I think a reunited Pink Floyd might bring the proper apocalyptic vibe, but I understand they aren't getting along with each other. It's a tricky question: most rock acts have too fine a sense of irony to accept the invitation. Of course, the overtly racist might go for it: some version of Lynyrd Skynyrd would probably be honored.

To Wooster College Friday for the American Moot Court Association's Regional Tournament. Buffalo State has entered teams for the past four years, but two years ago we were snowed in. Last year was the first time I went with the team. We've been cannon fodder in the past, but this year we made it out of the preliminary rounds and into the Sweet 16- the furthest a Buff State team has gone. Mad props to the students, who worked damn hard and got better every time they stood up. I feel like we cracked the code on this thing, and it is interesting. In the legal culture I practice in appellate argument is always before a hot bench: typically I get my name out, and then the questions start. This is how we've been preparing our students, (and how I preside as a moot court judge) but when I watched the Ohio lawyers preside in the knock-out round what I saw was that they wouldn't ask the first question until the arguments were two or even three minutes in. They also seemed to put a great deal of weight on the etiquette of the process, something that we'd drilled on extensively. In other words, the emphasis was more on moot court style than on actual legal substance, although, in fairness, the legal arguments have to be solid in order to get anywhere. They announce what schools will advance in a large lecture hall at the conclusion of the first three rounds. When they announced the bottom seed I thought, "Well, that's that," but we were, it turned out, a middle seed, and when they called our name I was indecorous and let out a whoop. Most of the schools competing bring several teams, and most of those teams are composed of students for whom appellate advocacy is course offered for credit, in addition to an extra curricular activity. Their students have done this thing many times, and although they are keyed up they aren't actually nervous in the way that you'd think of being nervous. A lot of what our coaching consists of is getting our students used to standing up and thinking on their feet, and in order to get there they need to be used to conducting a high level intellectual conversation without being intimidated. It is a fairly rarefied and esoteric skill, and our Buffalo State students were on it. I'm incredibly proud of them.

“I’m not saying there was a conspiracy, but if one wanted to upend the whole system, it would be foolish to do a full-frontal attack. Instead, go after a technical rule that’s so boring I don’t even teach it to my civil procedure class, but which affects everything.”

As it happens I was talking about this with A. just the other night. The rule that is referenced in the above quotation, from Elon University School of Law professor Eric Fink, is the rule pertaining to pretrial discovery in federal court. As it happens, this is my chief area of academic interest, which may be why I am not a full-time academic. Nobody thinks discovery is particularly interesting, except me, and actual practicing lawyers. Law professors will frequently say, "I used to be a litigator," and to the extent that this is true what they typically mean is that after they did a year or so as a judicial clerk they worked in a large firm reviewing material received in discovery and drafting discovery demands. This is jolly boring work, particularly in the sort of commercial litigation that large firms usually do, and after a few years of this these lawyers-- who really are intelligent persons, and graduated at the tops of their classes, and never in a million years thought that reviewing reams of emails was what their lives in our glamor profession would consist of-- chuck it over and, if they are lucky, become academics. If they teach civil procedure, which most people find painfully dull, they gravitate towards the most intellectually interesting aspect of civil procedure, which is the scope and power of federal court jurisdiction. To the extent that they think about discovery at all what they think is that the basic principle of discovery is to give it up. They are kind of right: the core rule of discovery is that the parties must disclose all relevant information, or information which might lead to relevant information, but it is a lot more nuanced than that, and it is, I think, an overlooked subject. For a brief moment there was a flurry of academic interest in so-called "e-discovery", but that moment has largely passed.

Artists that belong in the Rock and Roll Hall of Fame. I endorse this list.

Jonathan Chiat:

The Bush administration cratered because it was filled with hacks, ideologues, and business cronies and led by a mental lightweight. Many people believed that for the Republican Party to recover, it would have to develop a governing class that grasped science and evidence. It is safe to say that this has not exactly transpired. The Trump administration will make the last failed Republican presidency look like an age of reason.

I really can't get my head around the naked anti-intellectualism of this election. I am also dumbfounded that so many people apparently don't recall what happened the last time we elected a nitwit surrounded by gonifs. And hey, news media: stop acting so surprised. You had a big hand in normalizing Trump, and in demonizing Hillary Clinton.

Leonard Cohen was never an artist that I really ever got, but losing him just now stings. Leon Russell, on the other hand, was white boy soul in the most authentic way, and I'm glad I had a chance to see him play.

I said I'm staying off social media for a while, but I guess what I mean is Facebook. I have also said that I am not going to talk about the election-- for a while, but I will say this: when I was an undergraduate I interned for the Senate Judiciary Committee's Subcommittee on the Constitution, which was chaired at the time by Birch Bayh. The big project the Subcommittee was working on back then was an amendment to abolish the Electoral College, so I can honestly say that for very nearly as long as I have been able to vote I have advocated for direct election of the President. Back then the last time the Electoral College result departed from the popular vote was the Tilden-Hayes election of 1876. By the time I got to the Subcommittee the hearings had been had and one of my tasks was to familiarize myself with the testimony, which consisted largely of social scientists and historians discussing how the system was designed, and how it works. It was pretty much a given that a disparity between the popular vote and the Electoral College outcome would represent a constitutional crisis, but it many of these experts also thought that this sort of thing was unlikely. In fact, a lot of political scientists thought that the Electoral College actually served to amplify the popular vote, and that this was a feature which allowed the incoming President to point to greater support, which in turn operated to mitigate partisanship. Well, now we see how that turned out. As Steve Goodman observed in "A Dying Cub Fan's Last Request", "The Law of Averages tells us that anything that can happen, will", and now, for the second time in twenty years (and damn near the third time) we have seen what this profoundly anti-democratic system does. It has never operated to the national benefit, and we now see that actually operates to bring about results which, in addition to being profoundly undemocratic, are precisely the opposite of what Alexander Hamilton, James Madison and the rest would have wished for.

Number 100 at 8:45 at my polling place. Next district over had already cracked 300. The atmosphere was giddy

Here's my map

I wish I knew more about British constitutional law, but it has always seemed to me that Brexit would have to have Parliamentary approval. It's a treaty-- don't treaties have to be approved by Parliament? (Also,Lord Chief Justice, Lord Thomas of Cwmgiedd. "Uhm, I'd like to buy a vowel?")

Okay, here's a story with Bob Dylan, Norman Mailer, Lillian Hellman, and Patti Smith. And a few others. Pretty cool

I have no great love for cops generally, but my goodness gracious, when you think about it the FBI has pretty much always been especially terrible.