Outside Counsel

My friend Lisa Sommer Devlin represented one of these executed men, and shared a piece of bacon
from his last meal with him. The whole story is interesting, but it's hers, so I won't tell it here. Instead I will note that for all its frustrations our glamour profession sometimes offers us opportunities to confront our humanity that can be unique if we are open to them. I can't say if these opportunities make the practice of law worth it, but they are there. As I reflected on the shared piece of bacon this morning I was reminded of the times I've sat in on criminal proceedings and considered how extremely precarious our lives are, and how we are mostly oblivious to this. In my daily practice I am frequently reminded of the Flintcraft Parable, from The Maltese Falcon, a terse little diversion that isn't in the 1941movie, but may be my favorite part of the novel.
There are a number of different ways to understand Flintcraft. There is, first of all the question of why Spade tells the story to O’Shaughnessy in the first place; and of course there is the question of what the take-away is supposed to be. Is Spade telling us that life is uncertain? That people are chiefly creatures of habit who live inauthentically? ("I don’t think he even knew he had settled back naturally in the same groove he had jumped out of in Tacoma. But that’s the part of it I always liked. He adjusted himself to beams falling, and then no more of them fell, and he adjusted himself to them not falling.”) I think about the things I've done that turned out one way and could have turned out differently just as easily; I think about friends who, by virtue of their race, or age, or sex ended up having their parents pick them up at the police station instead of spending the night in a holding cell, or being arraigned, or entering a guilty plea to something they didn't understand, and how their paths would have been different from where they ended up. We are all, always, a lot closer to sharing a piece of bacon with our lawyer-- maybe the last soul on the planet who recognizes our fundamental humanity than we ever care to think about. Every day is a close call, and if we pretend it isn't we are denying ourselves a view of our own humanity.

A puff of white smoke from a window at O'Brian Hall, and... UB Law has a new dean! This is very nice, because it took an ungodly amount of time during which all sorts of laundry was hung out, including the story which broke on Sunday about how one of the five finalists was just indicted for embezzlement. 

Here's my question: if you are the press contact for the University at Buffalo School of Law and the Buffalo News calls you to ask about the indictment that's just been handed down how do you not say, "Listen, we are about to announce our new dean. I'll tell you who it is now, if you'll sleep on the other story for a week."? In a week the indictment story becomes a non-story, and the reputation of the law school avoids another nick. 

I understand why there are Hold Steady albums and Craig Finn solo albums-- what surprises me is that I really like both. The new Craig Finn is pretty great.

Now that the first major legislative initiative of the Trump Administration has gone down in flames the concern I have is how the narrative will shift in the media. Paul Ryan was the person who got singed the worst in this I think. One way to tell this story is that Trump, the master dealmaker, the closer, discovered that politics ain't beanbag, and another is that Ryan, the policy wonk didn't know how to count votes. The way I see it going is that in the short term Trump will be mocked, because he is already being mocked. This is a thing that happens in Washington when someone unfamiliar with the folkways of Georgetown arrives and announces that there's a new sheriff. I have noted elsewhere that the chief difference between this Worst President Ever and the last one is that Bush fils had a capable Regent. Mike Pence is no Dick Cheney, but Trump's larger problem is that he has made no effort to court Permanent Washington. He has made an enemy of the press, and has assumed that Twitter, which worked so well for him in his campaign, would allow him to bypass the media. #Sad. Congresspersons and their staff don't hang on his Tweets-- they have constituencies, and with a few exceptions, such as the odious Chris Collins, they feel as though they are obliged to be responsive to those constituencies. As I see it, in the absence of a crisis-- an outside crisis, I mean, not something self-inflicted, Trump's narrative is cast. He is going to be portrayed as a blowhard and a buffoon. This is pretty easy to do, as those of us who remember him from the 80's know-- he is a blowhard and a buffoon, with no real negotiating chops, and less of a notion about policy or governance.

Ryan seems to have lost touch with the realities of the rank and file, but he is, for whatever reason, favored by the media, at least to some extent. He has been anointed as a policy wonk, which is a term of respect in the sphere in which he operates. He is thought to be the sort of politician who sees the big picture, who has an overall vision of how government should be structured. I'm concerned that the Ryan narrative may turn on the question, "Can Ryan Recover?" To ask the question is to answer it. If Paul Ryan actually went back to Janesville and announced his retirement the media would be denied the comeback story that it would prefer, so of course he can recover. He'll be Speaker next year, going into the midterms, and after that the stories that will be written about him will be about how he was able to lead his people through the stormy early days of  the Trump Administration. Any small win he can pick up along the way will feed into this narrative, so the key right now is to do everything possible to keep those small wins away from him.

Conspicuous in its absence for the moment are the Democrats, although this is subject to change. Chuck Schumer's preference is to do things. Unlike Trump he really does know how to negotiate and cut deals, and that's what he prefers to do. Nevertheless, he is up on the Gorsuch nomination, which is important. As I have noted elsewhere, there are three possible outcomes on this. The most likely is that Gorsuch is approved by the Senate. That's bad, but if it busts the filibuster I see good coming from it. It must be hard for Schumer to oppose the Gorsuch nomination knowing that it may come at the cost of a tool for obstruction, but in the long term this  will be a favorable, democratic development. There are ample veto points in the overall structure of American government. Through its history the filibuster has been a reactionary device which has only rarely accomplished any good. The third possible outcome? As Mario Cuomo used to say, Who knows? The horse may talk. Right now the narrative has turned in the Democrats' favor. They aren't being obstructionist-- the Republicans are being incompetent. This is a very good thing.

Never think for a minute that Bob Dylan doesn't know exactly what he is doing.

[T]here’s always some precedent – most everything is a knockoff of something else. You could have some monstrous vision, or a perplexing idea that you can’t quite get down, can’t handle the theme. But then you’ll see a newspaper clipping or a billboard sign, or a paragraph from an old Dickens novel, or you’ll hear some line from another song, or something you might overhear somebody say just might be something in your mind that you didn’t know you remembered. That will give you the point of approach and specific details. It’s like you’re sleepwalking, not searching or seeking; things are transmitted to you. It’s as if you were looking at something far off and now you’re standing in the middle of it. Once you get the idea, everything you see, read, taste or smell becomes an allusion to it. It’s the art of transforming things. You don’t really serve art, art serves you and it’s only an expression of life anyway; it’s not real life. It’s tricky, you have to have the right touch and integrity or you could end up with something stupid. Michelangelo’s statue of David is not the real David. Some people never get this and they’re left outside in the dark. Try to create something original, you’re in for a surprise.

We are currently binging on "The Americans", a spy drama about two Soviet plants, a husband and wife, set in the 80's. It's an interesting blend of things-- the spycraft is sometimes over the top, but that stuff is also blended with contrasting sets of domestic dramas. One of the show's techniques is to mirror the Soviet couple-- who are, for all outside appearances, thoroughly Americanized, with their neighbors, who are having their own difficulties. While it is doing this, it mirrors the Soviet agency with the FBI. Sometimes there are contrasts, and sometimes the two organizations operated along very similar lines. We just got past the assassination attempt on Reagan, which had everyone on the show freaking out, and it made it seem new by showing that the Soviets were depicted as really believing that it was an attempt at a coup. We were in law school at the time, and that was not my impression. When Al Haig announced that "Constitutionally, I am in charge," my thought was, "You moron. Take another look at the 25th Amendment." Of course, the 25th Amendment is never far from my mind..... (The show also depicts the nation as being in the grip of fearful doubt in the wake of the shooting. Maybe it was my contempt for Reagan, but I wasn't freaked out, or glued to the TV.)

It never occurred to me then that from the outside having a general make that announcement might really look like a coup. One of the Soviet characters reassures the other by telling her, "You don't know these people," and I think that was the moment I knew I was hooked. It really is difficult to imagine Americans tolerating a coup d'etat. Say what you will about the individuals who occupy the various institutions of government at any given moment, those institutions themselves are very stable.

John Hinkley is out of St. Elizabeth's now. He changed the operation of the insanity defense, but what is really notable about him, it seems to me, is that although he is quite plainly as mad as pants the science of psychology, the DSM quantification of mental illness, is still struggling to figure out what happened-- or what happens today-- in his brain. Neither the law nor medicine knows what to do with a person like Hinkley, a bizarre outlier who taxes our capacity to be humane. (Interesting aside- the family pays for his therapy out of pocket.  That seems very wrong.) 




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Chuck Berry invented an art form. His genius is undeniable, and as my friend Captain X has observed, it is pretty notable that the America he wrote about was substantially barred to him for most of his life.
Also, his catalogue is much deeper than you think. He wrote Chuck Berry songs all the time, and the worst of them was his only #1. On learning of his death A remarked that he was ahead of his time, but I don't know if that's quite right: I think he was exactly of his time, at least in terms of his art. Perhaps he was out in front of the acknowledgements and recognition he merited. If you want to understand Rock and Roll you need to start with Chuck Berry, then Bob Dylan. This video is probably Chuck performing my favorite Chuck Berry song, but if you asked me tomorrow I might tell you my favorite is "Memphis, Tennessee", or "Back in the USA". Maybe "You Never Can Tell". Or....

It was probably never easy to be Chuck Berry. He spent more time in reform school, jail and prison than most great geniuses, and yet his art was optimistic and joyful. In all the ways that matter he overcame the harsh realities of his background and life and became transcendent.

Read what Greg Tate has to say:

Toni Morrison points out that one of the truly amazing things about the Black experience in America is that bestial treatment did not produce a bestial people. The history, generosity, and charismatic capacity of African American music can be readily viewed as a triumph of the civilizing strains of our music over the savagery perpetually visited upon our communities. Tony Bennett reminds us that any civilization is judged by what it gives to the rest of the world. America, he says, can say it gave Louis Armstrong to the world, a statement to which I’d say, Louis, yes, but we need also be as proud that we gave ’em Chuck Berry too. Matter of fact, thanks to Carl Sagan embedding “Johnny B. Goode” in the cosmic archives of earthly civilization on Voyager 1, we can also say America gave Chuck Berry to the universe. Roll over my brother Beethoven, tell Lord Sun Ra the news.

I have always loved Tom Wolfe's description of Jimmy Breslin:

“When he sat down at his typewriter he hunched himself over into a shape like a bowling ball. He would start drinking coffee and smoking cigarettes until vapor started drifting off his body. He looked like a bowling ball fueled with liquid oxygen. Thus fired up, he would start typing. I’ve never seen a man who could write so well against a daily deadline.”

I don't know that there are any journalists like Breslin anymore-- I'm not so sure there are any New Yorker's like him, actually. I loved his campaign for City Council President when Mailer ran for Mayor (Slogan: "Throw the Rascals In"). They wanted New York City to become the 51st state and retain the name “New York”; the rest of the state, Breslin said, could be called “Buffalo.”

What would Breslin have made of Kellyanne Conway? Or Steve Bannon? (We know what he thought about Trump.)

Neil Gorsuch is the worst sort of conservative jurist: he isn't even trying to get to the just result.

On January 14, 2009, trucker Alphonse Maddin picked up a load of frozen meat in Nebraska that was to be delivered to several locations, in Wisconsin and Michigan. At about 11 p.m., while traveling through Illinois in subzero temperatures, his engine began “sputtering.” The fuel gauge had dipped below empty and he couldn’t find a gas station. (It was later determined that TransAm had misidentified the gas station’s location on the map it had provided Maddin.) Maddin pulled off the road, contacted TransAm, and was informed that the driver who had been scheduled to “switch out” with him couldn’t do so, so he’d have to continue the trek himself.

Maddin restarted the truck but discovered that the trailer’s brakes had frozen, due to the frigid temperatures. He called TransAm’s “Road Assist” unit at 11:16 p.m., and was told to wait there for a repairman.

When the truck was being driven, it used one heating system, but when the motor was off, the driver had to rely on a bunk heater run by an auxiliary power unit. Maddin’s auxiliary power unit, however, had stopped working earlier in the trip. So Maddin waited in the unheated truck. After about an hour, he fell asleep.

At 1:18 am — nearly two hours after first calling Road Assist — Maddin was awakened by a cell-phone call from his cousin. The cousin became alarmed by how Maddin sounded; he seemed to be shivering, and his speech was slurred. Maddin straightened up in the cab and noticed that his skin was “crackling” from the cold, his torso was numb, and he couldn’t feel his feet, according to the administrative review board ruling. Maddin hung up with his cousin and called TransAm’s Road Assist unit again. He was told to “hang in there.”

According to the review board opinion, Maddin “tried to follow this suggestion but became fearful of losing his feet, dying, and never seeing his family again.” After another half-hour with no relief, he called his TransAm supervisor, reporting his physical symptoms which, by then, also included trouble breathing. Maddin explained that he wanted to unhook the trailer from the cab and drive to a gas station. The supervisor ordered him, however, according to the review board decision, “to either drag the trailer with its frozen brakes or stay where he was,” warning that the company could be fined if Maddin left the trailer unattended.

Shortly after the call ended, at 2:05 a.m., Maddin detached the trailer and set off looking for the gas station, which he eventually found. Then, at 2:19 a.m. — three hours after originally reporting the frozen-brake issue — he was called by the repair truck operator, who had finally arrived. Maddin drove back to the trailer, where repairs to the brakes were completed at 3:20 a.m. A week later, Maddin was fired for having disobeyed the orders of his supervisor.

Maddin appealed, arguing that the Surface Transportation Assistance Act provides thatan employee can’t be fired if he “refuses to operate a vehicle … because the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.” The administrative law court and the 10th Circuit Court of Appeals agreed, but Judge Gorsuch dissented: "“When the statute is plain, it simply isn’t our business to appeal to legislative intentions.After all, what under the sun, at least at some level of generality, doesn’t relate to health and safety?”

Man, that is some ice-cold shit right there. You know who writes stuff like that? Asshole law students who want to show how contrarian they can be.

I enjoyed thinking about this writing assignment for my Constitutional Law class, so I'm sharing it.

We have been discussing the drafters' intentions in crafting Article I-- including the various compromises made along the way, and the notion that, according to Hamilton, the document was intended to represent the starting point for a governmental system that, like the common law tradition it derives from, would evolve over time. In fact, the governmental system and the document itself have evolved, but it could be argued that both are still very much rooted in the 18th and 19th centuries. Since the Constitution was ratified there have been a number of different governmental systems that other nations have developed and employed, some quite successfully. The belief that our Constitution is immutable and incapable of improvement is antithetical to the philosophical underpinnings of this course. We don't just what to know how the Constitution works, we want to think critically about how it might work better.

For this assignment you are to consider how you would propose re-shaping Article I. I will award points for creativity, so don't feel as though you should just nibble around the edges, or make minor tweaks. Should the United States move to a pure parliamentary system? Why not draw the Cabinet from Congress? Do we even require a legislature? If we do, should the means of selecting the members of the legislature remain the same? How would you change the selection process? Perhaps the legislature should be merely advisory. Are the present limitations on Congressional power still rational? Should they be expanded, or should they be limited? What limitations would you propose? Why do we want a bicameral legislature? Plenty of places get on fine without-- should we shuffle the powers presently assigned to the House and the Senate?

I typically stop by Record Theater on Record Store Day, just to check out the scene. I've bought a few things from time to time, but in general the special offerings are too outside my interests. However:

Peter Tosh – Legalize It [LP] (POT-SCENTED! Jamaican Red/Yellow/Green-Striped Colored Remastered Vinyl, limited/numbered to 2500, indie-exclusive) LP

I mean, I still have my original copy, but pot scented and three colored vinyl?

Interesting interview with Timothy Snyder, a historian with some ideas about how to resist Trump. This part resonated with me, because I believe that as lawyers it falls to us to prevent the normalization of bigotry and totalitarianism:

Also on the positive side so far are the lawyers. I don’t mean all the lawyers. I don’t mean Kellyanne Conway. I don’t mean Jeff Sessions, both of whom seem to have violated professional ethics pretty drastically. I do mean the lawyers who had got out in front already in November, December, and started to think about what the necessary lawsuits might be and then were ready to file in January and February. The reason I think of the lawyers is that, like Germany in the ’20s and ’30s, we pride ourselves on being a rule-of-law state. You can’t undo a rule-of-law state without lawyers. In the Nazi example, most of the lawyers switched over. In fact, a lot of the lawyers were right at the forefront of some of the most atrocious policies of that regime.

This is not to say, by any means, that resistance by laypersons is any less valuable-- in most ways I think it is more important. I believe that our glamor profession has a specialized role, just as we do in society generally. The machinery of government is what we depend on, and work with daily, so it falls to us to recognize and repair any malfunctions.

Is this the greatest moment in American cinema? I think it may be

Way, way back when I started Outside Counsel one of the areas that I thought we'd cover a great deal was privacy. I proposed teaching a class on Privacy Law to the law school, but that went nowhere; I gave some presentations on privacy here and there; I testified about it for a New York State commission on the  subject. I wrote a little bit about it-- it is a natural extension of my interest in surveillance, which is probably the topic I have published on most frequently.

The truth is that the cat is out of the bag and the horse is out of the barn: there really is no such thing as privacy any more, and the law has not really caught up with this reality. When I was researching the subject for the proposed law school course it seemed to me that one of the differences between the Western European approach and the US approach  is  that in Europe the right of privacy is viewed as a civil right, while in the US it mostly flows from the Fourth Amendment, and is largely a right held in the context of protecting the individual from over-reaching criminal investigations.

Amazon's Echo is an always on internet device with an interactive "assistant" called Alexa. If you address Alexa you can ask it questions, or order stuff from Amazon, or do other internet-y things. So can the police obtain your Amazon Echo records without a warrant? What are the limitations on a search with a warrant? What are the admissiblity rules? Is there an expectation of privacy when one talks to what is, essentially, a robot?