Outside Counsel

Good survey of regional hot dog styles.

It is embarassing to be scooped on this, but it's a great story nevertheless: Adam Liptak reports that Justice Roberts incorrectly quotes "Like A Rolling Stone" in his dissenting opinion in Sprint Communications v. APCC Services.

Per Roberts:

"The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing," Chief Justice Roberts wrote. " 'When you got nothing, you got nothing to lose.' Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965)."

Per Liptak:

"What Mr. Dylan actually sings, of course, is, "When you ain’t got nothing, you got nothing to lose." It’s true that many Web sites, including Mr. Dylan’s official one, reproduce the lyric as Chief Justice Roberts does. But a more careful Dylanist might have consulted his iPod.

Liptak continues, "Alex B. Long, a law professor at the University of Tennessee and perhaps the nation’s leading authority on the citation of popular music in judicial opinions, said this was almost certainly the first use of a rock lyric to buttress a legal proposition in a Supreme Court decision. "It’s a landmark opinion," Professor Long said. In the lower courts, according to a study Professor Long published in the Washington & Lee Law Review last year, Mr. Dylan is by far the most cited songwriter. He has been quoted in 26 opinions. Paul Simon is next, with 8 (12 if you count those attributed to Simon & Garfunkel). Bruce Springsteen has 5. But Mr. Dylan has only once before been cited as an authority on Article III standing, which concerns who can bring a lawsuit in federal court. His key contribution to legal discourse has been in another area. 'The correct rule on the necessity of expert testimony has been summarized by Bob Dylan: 'You don’t need a weatherman to know which way the wind blows,' " a California appeals court wrote in 1981, citing "Subterranean Homesick Blues." Eighteen other decisions have cited that lyric."

As we have pointed out in the past, our url at Outside Counsel is taken from "Absolutely Sweet Marie", but we have never revealed the back story. In view of the intersection of Dylanology and the Law in today's news now seems the time.

Some years back I was retained as local counsel by a former colleague of A's from her Brooklyn District Attorney days. The case (Freight Drivers, Helpers, Dockmen & Allied Workers Local No. 375 v. Kingsway Transports, Inc. 1992 U.S. Dist. LEXIS 15318) was a labor law dispute which turned on a rather esoteric question of arbital jurisdiction. The employer, who we represented, had initially objected to and reserved the issue of arbitral jurisdiction but still submitted the issue to the arbitrator, and was now seeking de novo review. At one point during oral argument the judge asked why, if our client had thought that the issue was not arbitable, it had gone forward with the hearing. The answer was that the question of arbitability was part of what had been submitted in the arbitration, and that de novo review made sense in that context, "Because," as my lead counsel argued, "as Bob Dylan said, 'To live outside the law you must be honest'." Later he confided that he had been waiting his entire legal career to drop that line into oral argument, and although it did not carry the day, I knew that the moment deserved to be memorialized. (Thanks to Lawyers, Guns and Money for the Liptak cite.)

Al Kooper's "Backstage Passes and Backstabbing Bastards: Memoirs of a Rock 'N' Roll Survivor" assumes that we're more interested in Al Kooper than perhaps we really are. Kooper is at pains throughout the book to point out that many rock histories are written without talking to people who were in the room, and that many inaccuracies are perpetrated as a result. Fair enough, and certainly Kooper was in a lot of interesting rooms. He's got a lot of good stories, but I get the feeling that he still isn't telling us everything he knows. In the early going it really is more of a history-- he goes into elaborate detail about the difference between the Brill Building and 1650 Broadway (the latter is where early 60's rock was written he tells us), and this is interesting and important to know. He is good on the business of selling songs in that period-- again, inside stuff that a lot of bios ignore. Once he gets rolling, though, Al Kooper looms larger in the narrative than Al Kooper ever did in rock'n'roll, and this distortion, perhaps inevitable in a first person narrative, has a sort of "Rosencrantz and Guildenstern Are Dead" effect on the story.

The history of sixties and seventies rock that we get from Kooper more or less starts with "This Diamond Ring" (he didn't like the version Gary Lewis and the Playboys did, and later recorded it himself); his time with Dylan; The Blues Project; Blood, Sweat and Tears; "Super Session"; Mike Bloomfield; session work with the Rolling Stones on "Beggers Banquet" (that's Al on the French horn into to "You Can't Always Get What you Want"); Lynyrd Skynyrd; and The Tubes. There's a lot more, and just that list covers quite a bit of ground, but he spends nearly as much time discussing his various solo albums (quick-- name one) as he does on any of the other projects. I like "Child is Father to the Man" as much as almost anyone, I daresay, but as interesting and charming as it is, it is nowhere near as interesting or important as Dylan or the Stones. The book is a weird view of the period as a result of the fact that he insists on writing as much about "I Stand Alone" as he does, very nearly, about "Blond on Blond".

It would be more interesting, for example, to read more about the business machinations surrounding his departure from The Blues Project and Blood Sweat and Tears. The latter was formed, he tells us, with the explicit understanding that it was his band. How'd they fire him from his own band? (The "why" he shares with us-- they wanted a stronger singer.) Just about the only person in the book that he slams is Steve Katz, who worked with him on both of those ventures-- he is pissed off at Steve Katz, who most of the rest of us will have to look up. (It is important to Al that we understand that The Blues Project, which produced a couple of likable enough sides, and which I haven't thought about in at least 20 years, did not break up because he wanted the band to play "This Diamond Ring". Just so you know, that wasn't it at all.)

He spends some time on the deal the label had with Skynyrd, but doesn't mention the terms of his buyout-- long-time "Outside Counsel" readers already know more than he tells us, although the background is interesting.

Kooper gets to write a memoir because he played the organ part on "Like A Rolling Stone". None of the rest of it-- writing "This Diamond Ring", "Super Session" discovering and producing Lynyrd Skynyrd-- gets you a book deal, but Al makes the most of it. More Dylan stories would go a long way-- Kooper worked with him in the "Highway 61"/"Blond on Blond" period, and was on stage at Newport. The stuff he writes about this is fascinating, even though it is more about being Al Kooper playing in Dylan's band than it is about what Dylan is like. Kooper was also on the "Shot of Love" tour, and worked on the 30th Anniversary Concert Celebration show. More stuff about these things would be illuminating. ("Shot of Love" was where a lot of people got off the Dylan bus. All we really learn about this time was that Bob didn't go to soundchecks, and that it was Al's idea to play some older numbers to keep the audiences happy.) He seems to have feuded with Dylan, or fallen out for some reason, but he doesn't discuss it, and as a result we are deprived of whatever insight he might have about an artist that he has worked with for years-- maybe longer than anyone else, when you think about it. In the end the most illuminating thing we learn about Dylan is contained in a remark he makes about a television producer: "Michael Mann reminded me of Bob Dylan. They were both masters of intimidation, but both were sweethearts underneath it all. I decided to play a hunch and act toward Michael the same way I did toward Bob-- as an equal who did not feel intimidated by him."

He's careful to give credit to just about everyone, and he is interesting when he gets going on music production. He doesn't spare himself, and deserves props for that. The section on kicking Percodan, while hardly as harrowing as a page of Art Pepper's book, is honest, and he takes the responsibility for the failure of his first three marriages without being dramatic about it. The section on his draft physical is worthy stuff, and one of the few passages in the book that looks outside of the music biz to talk about life in that period. Probably the most valuable thing about the book, though, is the insight it provides into what a tough way of life working in the music biz really is. Kooper has made a lot of money for a lot of people over the years, but he himself has really had to scuffle at times notwithstanding his skills and his reputation. He seems like a nice guy-- a nice Jewish kid from Queens. And the photographs are terrific.

Just because I was first doesn't make this Observer article wrong-- Howard Dean was had the right strategy, and if he hadn't become the target of mockery he'd have been a stronger candidate than Kerry. Dean was a target of a press that was still in a swoon over Bush, and yes, I'm thinking of St. Tim Russert in particular. You want to know why television journalism is a dying media? Consider the last eight years.

One of the things that I like about judging moot court is that it gives you an advance look into the issues that the real courts are dealing with. Unless you follow the Supreme Court a lot more closely than most people the tendency is not to notice what cases the justices accept, so when the decisions are made we don't really have the background on them which might put the law in better context. Slate's Dahlia Lithwick does a great job of covering the arguments, the Times is okay too, and Nina Totenberg is also good on the big cases, but for realling getting into the nitty-gritty moot court is great. Last March I was importuned into judging the Herbert Wechsler National Criminal Law Moot Court, and had a chance to consider the arguments for and against capital punishment for child rape. Now, three months later, I feel like I'm in a position to say that the Court got this one right. Not surprisingly it was a 5-4 close call, but I'm fine with that.

Something that seems notable to me about this decision is that it gives the lie to all the talk we've been hearing about how the Roberts Court is different. This is a 5-4 split that looks exactly like the 5-4 splits we've been seeing for years. There is nothing subtle or nuanced about this decision-- it is not like the Indiana voter ID decision, with a "liberal" Justice joining the majority in order to craft a "moderate" decision. This is clear-cut stuff: Scalia, Thomas, Roberts and Alito have no problem with capitol punishment; Breyer, Ginsburg, Souter, and Stevens say nay. It is hardly surprising that Kennedy wrote for the majority-- a guy who looks to comparative law for guidance is hardly going to take the position that the Saudi Arabian penal code is an apt model for American jurisprudence.

Although a bit too Brit oriented, I thought this piece on books that haven't survived their time is provocative. "This was an interesting, if not entirely scientific, exercise. For many, it provided the opportunity to wallow in what we might call antinostalgia; the shaking of the ageing head and the muttered “My God, were we stupid enough to fall for all that claptrap?”. Like remembering you’d once purchased a Uriah Heep record, or sported three-button high-waisted Oxford bags with a cheese-cloth shirt." Robert Pirsig, John Fowles belong there-- I wonder when the last time was that someone read "The French Lieutenant's Woman"?-- but I'd argue against including Philip Roth or Gabriel Garcia Marquez. There is a time in one's life to read Herman Hesse-- miss it and you'll never go back. You'll never miss it, and you'll probably never go back, but I'd say that Hesse is as timeless as teenage existentialism, and therefore not properly on this list. In the comments someone mentions Lawrence Durrell-- couldn't agree more, "The Alexandria Quartet" is as dated as spats. (Via Bookslut.)

My summer read at the moment is Al Kooper's reminiscence. I'd thought it was serialized in Rolling Stone back in the day, but it must have just been excerpted, because there is a ton I haven't seen before. There's a lot less Dylan-- the story about sneaking into the "Like a Rolling Stone" session, Newport, Forest Hills and a Hollywood gig, then the Hawks want in, and Al plays some sessions and gets involved with the Blues Project. Kooper is an engaging writer, and although he loves being a musician what he is best on is how the music biz worked in those days.

I rode by the stable on my way home from the City Honors Bike Trip. There was a woman standing across the street with a petition to save the stable, so I signed it, but I have no idea what is proposed. As you can see there is little left beyond the facade, and even that is much more badly damaged than is often shown.