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September 2004

Don't You Wanna Make Him Stay Up Late?

Today marks the release of a much-touted 5-film DVD set of work from director Martin Scorsese. Somehow, I can't escape the suspicion that this set is being released now in a preemptive effort to preserve Scorcese's artistic credibility in the face of his soon-to-premiere appearance as a bushy-eyebrowed animated puffer fish. [Marty, Marty, has it come to this? Get a new agent, Marty, please.]

While the bulk of the attention is being lavished on the "Italian Americans in trouble" films in this group -- Goodfellas, Mean Streets and Who's That Knocking at My Door? -- I am more pleased that this set at last brings the DVD release of 1985's After Hours. A nerve-wracking comedy, After Hours follows Paul Hackett (Griffin Dunne) through a very long and progressively worsening night in lower Manhattan in which simple errors and misunderstandings pile one on another until, among many other problems, he finds himself the quarry of a vigilante mob. It is a fine example of the "cruelly mechanical universe" school of farce. At the same time, it bears comparison to the sort of Tale of Terror -- Algernon Blackwood's "The Willows" is a good example -- in which the protagonist crosses in all innocence into a situation in which unfeeling inhuman forces he can neither understand nor control begin to infuse the landscape. Fear threatens to drive out humor throughout the film, but never actually gets the upper hand. After Hours is less well known now than it should be; I for one hope that this DVD release will raise its profile.

P.S., While comedy has a hard time obtaining respect at Oscar® time, the Europeans apparently have fewer qualms: After Hours earned Scorsese the Best Director nod the following year at Cannes.

Munro Doctrine V: A Poetical Temperament

Lady Isobel was seen everywhere with a fawn-colored collie at a time when every one else kept nothing but Pekinese, and she had once eaten four green apples at an afternoon tea in the Botanical Gardens, so she was widely credited with a rather unpleasant wit. The censorious said she slept in a hammock and understood Yeats’s poetry, but her family denied both stories.

-- Saki [H. H. Munro], "The Jesting of Arlington Stringham" (1911)

Have Murphy

Saturday evening's dinner wine chez Fool was Murphy-Goode 2001 "Wild Card" Claret, a blend of Cabernet Sauvignon, Merlot, Petit Verdot and Cabernet Franc from the Alexander Valley in Sonoma County, California. The Alexander Valley is the immediate neighbor to the northwest of that More Famous Valley [*cough* Napa *cough*] and deserves to be as well known, particularly for its red wines produced from the Bordeaux varietals (cabernet and company) and old-vine Zinfandel.

The 2001 Wild Card Claret is delicious, black cherry rolling into an appealingly herbaceous finish (I suspect/credit the cabernet franc for that touch), and just the thing to accompany a favorite Red Meat in good company. 2 or 3 years of further aging will only improve on its already pleasurable demeanor. Reasonably priced, too: this wine is fairly well distributed nationally and should be obtainable well under $20.00. It compares very favorably with wines selling for half again as much. "Yummy" is, I think, the technical term.

The partnership of Dale Goode, Tim Murphy and Dave Ready has been producing wine under the Murphy-Goode label for almost twenty years. (The winery's Web site is here.) Originally making a name for itself as a producer of fumé blanc [sauvignon blanc], the winery now produces a solid and reliable range of red wines as well, including zinfandel, cabernet sauvignon, and an unexpectedly lovely pinot noir (which served as the Fool family Christmas wine 2 or 3 years back). This is another of those California wineries that meet this weblog's standards for across-the-board recommendation, producing reliably enjoyable wines at prices well beneath the stratosphere.

Munro Doctrine IV: Wine-upmanship

The earlier stages of the dinner had worn off. The wine list had been consulted, by some with the blank embarrassment of a schoolboy suddenly called on to locate a Minor Prophet in the tangled hinterland of the Old Testament, by others with the severe scrutiny which suggests that they have visited most of the higher-priced wines in their own homes and probed their family weaknesses. The diners who chose their wine in the latter fashion always gave their orders in a penetrating voice, with a plentiful garnishing of stage directions. By insisting on having your bottle pointing to the north when the cork is being drawn, and calling the waiter Max, you may induce an impression on your guests which hours of laboured boasting might have been powerless to achieve. For this purpose, however, the guests must be chosen as carefully as the wine.

-- Saki [H. H. Munro], "The Chaplet" (1911)

Munro Doctrine III: Lingua Franca

Apropos of Terry Teachout's latest citation to Wodehouse, a counter-example:

'One is so dreadfully under everybody's eyes at Homburg. At least you might give him a preliminary trial at Etretat.'

'And be surrounded by Americans trying to talk French? No, thank you. I love Americans, but not when they try to talk French. What a blessing it is that the never try to talk English. . . .'

-- Saki [H. H. Munro], "Adrian - A Chapter in Acclimatization" (1911)


The topic has come up here before, and this Fool is after all an attorney in California, so here is late-breaking legal news for you.

The California Supreme Court has issued its opinion in the San Francisco gay marriage case. The decision -- 117 pages altogether, including the concurring and dissenting opinions -- in Lockyer v. City and County of San Francisco (August 12, 2004), Case No. S122923, can be found at these links in PDF and Word formats.

I have not read all or even most of it yet, but I glean this: The Court unanimously determines that San Francisco Mayor Gavin Newsom exceeded his legal authority in directing the issuance of marriage licenses to same-sex couples. The 5-justice majority opinion also directs the undoing of any and all marriages that were performed pursuant to those licenses, rendering them a nullity. Justices Werdegar and Kennard, concurring in the impropriety of the Mayor's actions, dissent from the portion of the decision vacating already-performed marriages.

This decision was always postured to focus on a limited issue: whether or not Mayor Newsom had any authority to direct issuance of licenses that were not in compliance with the provisions of the Family Code defining marriage as between a man and a woman. The highest-profile issue surrounding gay marriage nationally -- whether the denial of legal sanction for same sex unions is a violation of those couples' Constitutional rights -- is explicitly not before the Court and explicitly not addressed in this decision. (Another suit raising that question head on is working its way through the lower courts now.)

For no better reason than that it gives me an opportunity to quote a favorite literary passage, quoted by the Court in a footnote, here is a paragraph from near the conclusion of the majority decision, responding to an argument that Mayor Newsom did "the right thing" even if the law prohibits it:

In this case, the city has suggested that a contrary rule -- one under which a public official charged with a ministerial duty would be free to make up his or her own mind whether a statute is constitutional and whether it must be obeyed -- is necessary to protect the rights of minorities. But history demonstrates that members of minority groups, as well as individuals who are unpopular or powerless, have the most to lose when the rule of law is abandoned -- even for what appears, to the person departing from the law, to be a just end.42 As observed at the outset of this opinion, granting every public official the authority to disregard a ministerial statutory duty on the basis of the official’s opinion that the statute is unconstitutional would be fundamentally inconsistent with our political system’s commitment to John Adams’ vision of a government where official action is determined not by the opinion of an individual officeholder — but by the rule of law.

42 The pronouncement of Sir Thomas More in the well known passage from Robert Bolt’s A Man For All Seasons comes to mind:

‘Roper: So now you’d give the Devil benefit of law!

‘More: Yes. What would you do? Cut a great road through the law to get to the Devil?

‘Roper: I’d cut down every law in England to do that!

‘More: Oh? And when the last law was down, and the Devil turned round on you -- where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast -- man’s laws, not God’s -- and if you cut them down -- and you’re just the man to do it -- d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.’ (Bolt, A Man for All Seasons (1962) p. 66.)

[Note: The links above to the Court's opinion will expire in approximately 120 days; the opinion should still be accessible thereafter by substituting "archive" for "documents" in the URL.]

Rendering the Electoral College Academic [Updated]

In his latest for Slate, Timothy Noah calls for abolition of the Electoral College in the selection of the President. That thought has been on my mind these past few days, but for different reasons than any mentioned by Mr. Noah (though I think his are pretty good).

I object to the Electoral College at this point for purely selfish reasons: I live in California, a state that in electoral terms is a foregone conclusion. The state has such a decided Democratic (or Democratic-leaning) majority at this point -- at least in part due to the extreme incompetence and tin-eared nincompoopery of the state Republican Party's leadership in the past few decades -- that it is virtually beyond question that Californians will choose to direct all of the State's electoral votes to Senator Kerry, and by a large margin. (As a reminder: Governor Arnold Schwarzenegger is the only ostensible Republican [he seems a fine example of Republicanism to me, but the more socially conservative strains in the party at large look at him askance] holding statewide office, and he only obtained that position through circumstances that, though legitimate in my view, were undeniably freakish.)

The upshot of this single-party dominance: if come November, as I am still inclined to do, I cast my vote in favor of the reelection of President Bush, my vote will count for precisely nothing in the selection of the next President. The winner-take-all electoral system will treat that vote, and every other California vote for anyone other than Senator Kerry, as if it did not exist. By gum, the Founding Fathers have disenfranchised me and I don't like it!

I actually moaned and groaned about this issue in passing nearly a year ago, during the gubernatorial recall campaign. In this post commenting on the 9th Circuit's en banc decision to allow the recall to proceed -- despite the ACLU's statistical argument that unreliable punchcard equipment could preclude the count of as many as 40,000 legitimate votes -- I wrote:

It is right and proper to be concerned, as the ACLU was, that 'every vote should count.' But that concern cannot blind us to the way that elections actually work. Elections are by definition a zero-sum game: for each candidate who prevails, every other candidate must lose. In the end, the only votes that individually 'count' -- that actually affect the big-picture outcome -- are the votes equal to the number by which the winner’s total exceeds the totals of the losers. Every other vote ceases to count when it is cancelled by a countervailing vote for some other candidate. (And if you throw in the federal electoral college system, the losing candidate’s votes count for even less. No one who voted for George W. Bush in California had any say whatever in the selection of the President, because California’s electoral votes went 100% for Al Gore, as they would have done had Mr. Gore’s total in the popular vote exceeded Mr. Bush’s by even one.) So, each voter who voted in favor of the winning candidate can indulge in the fiction that his or her individual vote was one of those that actually produced his candidate’s victory; the losing candidate’s voters are all effectively nullified, like subatomic particles meeting their opposites, and 'count' for nothing.

(Emphasis added.) Even a proportional allocation system, in which a given state's electors were appointed in proportion as the candidates finished in the popular vote, would be an improvement, but if we move in that direction there is no particular reason not to go the whole way, eliminate the "rough justice" of even a proportional system by going straight on to direct election. "One voter, one vote" is good enough for every other office, it should certainly suffice for the Presidency.

As an added bonus -- or a caveat to be careful what you wish for -- we Californians and the citizens in other electorally lopsided states would finally get the candidates' attention again for some purpose other than our cash contributions. (Senator Kerry has received contributions from my fellow Californians beyond the dreams of avarice, enough to buy small state outright or at least to afford another posh vacation home. But is he required to care about us if elected? Nope: we're too much the sure thing for him.) Right now, California is so very "not in play" that our airwaves are essentially free (free!) of advertising for either candidate. All the advertising dollar are being spent in those "battleground states" of which we hear so much. I demand my opportunity as an American to be as wearied by the process as the Ohioans.

So count me in on this quixotic bandwagon and let us join together to demand that our Congress consider a Really Useful amendment to the Constitution for a change: It is high time to tell the Electoral College that "School's Out."

[There. Now I feel better.]

Update [8/23/04]:

Comment -- from both sides of the Red-Blue Divide -- on the Electoral College in general and a proposed reform measure pending in Colorado at The Southern California Law Blog and TalkLeft.

All the Wines That's Fit to Ship

Apropos of wine and the law: Professor Bainbridge, well known savant of the grape, provides a number of useful links to discussions of the legalities of interstate shipment of wine. Many states that freely permit shipments to individual consumers from wineries located within their borders prohibit out-of-state wineries from shipping wines across their borders. These laws -- which are often rationalized as protections against minors obtaining alcoholic beverages but which actually operate to restrict adult consumers' choices and to protect entrenched local distributorships -- are ostensibly authorized under the 21st Amendment (which repealed Prohibition), even though they conflict directly with the usual rule that individual states cannot go messin' with interstate commerce. The issue has been building for years, and may finally come to a head when the U.S. Supreme Court considers two cases in its coming term.

More on this subject can be found at the wine industry sponsored Free the Grapes!

Off Topic: Although this purports to be my "political" weblog among other things, matters political seem to have migrated temporarily to my other, "legal" weblog. There's more to be had there on the Kerry-Edwards campaign's approach to medical malpractice, including Senator Edwards' mysterious promise of tax breaks for doctors who pay high malpractice insurance premiums.