Leonard Link

New York Philharmonic Memorial Day Concert at the Cathedral of Saint John the Divine

Thanks to the beneficence of the Anna-Maria and Stephen Kellen Foundation, the NY Philharmonic performs a free concert at the Cathedral of Saint John the Divine in the evening on Memorial Day.  This has become an annual ritual of some significance in New York.  Many years ago, I can recall standing on a long line to get in, ending up toward the rear of the cathedral, and discovering I could hear only snatches of the music when the dynamic level rose above a forte.  Otherwise, just a distant blur of sound. I vowed not to bother coming back, and so have not been attending for the intervening years.

This year, the Philharmonic offered to patron donors the opportunity to sit in a reserved section toward the front, so I decided to take the plunge.  I've just come from the concert.  The program, conducted by Alan Gilbert, consisted of Aaron Copland's Fanfare for the Common Man, Josef Haydn's Symphony No. 49 (La Passione), Schubert's "Unfinished" Symphony in B Minor, and Beethoven's overture to Egmont, Op. 84.

The cathedral space is enormous and enormously resonant with a long time delay.  The orchestra played on a flat platform in front of the pulpit.  I was seated about ten rows from the stage, just right of the center aisle.  From my vantage point, the Copland sounded absolutely magnificent.  Those big drum beats at the beginning were just explosive, expanding to fill the space with incredible drama, and the brass, although sounding slightly puny by comparison and a bit distanced (I think they should have used stadium seating for the orchestra), eventually adjusted to the space and really filled it to a thrilling extent.  This was, as a musical experience, possibly the high point of the performance - for the simple reason that nothing else on the program was conceived to be played in this kind of a space.

In the Haydn, we had Lionel Party and his harpsichord for the continuo.  I take it on faith that he was playing.  From where I sat, you couldn't tell.  And the harmonies of the music were twisted out of shape from the long delay of the hall, wind solos sounding slightly late (although I'm sure the musicians were faithfully following Gilbert's beat), and the balances terribly skewed.  Fast movements in Haydn include lots of scalar passages rushing about, but in this acoustic they were a smudge.  I thought the Haydn the least effective performance, and the idea of playing this piece in this space utterly misconceived.

The Schubert was slightly better, if only because there are moments when the long hall delay was less harmful due to the slower harmonic motion of the music, but woodwind solos again produced strange effects as notes hung in the air to clash with the following notes.  Gilbert took the second movement at a brisk walking pace, probably effective in the concert hall, but I thought in light of the acoustic here it would have been better to take a broader approach to this movement and give the tones a chance to fade and the moving parts a better chance to make their effect.  The end of the second movement, however, was quite effectively done.  And, overall, there was a certain eerie mystery to the music when projected through such a "swimmy" acoustic.  The introduction to the first movement, for example, had a wonderful mystery about it, but then the high woodwind solo tried to break through, seemed to lag... and the acoustic did it's dirty work.

Finally, the Egmont overture.  The blocky sort of orchestration in the first part was actually rather more effective than I was expecting, although again parts of the victory symphony at the end were heavily blurred.  On the whole, this came second to Copland in effectiveness.  I can think of other Beethoven pieces that might work effectively in this space - perhaps the 5th Symphony, for example, and certainly the Consecration of the House Overture.

I have to think that with more appropriate planning of repertory, the orchestra could make a better effect in this space.  While many of the big moments in all four pieces made a marvelous sound, too much of the music was lost in the acoustic swirl.  So, what could be played effectively in this space?

For one thing - music written to played in cathedrals.  Most of that is choral music. Berlioz, in his Requiem, knew how to write a piece to be played effectively in a large church.  Use the acoustic delay, calculate it into the music, and the entire thing works.  As for purely instrumental music, the slower specimens of Bach-Stokowski would probably work well in this space, or the slow movements from the Bruckner symphonies.  The Franck D Minor?  Perhaps bleeding chunks out of Wagner operas?  Vaughan Williams' Tallis Fantasia was written to be played by a large string orchestra in a cathedral, and the smudging effects of the long delay would just enhance the archaic sound of the piece.  After that, I think it would be good to jettison the idea of playing entire symphonies and just pick out movements that would work in that space.  I think the third movements of the Prokofiev 5th or the Rachmaninoff 2nd would sound superb - provided that risers are used to help the wind soloists along in cutting through the string body.  Perhaps some excerpts from Prokofiev's Romeo and Juliet Ballet.  And I think the Harris 3rd Symphony could be a blockbuster in this space, for the same reason the Copland fanfare worked so well.

But the best solution -- and it might build even greater cultural and popular interest in this event -- would be to hold a composition contest annually for a new piece of cathedral music.  Ask our innovative young composers to figure out how to write a piece that would effectively incorporate the acoustic of the cathedral, and I bet they would have a wonderful time with it.  Nico Muhly, for one, would be an ideal candidate for this kind of thing if one were doing a direct commission.  But a contest would be great fun as well.

At any rate, the very full cathedral audience seemed riveted on the performance and responded enthusiastically at the end.  It's hard not to respond enthusiastically at the end of the Egmont overture, and it's hard not to respond enthusiastically to the combination of Gilbert and the NYP. They were playing their hearts out up there, and visibly struggling with the acoustic at times.  But I think it is possible with some creativity to figure out a way to make this event more musically rewarding than it already is.

Decoration Day Music

Part of my ritual on certain holidays is to play music appropriate to the day, and each year on Memorial Day I try to take time to play "Decoration Day" by Charles Ives.  (Decoration Day is what this holiday was called during the post-Civil War era.)  Ives wrote this tone poem to describe a typical late 19th century Decoration Day observance: the hymn service in the church, the slow march to the cemetery, where taps would sound on the trumpet as the war veterans wept, and then a quick-step march back to town accompanied by the village band.  When I was first getting to know Ives's Holidays Symphonies back in the 1960s with the old Vox-Turnabout recording by Donald Johanos and the Dallas Symphony, this was the movement that first got my emotions up.  I would have a lump in my throat as the distant trumpet sounded taps, and would then be thrilled by the rousing brass band music.

Over the years, various newer recordings supplanted the Johanos effort in my esteem, and in recent years it has been David Zinman with the Baltimore Symphony that has been my mainstay. But this year I tried out the new recording by James Sinclair and the Malmo (Sweden) Symphony - and it's a winner.  This is the first one I've heard that seems to put that brass band in the proper context.  In earlier recordings, the brass band at the end overwhelms all the accompanying music.  Thrilling as it is, it seems not to be the effect Ives was striving for.  Sinclair embeds the brass band in the surrounding context, so one hears as well the noises of the crowd mingling with the band as everybody bustles back to town after the graveyard ceremony.  This seems more authentically Ivesian to me.  I have Sinclair's edition of the score for the Charles Ives Society, and the dynamic markings bear out his approach.  Of course, this edition had to be constructed from the sometimes inscrutable manuscripts of the composer.  Are the dynamics Ives's or Sinclair's?  The effect seems so true -- shades of the 4th Symphony's second movement, for example -- that I feel as if this must be what Ives wanted.

The rest of this disc is also stunningly interesting.  4th of July is not as zippy as the old Bernstein New York Philharmonic recording, but has plenty of energy to it, nonetheless, and the performance of Thanksgiving is first-class.  What gives the recording an extra edge are some first recorded performances of materials reconstructed from the composer's manuscripts, including a student Overture, another pictorial tone-poem "The General Slocum" describing the wreck of a pleasure craft, the Postlude in F, and the Yale-Princeton Football game "take-off."

The Malmo Symphony plays like champions, and the local chamber chorus sings with fervor in the Thanksgiving finale.  This is a real Naxos bargain.

Cataloguing the Collection - May 2010 Additions

Here are some recordings that I catalogued into my recording collection during the last few weeks of May.  I don't catalogue a recording until I've listened to it, and sometimes a new acquisition can sit on the shelf for quite a while until it gets a spin, so these are not necessarily all very recent releases.

Eight Visions: A New Anthology for Flute and Piano, by Marya Martin & Colette Valentine.  This collection includes music by Kenji Bunch, Paul Moravec, Chen Yi, Tania Leon, Eve Beglarian, David Sanford, Melissa Hui, and Ned Rorem.  It is a delightful, relaxing release on the Naxos label, recorded in December 2007.

Athenaeum Quartet of Mannheim plays String Quartet No. 4 by Mordecai Seter and String Quartet by Paul Ben-Haim.  I have a continuing fascination with concert music by Israeli composers, and ordered this from CDBaby.com.  This is a live concert recording from December 1998 in Heidelberg, Germany, and the sound quality is rather raw.  The pieces are interesting, however.  For the specialist, not the general collector.  The name of the label is Ars Sonandi.

Morimur - a speculative program on music by J.S. Bach performed by Christoph Poppen and The Hilliard Ensemble.  The idea behind this program is that Bach's famous Partita in D Minor, BWV 1004, for unaccompanied violin, incorporates thematic references to several chorales.  Poppen, a baroque violin specialists, plays the movements from the Partita interspersed with performances of the chorales by The Hilliard Ensemble, an ensemble of four voices on this occasion: Monika Mauch (soprano), David James (countertenor), John Potter (tenor), and Gordon Jones (baritone).  The idea is interesting, the program provocative, and the execution as part of the ECM New Series label is typically flawless.  The recording was made in 2000.

Palestrina Masses: O rex gloriae & Viri Galalei.  Hyperion has been reissuing some of its finest early digital recordings on the Helios mid-price label.  These performances from 1988 by James O'Donnell and the Choir of Westminster Cathedral make a fine program.  Before each mass, they perform the motet that provides some of the thematic material and gives the mass its name.   It was a common practice during the 16th century to construct mass settings using thematic material from motets, and sometimes a composer would pay tribute to another composer by using his motet as the basis for a mass, but in this case Giovanni Pierlugi da Palestrina used his own motets as resource material.

Luis de Freitas Branco: Symphony No. 2, After a reading of Guerra Junqueiro, Artificial Paradises - Alvaro Cassuto conducting the RTE National Symphony Orchestra of Ireland.  It may seem strange that the music of a 20th century Portuguese composer would be recorded by an Irish orchestra, but such as the ways of the modern recording industry.  This is part of a series by Naxos to document all the major orchestral works of Freitas Branco, an excellent composer who was active during the first half of the 20th century.  His music is tonal, dramatic, beautifully orchestrated, and worth getting to know.  According to the Naxos notes, the tone poem Artificial Paradises was inspired by De Quincy's Confessions of an Opium Eater, and is "regarded as Freitas Branco's masterpiece."  For the adventurous....

Mieczyslaw Weinberg's Cello Sonatas, performed by Dmitry Yablonsky, with Hsin-Ni Liu playing the piano in the duo sonatas.  This Naxos release includes the Sonatas for Cello and Piano No. 1, Op. 21, and No. 2, Op. 63, and the unaccompanied Cello Sonatas No. 1, Op. 72, and No. 3, Op. 106.  Weinberg was a friend and colleague of Dmitri Shostakovich, who considered him one of his outstanding contemporaries.  He was Polish-born, but fled to the Soviet Union when the Germans invaded Poland in 1939, and spent the remainder of his career there.  He became part of the musical circle around Shostakovich, and endured some of the same oppression from the regime, his problems being multiplied by being both Polish-born and Jewish.  His music is gorgeous, and is undergoing a substantial revival of interest in the west.  Chandos is busy recording his symphonies, and Naxos has taken up the chamber music.  Yablonsky, who emigrated to the United States in 1977 to study at the Juilliard School, is perhaps better known to Naxos fans as a conductor.  His cello playing here is passionate.

A Felix Slatkin Compendium, from Pristine Audio.  Pristine Audio is a French-based label founded and directed by British audio expert Andrew Rose, that specializes in digitizing and releasing on CD and for digital download historical classical recordings that are otherwise unavailable to collectors, usually because they date from the Lp era and have not been reissued by the labels that originally produced them.  Due to the way copyright laws work in Europe, these are out of copyright and can be produced there without paying royalties to the original owners of the sound recording, but can't be marketed directly in the U.S. because of common law copyright issues here, that were highlighted in a lawsuit brought by EMI against Naxos for its historical releases of old recordings by Yehudi Menuhin and Arthur Schnabel.  (Naxos continues to issue those in Europe, but if you want them in the U.S., you'll have to order them from a European website.)  Pristine releases are available from the company's French-based website.  If you want actual discs, they will burn them to your order and ship them out promptly.  I've found the service excellent.  This is a 2-cd release of recordings conducted by Felix Slatkin, father of conductor Leonard Slatkin, who was a popular recording artist during the 1950s, making many recordings with the "Concert Arts Symphony Orchestra," a studio orchestra assembled for recording purposes by Capital Records.  This is a wonderfully varied program.  Dohnanyi's Variations on a Nursery Theme (soloist Victor Aller, Slatkin's brother-in-law), Khachaturian's Piano Concerto (Leonard Pennario), Britten's Young Person's Guide to the Orchestra (without narration), Villa-Lobos's Bachianas Brasileiras Nos. 1 & 5 and the same composer's orchestration of J.S. Bach's Prelude & Fugure No. 8 in Eb minor, with the "Concert Arts Cello Ensemble" and the great soprano Marni Nixon singing in BB #5, the Toccata for Percussion by Chavez, and the Percussion Concerto by Darius Milhaud.  Felix Slatkin was an exciting conductor, and top-rank movie studio musicians were recruited to make these recordings in state-of-the-art sound for the time.  Some of these are early stereo.  This is a real prize among Pristine's many terrific releases.

Sviatoslav Richter performs first piano concerti by Tchaikovsky, Prokofiev, and J.S. Bach.   Back in the 1960s when I first began collecting classical LPs, there were two Supraphon (Czech) releases that I especially treasured: Sviatoslav Richter's recordings of the Tchaikovsky Piano Concerto No.1 (Karel Ancerl conducting the Czech Philharmonic), and a coupling of the Prokofiev Piano Concerto No. 1 (Ancerl and the Prague Symphony Orchestra) and J.S. Bach's Keyboard Concerto No. 1, BWV 1052, in D Minor (Vaclav Talich and the strings of the Czech Philharmonic).  The recordings were from early in Richter's career - 1954 - before he became known in the West, and can't be surpassed for sheer excitement.  The Prokofiev, in particular, is full of humor and virtuosic display.   The recordings have been reissued in inferior sound off and on over the years, but a new Supraphon Archiv release bringing all three together on one 70 minute CD provides the best sound I've heard for these performances.  This is a mandatory acquisition for Richter fans, of course.  Forget about musicological niceties in the Bach Concerto - Just sit back and luxuriate in the big string orchestra accompaniment and Richter's extraordinary ability to project the nobility of Bach's music and especially the calm pathos of the adagio.

The Beethoven Project Trio - Cedille Records.  I've already blogged about this so will mention it only briefly.  This is the first in a contemplated series of all Beethoven's music for piano trio (piano, violin and cello).  This first release is made up of pieces originally written for other combinations of instruments and later rearranged for piano trio by the composer, as well as unfinished early works.  I found the performance extraordinary and the insights into the young Beethoven very enlightening.  The performers are George Lepauw (piano), Sang Mee Lee (violin), and Wendy Warner (cello).

York Bowen piano music, volume 4, by Joop Celis (Chandos).  Celis, an excellent Dutch pianist, has been working his way through the piano music of York Bowen (1884-1961), a British composer who produced sonatas, partitas, suites, and short character pieces in profusion.  The music is delightfully refreshing, romantic, tuneful, and worth getting to know.  A recent release by Hyperion of the complete Bowen sonatas played by Danny Driver is also worth getting to know, but the Chandos series has the virtue of mixing different genres to provide a balanced and varied program on each disc, and the sound quality is excellent.

Offroad - Music for Trombone performed by NY Philharmonic bass trombonist James Markey with pianist Virginia Perry Lamb.  Markey, formerly principal trombone in the Pittsburgh Symphony Orchestra, joined the New York Philharmonic in 1997 as associate principal trombone and now holds down the fort at bass trombone.  He also teaches at the Juilliard School and N.Y.U., and has taught at various other schools.  He's put together an interesting recital program here including -- as one might expect, given the limited repertory written directly for his instrument -- quite a few transcriptions.  This 2003 recital includes music by Shostakovich, Malcolm Arnold, Percy Grainger, Robert Schumann (yes, oboe music can transfer well to the trombone), Neal Harnly and Folke Rabe, and Markey's own set of variations on Camptown Races for a rousing closer.  This is a self-published recording by Mr. Markey, available through CDBaby.com, and worth seeking out for trombone fanciers, or anyone who enjoys the sound of brass!

Beethoven Piano Concertos Nos. 4 & 5 - Till Fellner, Kent Nagano, Montreal Symphony.  I rarely buy new recordings of standard repertory, but the reviews I'd read of this very new release excited my curiosity.  Till Fellner plays these pieces with elegance, restraint, awe-inspiring technical precision, and deep affection.  He really animates the music, and Nagano and the Montreal Symphony provide a fine collaboration.  This is not a case of piano vs. orchestra, but rather an almost chamber-music-like collaborative approach, and it works very well in the 4th Concerto.  Some may feel the more monumental 5th Concerto a bit lacking in heroics, but I found the unusual approach very satisfying.  ECM provides a warm frame from a live concert recording made in Montreal in May and November 2008.  I hope they are planning to follow up with the first three concerti and the choral fantasy.  I would especially anticipating what Fellner and Nagano would do with the finales of the first two concerti, both of which would work very well with the kind of interpretive approach they are using here.

Before Night Falls - Opera Premiere in Fort Worth

I've just come from the Bass Performance Hall in Fort Worth, where I attended the staged premiere of my friend Jorge Martin's opera, "Before Night Falls," based on the memoir by Reinaldo Arenas.  I can't be unbiased about this, of course, because I've known Jorge for many years and have heard some earlier incarnations of this material, but I can say that I found this to be a totally gripping musical theater experience.  The singers, the conductor, the orchestra, the chorus, the sets, the production.... everything came together to make this an overwhelming experience.  Martin's music sticks in the memory.  He really rises to the big moments in the score, and the libretto he fashioned with the assistance of Dolores M. Koch, who was Arenas's translator, is superb as well.

I was prepared to be impressed, because I had heard the cantata, Stronger Than Darkness, that Martin fashioned out of some of this material for the Monmouth Civic Chorus a few years ago, so I already had some familiarity with the musical material.  But that was an abbreviated concert performance, about 40 minutes out of a full-length opera.  (The performance tonight began about ten minutes after 8 and finished up at about 10:50, with an intermission of about 15-20 minutes between the two acts.)  Martin's use of the orchestra is sure, the pacing is superb, the dramatic arc of the two acts is unerring, and there are some arias, duets and trios that are just stunning in their emotional effectiveness.  He has managed to make a transformative ending out of what could have felt like a terrible tragedy, and he has managed to make Reinaldo Arenas come alive in a new way -- different from the memoir, different from the very fine film.  One must experience all three, to experience the poet's language, to appreciate the extraordinary assumption of the role by Javier Bardem in the movie, and then to experience the extraordinary combination of artistic contributions of an opera.

So, the creative team must be acknowledged here.  Director David Gately, Conductor Joe Illick, Scenic Designer Riccardo Hernandez, Costume Designer Claudia Stephens, Makeup and Wig Designer James P. McGough, Lighting Designer Harry Frehner (especially the lighting designer, whose contribution to the staging was enormous), Projection Designer Peter Nigrini, Choreographer John de los Santos, Fight Choreographer Jeremy Stein, and on and on and on.... 

And the cast for this production.  Wes Mason totally mastered an extraordinarily demanding role.  Reinaldo Arenas, the central character, is on stage throughout the opera and sings in virtually every scene.  This is a marathon for him, and he nailed it totally tonight. 

The supporting cast were all worthy of the occasion as well.  As the two muses of the poet, the sea and the moon, Janice Hall and Courtney Ross were exquisite, and Hall was additionally touching in early scenes as Arenas's mother.  Jesus Garcia was deeply affecting as well as Ovidio, a composite character to represent the older Cuban poets and writers who were Arenas's mentors.  Javier Abreu and Jonathan Blalock were superb as Arenas's friends and companions, and Seth Mease Carico portrayed all the necessary menace as Victor, the ardent Revolutionary who becomes Arenas's persecutor.  Corey Trahan rounded out the cast superbly in the comprimario roles of the port official and visa official. 

And the Fort Worth Opera Chorus, prepared by Stephen Dubberly, and the ballet members made an extraordinary contribution.  The chorus is like a character in this opera, and the dancers for the beach scenes were breathtakingly good.  And, amazingly, Wes Mason fit right in with the dancers and participated with a degree of athletic vigor one would not expect from a leading singer, as did Javier Abreu in that early beach scene.  I was actually a bit concerned about Mason's participation in the strenuous acrobatics of the beach scene so early in the opera, thinking that I would be hesitant to risk a physical injury to my lead singer...  But he did it with style and apparent ease.

There were Spanish and English surtitles.  The opera was sung almost entirely in English, with just a few Spanish words here and there.  The English surtitles were prepared by Keith A. Wolfe, the Spanish surtitles by Gabriela Lomonaco.

I felt like a part of history tonight, attending the unveiling of a new operatic work that deserves to take on a life going forward.  I hope many other opera companies rush to pick this up, especially the NY City Opera, which would be a logical company to put this on and, given the subject matter and the high quality of the work, I expect it would be a real "hit" in New York. 

Victoria!

Prince of Persia - the movie

After arriving in Fort Worth yesterday afternoon and looking around a bit downtown, I decided to finish off the evening by going to see Prince of Persia.  Despite the mixed reviews I've seen, I can't resist the chance to watch Jake Gyllenhaal dashing about in the desert....  And that's about what this movie presents: Jake Gyllenhaal, apparently in spectacular shape unless CGI was liberally applied to his torso, dashing about in the desert.  The plot is some fairy-tale about a hand sword with a time reversal button -- the gimmick -- and Jake gets to make google eyes (but not do much kissing or anything else, this is PG) with an exotic Middle Eastern princess with a sharp tongue).  The cast is super energetic, the visual effects are stunning at times, the pace is fast and furious, and your attention won't wander.  But don't expect depth here, as this is just Disney summer entertainment.

Le Grand Macabre at the NY Philharmonic

This is my week for opera premieres.  On Thursday night, I attended the first NY performance of Ligeti's spectacular operatic fantasy, "Le Grand Macabre," at the NY Philharmonic.  And tonight I will attend the world premiere of Jorge Martin's "Before Night Falls" at the Fort Worth opera.

"Le Grand Macabre" is prime evidence that the NY Philharmonic made the correct choice in inviting Alan Gilbert to be their musical director.  The NY Philharmonic, as America's first major permanent symphony orchestra, should be the leader in bringing new music to the concert public.  Even though this is a belated premiere (the piece originally dates from the mid-1970s, and was performed in a revised version from 1996) of a piece whose composer passed away a few years ago, it is apparently the first American concert staging, following a single opera house staging some years ago in San Francisco.  Putting an extension on the stage and adding complex machinery to project live action and miniature sets on to a big circular screen looming over the orchestra, and presenting extraordinary costumes for the performers, this production by Doug Fitch lacked nothing in theatricality.  Despite the presence of a somewhat reduced NYP on the stage, this had the feeling of a staged operatic performance.

The story is a bit nonsensical, and I had the feeling at times of Monty Python, because of the elements of slapstick in the choreography.  The performers were, each and every one, spectacular.  This was not on my subscription, but a friend and I had secured tickets after attending the City Opera's production of Handel's "Partenope" and being totally taken by the young countertenor, Anthony Roth Costanzo.  Our subsequent research revealed that he would have a leading role in this production, so we quickly secured tickets.  Mr Costanzo's part appears only after the intermission, but it is extensive, and he was captivating.  So the man can sing both Handel and Ligeti with authority - a fascinating mix.

I understand Mr. Gilbert has chosen something a bit less esoteric for next year's opera in concert - some Janacek that has been presented staged in New York.  But I hope he will be encouraged by the rapturous response of the New York concert growd (the performances are sold out, and the audience response last night was frenetically enthusiastic) as a sign that he can be more adventurous in subsequent seasons.

Federal Court Rules Against Wisconsin in Transsexual Prisoner Cases

Chief U.S. District Judge Charles N. Clevert, Jr., issued two lengthy opinions this month rejecting the state of Wisconsin's stance on medical treatment for transsexual prison inmates.  In one case, Fields v. Smith, 2010 Westlaw 1929819 (E.D.Wis., May 13, 2010), Judge Clevert provided the detailed discussion promised earlier in a short order he had issued finding that the state had violated the 8th and 14th Amendment rights of transsexual prisoners by legislating that such prisoners could not be provided with hormones as a treatment for their gender identity disorder.  In the other, Konitzer v. Frank, 2010 Westlaw 1904776 (E.D.Wis., May 10, 2010), the judge rejected the state's motion for summary judgment as to all but one of the claims asserted by a transsexual inmate concerning the refusal of prison authorities to allow the inmate to live as a woman, the lone exception being the judge's determination that the inmate's constitutional rights would not be violated by the prison adhering to a requirement that the inmate only be subjected to strip and pat-down searches by male corrections officers.

The coincidence of the two opinions being issued within days of each other is easily explainable by the practicality of the court ruling preliminarily that the challenged state law, Wis. Stat. sec. 302.386(5m), also known as Act 105, was unconstitutional as a prelude to ruling on the pending summary judgment motion in the Konitzer case.  Once that was done, it made sense to release the two opinions almost simultaneously, as they contain a virtually identical discussion of the case law on constitutional treatment rights of transsexual prisoners, an important segment of both opinions.

The bottom line here is that Judge Clevert seems to "get it," to understand as a result of the careful study of detailed expert testimony offered in both cases (by many of the same experts) that gender identity disorder is a serious medical condition calling for individualized treatment which may need to include hormone therapy and may need to include allowing the individual to live as a member of their preferred gender, depending upon how "severe" is the discordance between the individual's gender identity and their body. 

Thus, a state law categorically ruling out a treatment that medical experts consider to be necessary for some transsexual individuals, depriving prison health officials of the ability to prescribe the treatment that they believe to be appropriate for the inmate, would constitute deliberate indifference to a serious medical condition in violation of the 8th Amendment.  Judge Clevert rejected the state's argument that as long as they were providing some treatment, they were not guilty of deliberate indifference.

Furthermore, since the Department of Corrections is allowed by state law to offer hormone therapy to inmates for other conditions, but just prohibited from providing such therapy "in order to alter the person's physical appearance so that the person appears more like the opposite gender," the court found an Equal Protection violation, because Judge Clevert was not persuaded that the state had met the rational basis test of providing a legitimate penological reason for withholding from one group of inmates a medical treatment that was made available to other inmates.  The state's main justification articulated in support of its summary judgment motion concerned safety issues around "feminized" inmates in male prisons, but this was a nonsense justification when the state provided no evidence that there had been a serious safety problem prior to the enactment of the law.  That is, the law was not enacted in response to a documented problem, but was rather a politically motivated response to adverse press commentary about state funds being used to support gender transition for prison inmates.

The Konitzer case was the more interesting one to read, partly because it was apparently local press publicity about Konitzer being provided hormone therapy that had led the legislature to pass the challenged statute.  Prior to that statute, Wisconsin's prison system had followed a course similar to many others, providing that persons who were already receiving hormone therapy for gender identity disorder prior to incarceration would be continued on their hormones provided appropriate documentation was in order, and that those seeking such therapy after being incarcerated would be dealt with on an individual basis, with decisions being made by a medical review committee in line with the Standards of Care specified by the Harry Benjamin International Gender Dysphoria Association's published standards, now in their 6th version.  Konitzer had been receiving hormone treatments pursuant to this policy, but rather inflexible prison rules were invoked to prevent correctional officials from calling her by her preferred name, or allowing her to wear feminine underwear and a bra or to use make-up. 

When Act 105 was enacted, prison officials began to wean transsexual inmates off their hormone therapy, with predictably adverse effects on their physical and mental health.  A preliminary injunction issued in the case challenging the statute required the state to resume hormone therapy for inmates who had been receiving it, which generally reversed the ill effects of discontinuance.

Judge Clevert was persuaded by plaintiffs' experts in Donna Dawn Konitzer's case that the arguments being made by the Department of Corrections were not sufficient to justify granting summary judgment to the state - with the exception noted above about the searches.  Indeed, Clevert found that the state's own expert on prison security actually provided more support for Konitzer's position than for the state's, since he testified about another state prison system that allowed transsexual inmates to live in their preferred gender without the security and safety problems that the state provided as its rationale for denying such treatment for Konitzer.

Because the ruling in the Konitzer case was responding solely to defendants' motion for summary judgment, there is not yet a final judgment in the case, but it seems unlikely that the State's Department of Justice, upon analyzing Clevert's strongly worded opinion rejecting their motion, would want to prolong this case with further litigation on the merits.  Even if they were to come up with a new expert on security and safety who would testify in support of their arguments, they would then have quite a credibility problem, since the expert they used in support of their motion is one of the nation's leading consultants on prison security.  The ruling in Fields is, of course, a final ruling on the merits.  Judge Clevert indicated that the "specific language of the injunction" that will be issued to enforce the court's order will be determined at an upcoming status conference.  This will be interesting to see, because Act 105 prohibits both hormone therapy and sex reassignment surgery, but Clevert's ruling only pertains to hormone therapy, since that was the specific issue posed in the challenge.  Thus, it seems likely that the final injunction will only strike the portion of Act 105 dealing with hormone therapy, and the ban on state funding of sex reassignment surgery (or surgery generally to enhance gender appearance) will probably stand.

International Association of Law Schools Annual Meeting and Conference in Milan, Italy

The International Association of Law Schools held its 2010 Annual Meeting and associated conference – this year on Labor Law and Labor Market in the New World Economy – at the University of Milan on May 20-22. I attended as the New York Law School delegate, having been invited by my dean to attend because of the subject matter of the associated conference, as I teach Employment Law and Employment Discrimination Law.

This was a fascinating event to attend. Not only was it my first trip to Italy and to Milan, but it was really my first opportunity to attend a meeting of legal educators in which I would be in the distinct minority in terms of ethnicity and legal culture, so it was a grand learning opportunity. The language of the conference was English.

The conference began on Thursday afternoon, after an extended period of greetings from many and sundry local luminaries (including a representative of Fondazione Cariplo, which provided important funding support for the conference), with a panel discussion focused on "Labor and Global Economies," a broad topic that translated to the impact of globalization on working conditions in various countries and the ways in which labor and employment law have fallen short in protecting the interests of workers in various situations. The panelists were from India, Germany, and the U.S., and an Italian professor who chaired the local organizing committee moderated the program. After the panelists had spoken and responded to some questions from the audience, we broke into assigned small groups, and this is where I think the most interesting part of the conference resided – the small group breakout meetings. I was the only member of the small group from the United States. The others in my small group included law teachers from South Africa, Australia, Canada, Indonesia, Jordan, China, and India. A few of our assigned group members had not yet arrived for the conference, and some would never arrive, due to visa complications among other things. We had a lively discussion comparing the legal frameworks in our countries as applied to migrant workers and the impact of outsourcing on our working classes.

After the breakout session, we had a break of a few hours before reassembling in front of the University for a brief walking tour to the site of our evening dinner, which was sponsored by the Fondazione Centro Nazionale di Prevenzione e Difesa Sociale - don’t ask me for a translation- which was held at the Societa del Giardino, a private club in a magnificent old building. The meal was sumptuous, and was punctuated before the dessert with an address from Tiziano Treu, an Italian Senator who had served as Minister of Labor in several governments and has occupied a prominent place in Italian labor policy, who delivered a pessimistic talk about the situation for workers in the current economic situation. 

On Friday, the morning panel was devoted to the topic of "Labor and Fundamental Human Rights: Is ‘Discrimination Law’ Doing the Job It Is Supposed to Do?" We had speakers from the International Labor Organization and from law schools in Argentina and South Africa, moderated by a British professor, followed by a breakout session. The focus was on the different employment discrimination law regimes around the world, and the difficulties of enforcement.

There is some question in my mind how one should evaluate the effectiveness of employment discrimination law. The price of admission to this conference, in addition to the registration fee, was to submit a short paper addressing one of the panel topics, and I had chosen this topic. In my paper, I suggested that Employment Discrimination law may serve many different purposes, and that at least in the U.S. it seemed to me that it served some of them very well and some of them quite poorly. I commented that if the purpose is to eradicate employment discrimination, then the discrimination laws in the U.S. are a failure, but if viewed from other angles they have achieved varying degrees of success, especially in terms of stimulating the development of governmental and corporate non-discrimination polices, and substantially reducing the amount of overt workplace discrimination. On the other hand, it is difficult to evaluate the results if one focuses on reported court decisions, which represent only the tip of the iceberg in a system that is designed to dismiss or settle the overwhelming majority of cases in administrative or arbitral proceedings that never get reported in the court statistics. I suggested, perhaps to be provocative, that employment discrimination law may be helping more people than we realize when we consider the number of cases that get settled short of litigation. All the papers submitted for this conference are available on the website of the International Association of Law Schools and were printed in the conference book, but - surprisingly to me - were not the subject of any direct discussion at the conference. Some of the others who submitted papers on this topic tended to judge the effectiveness of Employment Discrimination law by focusing particularly on the intractable wage gap between men and women in the workplace. I must concede that the statistical picture suggests that sex discrimination law has been unsuccessful in eliminating this gap, although some of the articles I’ve read elsewhere suggest that law could have only a limited impact here without significant social changes.

After a fine buffet lunch served in the impressive outdoor courtyard of the university (which is housed in an ancient hospital building that was turned to use as a university in the 1920s), we had a panel titled "Labor and Society: The Maintenance of Family Economies and the Marketplace," in which the topic, addressed by speakers from Canada, Germany and the U.S., focused on the degree to which employment law has facilitated the ability of women to participate fully in the workforce while also acting as mothers. So the focus was very much on the degree of flexibility or lack of flexibility in different employment law regimes, and the relative willingness of lawmakers in different jurisdictions to realize the necessity of accommodating the family needs of employees in order to facilitate equal workplace participation. This session was also followed by breakout groups. Although the personnel of the breakout groups were to be "fixed" for the duration of the conference, there was some shuffling around and also some late arrivals emerged, so by this afternoon session, our group had taken on a slightly different composition, which added a welcome variety to the discussion. There seemed to be widespread agreement that the costs of child-raising should be subsidized by the state to help make it possible for women to have fuller workplace participation, and that more encouragement through legal policy should be given to men to assume a more significant role in childrearing.

We were told that the evening would feature a reception hosted by the University, and the advance materials suggested this would be on the order of a stand-up cocktail party with sufficient appetizers for those who wished to make a meal. In the event, I guess a decision was made and/or funding located to make it a full dinner, as tables were provided in the university courtyard and the traditional four courses of an Italian dinner were served, similar to the prior evening: an appetizer course, a risotto course, a meat course, and a dessert table. There were some speeches from university faculty prior to the dessert course, which was dramatically interrupted when one of the panel speakers from the afternoon session fainted and hurt herself on the cobblestone flooring, and an ambulance had to be called. (She had revived quickly, but prudence dictated calling for medical assistance, although I’m informed that she eventually declined such assistance and left on her own steam.) This intervention cut short a speech by the incoming chair of the university’s labor law department, and after a brief interval the assembled guests attacked the dessert table. These dinners were an essential part of the conference because they facilitated the opportunity to get better acquainted with lawyers and law teachers from other countries. During the first three courses, I was sitting and chatting with law teachers from Nigeria and Canada, and conversing as well with an Italian lawyer who was present as the immediate past president of the alumni association of the University of Milan law department.

Saturday morning we turned to labor law teaching, with a panel titled "What You Teach and How You Teach It: Comparative Study of the Teaching of Labor and Employment Law." The panelists were delegates from China, Germany, and Australia, with the German delegate being presently engaged as a professor at an English law school, so we actually got a view of the topic from four national perspectives. In all of these countries, law is an undergraduate major rather than a graduate degree program as in the U.S. After graduation, these students will have further requirements of clerkship and practical education before they can seek admission to the bar, unlike the U.S. practice of a bar examination being administered shortly upon graduation with the law doctoral degree (JD) and no formal apprenticeship requirement. It seemed from the panel discussions that the focus of labor and employment law study in these countries is rather narrower than is common in U.S. law schools. Employment Discrimination, which is frequently a stand-alone course in the U.S., seems to be subsumed within a general labor law curriculum. The main curricular division seems to be between courses focused on industrial relations (i.e., the role of unions) and courses focused on individual rights, such as unfair dismissal law. Another significant difference is the degree to which labor law is constitutionalized in many other countries, whereas it is primarily statutory in the U.S. In any event, it was interesting to hear this discussion, although I was a bit critical about the omission of any representation of the Western Hemisphere from this panel. The conference organizers seem to have taken a conscious determination to avoid US domination of the conference - but I think there was little fear of that happening, as the number of delegates from the US was relatively small.

There were no breakout sessions following this panel. Rather, there was a refreshment break that stretched for more than half an hour as many animated informal conversations took place, and then reassembly for some plenary discussion of the teaching panel followed by a brief closing phase. Then there was a repeat of the buffet luncheon in the courtyard, after which the formal annual meeting of the Association took place. I was sorry that there was no breakout session after the teaching panel, as I thought it would have been very useful to get more perspectives from delegates from many different countries about the contents and methodologies of labor and employment law instruction. Limiting this part of the program to the three panelists unduly restricted the range of discussion, in my view.

The Annual Meeting of the IALS was primarily a business meeting, although the incoming president also provided for breakout sessions so small groups could do some brainstorming about future projects for the Association. The IALS is only five years old, and was formed out of a determination that there would be some value to establishing links among the legal educational community internationally in light of the impact of economic and political globalization on law. It is an organization still struggling to find its proper role on the world stage. So far the main accomplishments have been to sign up a significant number of law schools (188 at last count) and legal education associations as members, and to hold annual conferences in a variety of locations. But there is a feeling among the leadership that there needs to be more, especially as an incentive to get more law schools to join. The Association of American Law Schools (AALS) was a principal instigator in getting this organization started and provides the administrative and clerical backup, but there is a regionally-balanced international board of directors that conducts its business through conference calls and emails, and a determination to make this a truly international body and to avoid the possibility of the US dominating the organization. Conferences have been conducted in English, as the most widely used common language of law practice these days, which makes some barriers to participation because although English is a common language of legal education in much of the world, there are areas where English speaking and reading ability is less widespread. The result is that there is under-representation especially from Latino countries, and out of whatever personal pride, French legal academics have proved resistant to participating in conferences where they could not deliver their remarks in French and have simultaneous translation - or so I was told this was the reason for the lack of French law schools participating. I also noted no participation from the Scandinavian countries, and only slight representation from Eastern Europe. Even the Italian law schools seemed largely absent, despite the location of this conference. But there were delegates from Turkey, Jordan, Nigeria, Zimbabwe, a handful of South Americans (including the outgoing president of the IALS from Argentina), and many south and southeast Asian countries, for whom English was evidently not a big deterrent. Indeed, India, Malaysia and Indonesia seemed very well and eagerly represented.

The final part of the meeting was devoted to considering suggestions from the breakout groups about projects the IALS could undertake in the future that might attract more members and make the Association more valuable to its existing members. These were to be taken up at an executive board meeting on Sunday. Meanwhile, the Law School Admissions Council from the US is sponsoring a final reception tonight.

I thought it a very worthwhile conference to attend. I learned about a variety of approaches to labor and employment law issues in different countries, as well as the varied treatment of labor law in the legal educational systems, and made some interesting contacts with law professors from around the world. I hope to stay in contact with people with whom I had more extended discussions from Jordan, Nigeria, India, Canada, and Italy. And if the IALS embraces some of the suggestions discussed during the meeting today, there should be other interesting opportunities to be involved.

Next year’s annual meeting and conference will be held in Buenos Aires on April 14-16, 2011.

Federal Court Raps NYC Schools for Due Process Violation

U.S. District Judge Jack Weinstein has denied summary judgment to the New York City school system on a claim by a middle-school teacher that her constitutional rights were violated when she was suspended with pay from classroom teaching and suffered collateral consequences after parents complained to her principal that vulgar terminology was used in an HIV/AIDS education class that she conducted for middle school students. Judge Weinstein found in his May 20 ruling in Kramer v. New York City Board of Education, No. 09-CV-1167 (S.D.N.Y.), that no rule promulgated by the Board of Education had any clear application to the incident in question, that the rule initially cited against the teacher was clearly inapplicable on the facts, and that the rule subsequently cited in a letter to her by her principal also did not apply to the situation.

Perhaps most significantly, Judge Weinstein found that the most basic requirement of substantive due process, that a public employee not suffer adverse consequences under vague rules that would not inform a reasonably intelligent individual of what conduct is prohibited, had been violated in the teacher’s case. Furthermore, it appeared to the court that the lesson the teacher had presented was consistent with the school’s HIV/AIDS education curriculum, which actually encouraged teachers to "brainstorm" with students and to let students use vernacular language as part of the lesson to ensure that they understood the concepts necessary to appreciate which activities present risks of HIV transmission.

Weinstein noted that the language found to have been used during this lesson can also be found widely used in popular culture, by respected public figures, and in some cases even in books that are used in the school curriculum. He cited, ironically, a NY City Schools publication on recommended reading for middle school students that specifically listed some books containing the kind of language – even some of the disputed words – that were charged against the teacher in this case.

On the other hand, Weinstein granted the defendants’ summary judgment motion on all the other legal claims in the complaint, including First Amendment claims. The area of First Amendment protection for public school teacher classroom speech is in quite a bit of turmoil, especially since the Supreme Court’s decision in Garcetti v. Cebalos, taking the position that public employee speech within the scope of their employment duties is not protected by the 1^st Amendment because it is "official speech" subject to the control of the public employer. While the Supreme Court suggested in Garcetti that its analysis might not apply in the education context, due to academic freedom concerns, lower courts have been divided, both prior to and subsequent to Garcetti, about the degree of leeway that teachers in public institutions should have to speak in ways that their employers might not approve. While Weinstein found that traditionally public schools have been allowed to forbid speech that the authorities consider lewd or too sexually explicit, it was really not necessary to pursue the 1^st Amendment line since such a clear violation of due process was found in this case.

Actually, my reaction to the facts as recounted by Judge Weinstein is to condemn the school principal for failing to back up a senior tenured faculty member who had been conducting essentially the same HIV/AIDS education classes with her middle school students for many, many years. On this particular occasion, evidently, some students either mentioned the class to parents, or perhaps an inquisitive parent looked at his or her child’s notebook and saw the sexually explicit words written down. In any event, parents complained, and rather than making a reasonable inquiry and then backing up the teacher, the principal, perhaps afraid of a controversy among the parents or in the press, suspended the teacher from classroom work pending an investigation and, when the investigation showed that the words in question had been used, maintained the suspension for many months, affecting the teacher’s annual evaluation and eligibility for extra assignments that she had received in the past and that had become an important part of her income.

The principal made a knee-jerk reaction to avoid controversy, but in doing so trampled on the constitutional rights of a tenured public employee and has now earned the board of education a public shaming by Judge Weinstein and liability for damages to the teacher. Although the judge dismissed the teacher’s supplementary state law claim of negligent supervision for failing adequately to instruct the principal about respecting the due process rights of teachers for technical reasons of tort law, in the broader sense it seems clear to me from reading this opinion that the Education Department has inadequately trained at least this principal and possibly principals across the board in dealing with this sensitive issue.

Don Giovanni at Venice's La Fenice

I am in Milan, representing NY Law School at the International Association of Law Schools annual meeting, being held at the University of Milan.  Yesterday I took a brief trip to visit my friend Matt in Venice and he surprised me with tickets to see Mozart’s “Don Giovanni” at La Fenice.  What an opportunity!  I had never before been inside a real Italian opera house – having never previously visited Italy, much less Venice.

This was a curious production.  The staging was by Damiano Michieletto, and I have to say that it started out well but got stranger and stranger.  La Fenice in its current incarnation has a turntable on the stage, and Michieletto seemed determine to use it more and more as the evening went on, to the point of having some of the singers traipsing along and get on and off the moving turntable to the degree that struck me as potentially unsafe.  There was a unit set constructed on the turntable, which revolved to reveal various interiors and exteriors of a palatial house in which all the action took place.  The second act featured a degree of debauchery and even female nudity I would not have expected to see in a Mozart production, but the strangest effect of all was the return of Don Giovanni at the end to literally get the “last laugh,” quite a subversion of the original plot.

Putting the oddities of the production aside, I thought the musical performance was splendid.  A strike at the opera house had cancelled Tuesday night’s opening performance of this production, so I was attending the opening on Wednesday night, but with the second cast.  I found them an impressive bunch, especially the Don Giovanni of Simone Alberghini and the Ottavio of Leonardi Cortellazzi.  But they were all really good, both for the singing and the acting.

I was especially impressed by the conductor, Antonello Manacorda, of whom I had never previously heard.  He led a very energetic account of the overture, then kept things moving at a smart pace without ever feeling rushed.  There were some slight faults of unity between chorus and orchestra in the first act, partly due, I fear, to the set obstructing the sight lines of some singers.  The orchestra is less than totally major league, the strings sounding a mite scrawny when exposed.  But overall the musical performance was excellent.

And I really enjoyed being in this opera house.  La Fenice has had several fires in its history, so the current house is a restoration of the original, but I don’t think they changed anything significant in the architecture when it was rebuilt most recently.  The sound is fine.  The sight lines are poor from the side boxes, but that comes with the territory.  We were in a 5^th tier box for the first act; then Matt’s friend who was able to get us the last minute tickets was able to arrange for us to sit in a 2^nd tier box for the second act, directly over the orchestra pit with a nice close view of the stage.  It was certainly an exciting experience.