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William C. Altreuter
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Thursday, July 31, 2014

Anybody who was paying attention at the time knew that the national media-- and particularly the New York Times-- was in the tank with the Bush Administration. The fact that Jill Abramson is now admitting it should be enough to keep something like that from happening again, but it won't be.
Abramson was the Times’ Washington bureau chief at the time. The debris in lower Manhattan was still settling when Ari Fleischer, Bush’s press secretary, arranged a conference call that included “every leading editor in Washington.”
Abramson dilates on this key moment:
“The purpose of his call was to make an agreement with the press—this was just days after 9/11—that we not publish any stories that would go into details about the sources and methods of our intelligence programs. I have to say, that in the wake of 9/11, all of us readily agreed to that.”
Plenty of people who one would have hoped would have thought better of a massive scheme to defraud the country-- the world, really-- into as misbegotten a series of wars as have occurred in history. Colin Powell. Most of the Senate, including the New York delegation. It is not difficult to understand why-- but it is, for me, impossible to excuse or forgive. When you are a journalist your sole obligation is to the truth. When you are elected, or appointed, to serve you take an oath to uphold the Constitution. The one I took when I was admitted to this glamor profession went like this:
I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of [attorney and counselor-at-law], according to the best of my ability.
The oath that members of Congress takes is a little more elaborate:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
Journalists, of course, take no oaths. Finley Peter Dunn said that newspapers should  "comfort[s] th' afflicted, [and]afflict[s] th' comfortable", and Mother Jones said that was likewise her task in life, but if Jill Abramson ever felt that way it was a pie crust promise, easily made and easily broken. And what does that leave us with? On the evidence neither the government nor the press is going to tell us the truth-- at least, not all the time-- and where does that mean about democratic self government? What the New York Times did was to become a mouthpiece for an Administration that was already suspect, abandoning any pretext of objectivity in the process. I guess what this means is that one should read the Times for the box scores and the recipes.


Tuesday, July 29, 2014

Excellent Christgau interview, and excellent news: he is publishing a memoir

Monday, July 28, 2014

It appears that the narrative about the Republican Party's prospective Presidential field is going to be what a bunch of intellectuals they all are. As a rule, by the time the New York Times gets a hold of an idea it is already established knowledge, so the July 2 story about the new crop of Republican wonks was right on schedule.  Slate chimes in today with a piece about what deep thinkers Rand Paul, Rick Santorum, and Bobby Jindal all are, and any story about Ted Cruz requires mention of his Harvard credential. All that's missing is a comeback from Newt Gingrich.

What goes unsaid in all of this is that even if you accept the notion that these new Republicans are brimming with fresh new ideas, all of them are lousy ideas, and actually most of them have been tried and found wanting. It is no coincidence that Republican Presidents leave office with the economy a smoking ruin. Kindly old Bob Dole snarling about "Democrat Wars" doesn't change the fact that it is Republican bellicosity which marks US foreign policy. The real bottom line is unchanged: as Louise Slaughter told us in our interview with her nine years ago, Republicans are bad at governing because they don't believe in government.

Friday, July 25, 2014

Fridays are law days (sometimes) here at Outside Counsel. Today let's consider Cappiello v. IDC Publications. Professor Siegel featured it about a year ago, but I just now came across it, and it is the sort of nifty thing that Erie v. Tompkins makes possible.

In New York interest on post-verdict judgments is set by statute at 9%. In federal court the judgment rate is computed according to a formula that adopts Treasury yields. 9% is crazy, and a lot of appeals that might get taken don't get taken because 9% will kill you. So what's the rate to apply when a New York action is removed to federal court on the grounds of diversity? Well, that comes down to the classic Erie question: is post-verdict interest a substantive issue, or merely a procedural question? Pre-judgment interest is part of the substantive law of the state, so New York law applies, but post-judgment interest is procedural. In Cappiello the court reckoned the applicable rate at 0.25%. That's a swing that stings, cats and kittens. There is a work-around, maybe: Seigel says the federal judgment can be docketed with a New York State county clerk under CPLR 5018(b), but the Cappiello decision says nay. Another way to address it-- in commercial cases-- would be to have the contract speak to the question directly. At what point does the failure to include such a provision become a source of concern for the drafting lawyer? Isn't that an ugly question?

I'm not sure to what extent the Cappiello rule would really color my conversation with a litigation client about whether or not to remove a case. It is, however, one more item on one side of the ledger.

Thursday, July 24, 2014

Good Charlie Parker story, and a cool story about documenting it.

Tuesday, July 22, 2014

When I do radio I need to remember to speak from lower in my chest. Still, this came out pretty okay I think.

Sunday, July 20, 2014

Being on the radio is much cooler than just driving somewhere and shouting at the radio. Thanks to Dave Debo and WBEN for the opportunity to put on the cans and take calls on the air.

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