On Judicial Silence

Over the weekend, Jeffrey Toobin at The New Yorker wrote a column in which he repeated a fairly regular criticism of Clarence Thomas - that the justice's silence during oral arguments is the mark of some kind of intellectual or character flaw.  To Toobin, it indicates the Thomas isn't really invested in proceedings and isn't really doing the job right.  To me, this criticism doesn't make much sense.

For one thing, evidence seems to suggest otherwise, at least Ilya Somin's observations during an argument earlier this week:

For what it is worth, I saw nothing to support Toobin’s claim that Thomas is disengaged and “not paying attention” during oral arguments. During the course of the argument (which was on a relatively prosaic statutory interpretation case), I saw Thomas confer with liberal justice Stephen Breyer some three or four times, and with Justice Scalia once. I believe I also saw him look up some points in what seemed to be the joint appendix filed by the parties (or perhaps one of their briefs). Obviously, I could not overhear what Breyer and Thomas were saying. Perhaps they were discussing the weather or making plans for lunch. But the timing of their interactions make it likely that they were talking about issues raised in questions asked or about to be asked by Breyer, or one of the other justices.

As Somin points out, Thomas regularly talks with Breyer during arguments, so this doesn't seem to be out of the ordinary.

For another, Thomas has long had a consistent and reasoned, if flawed, explanation for his silence during oral arguments.  That is, he prefers to listen to what the advocates have to say, rather than interrupt them constantly.  As Somin points out, this is how oral arguments were in the good ole' days, much more a rhetorical event than a back and forth between the bench and the attorneys.

Where I disagree with some folks who have criticized Toobin, like Ed over at Dispatches from the Culture Wars, is in their claim that Thomas's approach is probably better:

Yes, let’s imagine if all nine justices behaved as Thomas does on the bench. The attorneys, who only get 30 minutes, might actually get to present their case without interruption. As it is, they often don’t get the first sentence out before someone, usually Scalia, is badgering them like a high school debater during cross-examination. Thomas is right about this. By the time oral argument is heard, the justices have already read the entire trial record, the appeals court record, every brief filed in the case (sometimes dozens of them) by both parties and amici. They already know how they’re going to vote and nothing said at oral argument is likely to change that.

As a somewhat experienced appellate advocate (not before Thomas and his brethren, alas), I do not want to return to the days of Daniel Webster and lawyer speechifying for oral arguments, largely because of the factors Ed points out.  By the time a case gets to oral argument, all that's really left is for the judges to ask questions of counsel.  Everybody's read the briefs, everbody's reviewed the record.  Briefs get filed in a particular order for a reason.  First whoever is taking the appeal files a brief, then the other party responds, then the first party gets to file a reply.  In other words, everything the parties can bring up should have been asked and answered before anybody steps into court.

Personally, I don't want an oral argument that's just 20 minutes of me waffling to the court.  I want judges to ask questions.  I want to know what's troubling them about my arguments and what they think is perhaps a winning point for the other side.  Questions at oral argument focus in on the meat of the case in a way that written submissions just can't.  If nothing else, judges can pin down lawyers who are trying to be slippery with the law, the facts, or both.

All of which is to say while I don't find Thomas's reasons for remaining silent compelling, I don't think they're a sign that he's unqualified to sit on the bench.

Besides, sometimes when you open your mouth all you do is put yourself in a world of hurt.  Ask some of my clients.

Judas Unrepentant Unmasked?

It took a while for Big Big Train's The Underfall Yard, released in 2009, to grow on me.  It's successor, English Electric Volume One still hasn't*, for whatever reason, with the exception of one track.  It's a song about something that always strikes me as fascinating - art forgery.

"Judas Unrepentant" is about a guy who forges art, but does it in a very clever way.  Rather that churn out reproductions of known classics, he has a different scheme:

Establishing provenance
Acquiring old frames with Christie's numbers
Then Pains a picture in the same style
Specializing in minor works by major artists

It's quite brilliant, actually.  Reminds me of a story I heard Rick Nielsen of Cheap Trick tell about their early days - where every other bar band played the radio hits by Zeppelin or The Who, they'd learn the B-sides nobody paid much attention to, so it sounded like original material (although they never passed it off that way).

I always wondered if the song was completely fictional or inspried by a real forger.  Last night, I think got the answer, thanks to a 60 Minutes piece on Wolfgang Beltracchi.  As the setup explains:

Wolfgang Beltracchi is a name you may never have heard before.  Very few people have. But his paintings have brought him millions and millions of dollars in a career that spanned nearly 40 years. They have made their way into museums, galleries, and private collections all over the world.  What makes him a story for us is that all his paintings are fakes. And what makes him an unusual forger is that he didn’t copy the paintings of great artists, but created new works which he imagined the artist might have painted or which might have gotten lost. Connoisseurs and dealers acknowledge that Beltracchi is the most successful art forger of our time -- perhaps of all time. Brilliant not only as a painter, but as a conman of epic proportions.

Now, the song is not Beltracchi's story.  For one thing, the song indicates that its hero wanted to get caught:

His time bombs are in place
And anachronisms
Clues pointing to the truth
If ever they are X-rayed

It's clear from the story that Beltracchi didn't want to get caught, which he did.  He was sentenced to six years in prison and his wife/codefendant to four.  As for how he got caught?

But then in 2010, he got busted by this tube of white paint. 

The Dutch manufacturer didn’t include on the tube that it contained traces of a pigment called titanium white. That form of titanium white wasn’t available when [Max] Ernst would have painted these works and Beltracchi’s high ride was over.

Which is interesting, because in the song, our hero:

Wrote legends in lead white
to trick the experts
And hoodwink the trained eye

Coincidence?  Could be.  But Beltrachhi's story must have been in the news in Europe sometimes before "Judas Unrepentant" was written, so it makes sense that one served as inspiration for the other.

One thing I will say for the song is that is provides something the 60 Minutes piece doesn't, which is answering why go through all trouble?  Beltracchi is a staggeringly talented guy.  Presumably he could have been a successful artist under his own name, so why all the fraud?  "Judas Unrepentant" has an answer:

He's painting revenge
Embittered by lack of success

* * * 

Expressing contempt
For greedy dealers
Getting rich
At the artist's expense

Revenge as the long con.  I like it, although it all comes to a tragic end, sadly.

I think what makes art forgets so interesting is that they tend to poke a finger in the eye of the art world, challenging its aesthetic bona fides and pointing out how, so often, people only care about the name attached to a work, not the work itself.  To that end, I applaud this collector:

This $7 million dollar fake Max Ernst is being shipped back to New York.  Its owner decided to keep it even after it had been exposed as a fake. He said it’s one of the best Max Ernsts he’s ever seen.

Because, in the end, the important thing shouldn't be whether the signature on the bottom makes your friends jealous, but whether the art moves you and makes you think about it.

* The similarly named English Electric by OMD, however, grabbed me right away, for what it's worth.

What's the Point of a Review?

My Friday Reviews are the descendant of one of the features of my original, hand crank operated, web page I had while I was in college and law school.  There I'd do reviews of just about every album I got, as part of a regular process of listening and figuring out what I thought about it.  I stopped doing those, largely because my reviews were winding up in one of two formats - gushing praise or harsh scorn.  If I didn't really "feel" one of those, I didn't even write up.  I'd like to think I do better now, but it's helpful to be able to pick and choose.

I bring all this up because of an interesting two-person article in the upcoming issue of the New York Time Sunday Book Review which asks the question, "do we really need negative book reviews?"

Now, as a struggling writer, I kind of like the idea of doing away with negative reviews. Who wants to see their work torn to shreds, after all?  But I'm not certain that would really be the best thing.

Francine Prose makes the case for not writing negative reviews.  It's pretty simple:

Even so, I stopped [writing negative reviews]. I began returning books I didn’t like to editors. I thought, Life is short, I’d rather spend my time urging people to read things I love. And writing a bad book didn’t seem like a crime deserving the sort of punitive public humiliation (witch-dunking, pillorying) that our Puritan forefathers so spiritedly administered.

From my reading of professional critics, that seems to be the best part of the job - when they find something in need of a champion, a book or film that won't reach a wider audience without some cheerleading.  It must be more rewarding that writing what shit the latest Transformers movie is or whatever.  So I see the point.

On the other hand, however, that seems a bit too touchy-feely, doesn't it?  To be fair, Prose (good name for a writer!) doesn't argue for lying about the quality of books, just not writing reviews of bad things at all.  Which, come to think about it, might be even worse - being ripped apart is one thing, being ignored quite another.

Zoe Heller makes the case for negative reviews and it is, as well, pretty simple:

most writers do not write merely, or even principally, to escape from or console themselves. They write for other people. They write to have an effect, to elicit a reaction. That is why they scrap and struggle, often for years, to have their work published. Being sentient creatures, they are often distressed by what critics have to say about their work. Yet they accept with varying degrees of resignation that they are not kindergartners bringing home their first potato prints for the admiration of their parents, but grown-ups who have chosen to present their work in the public arena. I know of no self-respecting authors who would ask to be given points for 'effort' or for the fact that they are going to die one day.

Part of being an artist, at least one who shares his work with other people, is the need to deal with criticism.  My father is a first rate grammar-Nazi.  I have him read my fiction, even though it's not the kind of thing he normally reads, because he will be precise and vicious with a red pen.  When my mother asked if I really wanted him to do that, I said, "because editors and agents will be kind and not point out those things?"  Being criticized is part and parcel of being a creative person.

Further, as Heller points out, reviews come with bylines and, hopefully, supporting argument as to whether a book is good or bad.  Real criticism goes miles beyond "it sucks" or even "it's great!"  Critics who are savage just for the fun of it won't garner a lot of respect or readers.

After all, as Prose admits, trying not to write a negative review is like trying not to eat too much at Thanksgiving.  You're bound to find something that rubs you the wrong way, doesn' work, and compels you to write about it.  Even if, as she also points out, in the end, nobody will really pay attention to what you have to say.

These days, when I write a review, I try to have something interesting to say about whatever the subject is. That's why there isn't a review posted every Friday.  Something's got to strike my fancy somehow, either by being brilliant or flawed, but I won't think twice about saying I think something sucks.  I just hope I have good enough reasons to make somebody else think, "yeah, all right."  Agreement, of course, is not required.

So I think the answer is yes, we do need negative book reviews.  Whether we need "bad" reviews is, of course, a completely different question.

Lawyering Au Natural

For most people it's hard to separate what lawyers do from where they do it - courtrooms.  Whether it's a trial court, with a jury box filled with a dozen regular folks who are going to decide someone's fate, or an appellate court where a panel of judges glower down from the bench at the lawyers making the argument, we've got a pretty good idea of where this kind of takes place.

It was not always such.  Over at the Legal History Blog, professor Bernard Hibbitts is blogging a bit about his teaching of the history of lawyers and lawyering to his students.  I found this entry particularly interesting, because it's about the ancient roots of the law in Greece and Rome.  As originally conceived, lawyering (such as it was at the time) was done in the outdoors, not just because they hadn't figure out a better place for it yet:

By definition, outdoor advocates performed in public. They argued their cases under the unobstructed gaze of their community's gods, and they shared the very physical and acoustic spaces where other members of the community interacted to buy and sell, borrow and beg, meet and greet. Even within the confines of the court or the corona (the ring of onlookers surrounding the Roman judge), litigants and their legal representatives inevitably heard the calls and cries of commerce from the market area beyond. People in the marketplace could in turn hear (and in the Roman Forum see) litigants and/or lawyers pleading, creating mutual awareness and to some extent social accountability. There was no silence in these courts.

What's the one thing you think of when you think of modern court proceedings?  It's the quiet.  Nobody says or does anything unless it's part of the proceeding.  You don't jabber to your neighbor in the gallery, you don't talk on your cell phone.  Unless you're the judge, a witness, or a lawyer, you pretty much better keep your mouth shut, under pain of a contempt charge.  Quite a contrast.

So when did things move inside?  Blame the Romans.  More specifically, blame Julius Ceasar, who built a building just for the purpose of housing courts (modestly named after himself, of course):

Bringing lawyering inside, however, was arguably less an act of architecture as a product of politics. . . . Although the gods may have continued to look down on court proceedings from monuments in the Forum and perhaps even statues on the Basilica Julia itself, their gaze upon Roman justice was now by definition occluded. And who had occluded the sight of the gods? Roman leaders and emperors who now literally sought to confine, possess and discipline the ritual of public justice and the voices and processes of Roman advocacy (at the same time, by the way, as they increasingly claimed to be gods themselves, beginning with Divus Julius, the very builder of the Basilica). In the comparatively cramped space of the Basilica Julia there was literally less room for eloquence, less expanse in which to gather a crowd, less opportunity for advocates to potentially lever their public presence, their bodies and their commanding voices against power. After the death of Cicero, the Basilica Julia helped Rome's dictators ensure that no advocate like him would rise again.

Successive emperors built their own courts and thus, what Hibbitts calls "lawyering's most fundamental change of venue" was on.

Personally, I don't mind the move indoors - it was in the 20s when I was in Richmond last month, after all!  But I see Hibbitts's point.  Putting aside nonsense about gods, when you move justice inside you do hide it from public view, somewhat.  Sure, courts are generally open to anyone who wants to come and watch, but my experience is that, beyond students brought in specifically to observe, the public doesn't take advantage.

Part of that, no doubt, is because people are just too busy and, honestly, the day-to-day happenings in court are pretty boring.  But part of it might be also that going to court is like going to church - it's a sacred place with strict rules of behavior and uncomfortable seating, but with the added bonus of security theater to deal with.  Might more people take interest if they could just walk by and drop in on a case?  Chances are we won't ever know.

Top 10 Personally Influential Albums

A few weeks ago on Facebook my friend Robert Pashman (or 3rDegree fame - go buy their music!), put up a list of 10 progressive rock albums that had been particularly influential on him.  I liked the idea of such a list, one that's not "favorites" or "bests," but that had some kind of personal meaning.  Given that I'll always shamefully steal somebody's idea if it's a good one, here's my version of that list, slightly modified.  These are the ten prog albums that have been personally influential to me because of some particular door they opened or some such thing.  Since, as I said, this isn't a list of bests and, frequently, these aren't my favorites albums by these bands, I've added a note about those too, if they're different.

In chronological order of their release, not when I first heard them . . .

Genesis - Nursery Cryme (1971)

Having two older brothers meant I was exposed to a lot of music that was "too old" for me when I was a kid.  Without a doubt, the one that took the most was old Genesis, of which my brother Todd had all the Gabriel/Hackett era albums on LP.  I got into them all at various points, but I think this one was the first one that really hooked me.  Just look at that cover - how could that not lure in an impressionable elementary school kid?  Musically, it was the two story songs on side one - "The Musical Box" and "The Return of the Giant Hogweed" - that roped me in.  I didn't get it all, but I loved it.  Genesis, as a result, is probably my favorite band of all time - at least today.

Favorite album: Selling England by the Pound

PFM - Storia di un Minuto (1972)

Until I got to college I didn't know that prog spilled much beyond the borders of the UK (and Canada and the US, to a certain extent).  I certainly had no idea that there was a thriving prog scene in Italy in the 1970s and that was where some of the British bands (like Genesis) first gained some popularity.  Storia di un Minuto was my first foray into Itlian prog and any music at all that didn't come with English lyrics.  That was an important Rubicon (so to speak) to cross because, while I'd heard and enjoyed a lot of instrumental music, I didn't know if I could get into something with lyrics that I completely couldn't understand.  Turns out, not only can I get into something like that, I'd much rather (in most instances) hear lyrics in a foreign tongue as opposed to stilted, forced English.  It no doubt helped that PFM's style of symphonic prog is beautiful and spiced with just the right amount of jazzy embellishments.

Gentle Giant - Octopus (1972)

When I went to college and got on the Internet, I discovered two things about prog: (1) it was still a living, if much lesser, genre (to quote Zappa on jazz, "it's not dead, it just smells funny") and (2) there were a whole bunch of bands from the 1970s in the genre they I had never heard of before.  I think of these as "second tier" bands, not based on quality but because they never really broke out the way Yes, Pink Floyd, and the like did. Nevertheless, they were on major labels, toured regularly (sometimes even in the US), and generally had a good run.  One of the first of these bands I discovered and loved was Gentle Giant and, particularly, Octopus.  I'd never heard such a diverse collection of tunes before on one album that, nonetheless, sounded like they all belonged together.  Octopus taught me that there were hidden gems out there and that looking for them could be a lot of fun (and expensive!).

Yes - Yessongs (1973)

Being a child of the 1980s and 90s, by the time I was actually buying albums I did it on cassettes (briefly) or CD.  I still managed to get a few LPs, including this triple-LP live monument, complete with the big Roger Dean gatefold sleeve.  I got it on vacation one year when we visited my aunt who lived outside Philly.  I don't know what made it an appropriate souvenir, but hey, you buy stuff on vacation, so what the fuck?  Given what's included - all of Close to the Edge and most of the important bits from Fragile and The Yes Album - an argument could be made that it's the only Yes album anybody needs.  It's a losing argument, of course, but it could be made with a straight face.  You also get solo spots from most of the band, which for Rick Wakeman leads to belting out the Hallelujah Chorus on a Mellotron.  When I was a kid I had no idea how he did it - I knew about samplers, but in 1972? - but thought it was awesome and is part of why I fell in love with that instrument.

Favorite Album: Close to the Edge

King Crimson - USA (1975)

Occassionally I have found myself at odds with the prevailing prog zeitgeist.  One of those situations involved the last of King Crimson's many 1970s variants, the one based around the rhythm section of John Wetton and Bill Bruford.  I leaned more toward the Belew era stuff and didn't quite get all the fuss over Larks Tongues in Aspic or Starless and Bible Black.  That changed with USA, which is drawn from that version of the band's last tour (after which Krim, for neither the first nor last time, broke up).  It's a powerful, blistering set, during which Wetton and Bruford show who were really the bosses in that lineup.  The improv "Asubury Park" is funky and menacing all at the same time.  USA (which, in spite of being a live album, has some aftermarket studio adjustments) may not be the definitive live document for that Krim era, but it's the one that got to me.

Favorite Album: Red

Hatfield and the North - The Rotter's Club (1975)

One of the things I discovered when I found out about those second tier bands was that a whole subgenre of prog arose from one specific spot in England, the Canterbury area.  Though it's hard to pin down just what makes the "Canterbury sound," it's enough to say that most of the bands that came out of that area had a lighter touch than their symphonic cousins, dabbled in the jazzier side of things musically (I often think of Cantu bury prog as "rock guys playing jazz," while fusion is "jazz guys playing rock." Your mileage may vary.), and often had lyrical content of the surreal and absurdest type.  Hatfield and the North definitely had all that in spades and this album opened my ears to this kind of music.  It also introduced me to keyboard player Dave Stewart, an immense talent and wonderful writer (of music and prose).

Rush - Grace Under Pressure (1984)

I was a big Rush fan long before I started buying music for myself - one of those other few LPs I had was 2112 - and for a long time I thought they would be what prog was in the world going forward.  To that extent, Grace Under Pressure is the first Rush album I bought when it was new (on cassette!) and, so far as I can remember, the first new album I really looked forward to.  At a time when the 70s prog giants were in the process of "selling out," Rush still seemed to be in their own world, even if it was one that had been streamlined and polished since, say, Hemispheres.  Still one of my favorites.

Favorite Album:Moving Pictures

Marillion - Misplaced Childhood (1985)
As I said above, one of the things I discovered in college was that prog was not, in fact dead.  It had never really gone away, although it's commercial heyday was over just after I was born.  Nonetheless, I learned about a brief prog renaissance in the early 1980s and, in particular, of Marillion.  I'd actually heard of Marillion before - my brother had Misplaced Childhood on LP - but never actually heard them.  Misplaced, a highly polished concept album about - well, I'm still not quite sure (ask Fish) - was their commercial high water mark, producing a couple of European chart hits.  It is, perhaps, the definitive example of the early 80s phase called neo-prog.  More importantly to me, it was an entrance into the world of "new" prog that showed it had a lot to offer, as well as an introduction to a band that would quickly become a favorite of mine.
Favorite album: Marbles

echolyn - as the world (1995)
Prog didn't die in the 1970s, and even after the quick (commercial) rise and fall of neo-prog, the genre slouched along until the 1990s, when the Internet and easier CD production led to the explosion that continues today.  echolyn was a bit part of it, breaking through to have as the world released on a major label.  Hell, I found it just by browsing my local CD shop in Morgantown - no Internet orders, no Amazon searching, nothing!  Aside from that, this is one of those albums that I can remember listening to the first time, being completely blown away by the tight three-part harmonies and exquisite playing.  echolyn would become one of my favorites and a prime example that modern prog was alive and well.
Favorite Album: Mei

Mandrake Project - A Favor to the Muse (2006)

One of the cornerstones of the modern prog scene are festivals.  Held every year (hopefully), they bring anywhere from a few to a dozen bands together in one place over one weekend.  Not only are they a great place (sometimes the only place) to see favorite bands, they're also great for being blown away by some group you've never even heard before.  My first festival experience was the dearly departed 3RP festival outside Pittsburgh.  It's only fitting, then, that my first completely out of left field unknown find at a festival happened there and involved Pittsburgh's own Mandrake Project.  There's something special about having your mind blown by a band you knew nothing about before they took the stage.  I'm happy to say it's happened a couple other times since and, I suspect, will again in the future.

Finally, an honorable mention.  I left The Who's Tommy (1969) off this list because it's not really "prog," but it nonetheless had a big impact on my prog life.  It was the first album I was aware of that aimed to be something more than a collection of songs.  In other words, it was my first concept album.  That's not something that's only part of prog, but, as a genre, prog's embraced it pretty heavily.  The deaf, dumb, & blind boy helped launch me on this amazing journey.