Monday, December 31, 2007


Nu-Way for the Nu Year

Here, in Macon, part of our new year celebration was a fine lunch at the Nu-Way hot dog stand downtown. It's an outstanding place for a hot dog-- I had one piled high with cole slaw. The dogs themselves are a bright red color, almost radioactive-looking.

Up for tomorrow-- New Year's resolutions.

Sunday, December 30, 2007


Life and Times of David Corbett

I love it when my former students do well, and even more when they do well while doing good. One of the former students I most admire is David Corbett, who has sought and achieved success as a public defender in Mohave County, Arizona. As a student, he was one of those who really came into his own during third year, and excelled in trial-related exercises. Those talents are now the source of his success as an attorney.

Still, it is often a struggle as a public defender. Their role is vitally important, but undervalued. I have never been a defender, but as a prosecutor one of the best parts of my job was the vigorous and excellent job done by Miriam Siefer's staff at the federal defender's office in Detroit. Sadly, not every office has the resources that Ms. Siefer's people enjoyed (and even that was sometimes endangered). David recently reflected on the challenges to his own office in this excellent essay.


Holiday Highlights!

Tonight I'm in Chattanooga, Tennessee, on my way to visit Bill Underwood and his family in Macon, which isn't a bad place to spend New Year's Eve. While driving today, I recapped some of the fun events of the past week:

1) My Dad took me down to see the newly-refurbished Detroit Institute of Art, which has been closed for over a year. The redo looks great. The photo above shows the broad scope of the Diego Rivera murals, part of which I use in the PR art lecture.

2) For maybe the first time in my life, I got a $39 haircut. My cousin Elizabeth recommended this guy named Taylor, and I think he did a pretty good job.

3) Seeing Detroit always brings up mixed emotions. Parts of it are very beautiful, other parts crushingly depressing. I did go by the old train station, now abandoned and gutted, which served as a set for the Transformers movie.

4) I kinda look forward to getting back to Waco. My blood has thinned out; it seemed really cold to me, and then I realized that it was only about 30 degrees, not 0 or -10 like I thought.

Saturday, December 29, 2007


A message from the Del Crandalls!

I knew this blogging thing would pay off eventually! Today I got a message from Rich Bowering, who is in the Del Crandalls, one of my favorite bands (in the comments section here you can see Poseur explain the name). He was googling the band name and came across this post, which referred to them.

I have a soft spot for hard-working part-time rockers, and the Del Crandalls are a perfect example of why. Years ago (uh, like, 17 years ago), IPLawGuy and I traveled to Naugatuck, Connecticut to see Barance Whitfield and the Savages. The Del Crandalls were the opening act, but totally stole the show, which isn't easy to do when you are followed by someone like Barance Whitfield...

Friday, December 28, 2007


Post-Christmas Haiku Friday!

The week between Christmas and New Year has that languid air (at least for academics)-- you can sleep in a little, not quite clean up the house, mull over dinner plans. That's a perfect recipe for fine haiku!

Here are this week's topics:

1) Favorite Christmas ornaments
2) Worst Christmas tradition
3) Favorite part of Festivus
4) The gift I wish my child had not received
5) What a kid said at Christmas Eve services
6) My favorite present
7) New Year's plans
8) The death of Benazir Bhutto
9) 2008
10) Christmas-time birthdays

Here's mine:

A paper Big Fig
Made by kid, 1970,
A Christmas miracle.

Now it is your turn! Follow the handy 5 syllable/ 7 syllable/ 5 syllable format, and you are on your way!

Thursday, December 27, 2007


An insight into a city's problems

This morning's Detroit Free Press featured the following stories:

Homicide: More Killers Go Uncaught

Michigan Shrinks by 30,500 Since '0

Giant Mutated Squirrel Decimates City

OK, so I made the third one up, but the first two are pretty typical. The local economy here is somehow still spiraling downward, leading to a further talent drain from the population and greater social problems including crime. Where did things go so wrong?

There are a lot of answers to that question. One of them is the bare fact that those executives who made strategic decisions at the domestic auto companies did a lousy job for decades. The proof of this is in the outcome-- Toyota is now poised to become the largest auto maker in the world. GM and Ford, especially, have squandered their market share and good names by putting out badly-conceived, badly engineered, and poorly-made cars far too often. If you doubt this, rent a GM minivan. They may be the worst vehicles on the road today, so far behind market leaders Honda and Toyota that no rational person would buy one if they didn't have to.

How did it come to this?

Yesterday, I was in line at the Caribou Coffee store in Grosse Pointe, which is home to many auto executives. Ahead of me in line were two guys about my age or a little older, who appeared to be acquaintances who ran into each other by chance. Here was their conversation:

Guy #1: So, are you still working at GM? I heard they let some people go...
Guy #2: Of course I'm still at GM! GM's doing fine.
Guy #1: Great! I just heard about layoffs...
Guy #2: That was just hourly guys. The company is doing great.
Guy #3 (interjecting from back in the line): GM is making great cars! We just put out the new Malibu...

Guy #2: Oh, yeah, the new Malibu is a great car. All our cars are great now.
Guy #1: Thanks! Good to know everything is great at GM.
Guy #3: Are you being sarcastic? Because GM is totally healthy.

Memo to GM: Everything is not great. People don't have a reason to buy your cars anymore, because you made bad cars for too long. We have all paid too great a price to support your delusion that everything is OK at GM.

Wednesday, December 26, 2007


Boxing Day Sentencing Recaps

Criminal Law uber-blogger Doug Berman (2.6 million hits in the past 3+ years) kindly put up a Christmas Day Post highlighting my work regarding "history's most famous capital defendant." His other posts yesterday relate to my interests, too: Willie Mays Aikens' sentence for crack cocaine offenses, and the role Texas plays in dominating death penalty news.

Meanwhile, you should head over to the ABA Blog Poll and vote for Doug's Sentencing Law and Policy blog, which (despite being a primary reference for tens of thousands of criminal law professionals nationwide) is currently in danger of losing to a newspaper blog chatting about what's up in Kansas City.

Tuesday, December 25, 2007


Merry Christmas, one and all (except this one kid who thought he was getting Guitar Hero 3: Legends of Rock)

We're having a great Christmas here in Michigan, celebrating under the portrait of "Day-After Santa" shown above.

Well, I should say, most of us are having a great Christmas. It hasn't been so great for one particular nephew, who was desperately hoping to receive Guitar Hero 3. Instead, due to some parental miscalculations, he received "Handbell Hero 3: Legends of the Liturgy." It features a simulation handbell operated by the gameplayer, who plays along with one Gladys Pemberton of the Morristown (NJ) United Church of Christ Handbell choir. You play your bell according to dots that pass by on the screen; because of the nature of handbells, one comes along only about once every 15 seconds or so. Mistakes are met with a mild reprimand by the choir director.

Hopefully, he will enjoy his other present more-- instead of "Halo 3: Combat Evolved," he got "[Holy] Halo 3: Combat Intelligently Designed."

Monday, December 24, 2007


Christmas Eve 2007

On Christmas eve, I make soup in my mother’s tidy kitchen.

It’s a chowder, really, with lots of milk. It takes time to make it the right way, since it needs to be balanced. Milk is a delicate thing; it can be overwhelmed by spice or grease or heat, and it must be surrounded with things in moderation. Into the chowder goes simple food: Potatoes, and ham, corn, bacon, onion, carrots, and perhaps some fish.

The first thing to do is to brown the bacon on the bottom of the soup pot—not too much bacon, or the grease will be too much; it needs to be just enough to prepare the way for all that will come after. While the bacon is cooking, I haul out the potatoes, and peel them over the old steel sink, then cut them up into cubes with the onions and carrots. Teetering on the edge of the cutting block might be a glass of wine, and I have to be careful not to unsettle it as I chop.

When the bacon is done, I pour in a bit of the wine, to mix with the grease, let it dance a little, and then throw in the onions and wait until I can smell it, the scent of something common and wonderful. It all goes in slowly: Some more wine, and the vegetables, the corn, and finally the milk. It is then that it all comes together, when I can see the swirling white, and feel a little fear that it is too hot or too full or too thin, and then, always right them, I feel it.

The thing that I feel is the urgency of the travelers who must be fed, the ones awaited. These travelers—they are tired, worried, hungry; and they might not have a bed to sleep in tonight, because it is crowded with other travelers. It’s not a thought, it’s an emotion, and it’s overwhelming. I start to act differently.

It’s time to chop the ham which will go in last, and I reach for the good knife and I cut it thick, big chunks that will fill up a soup spoon with just a little bit of corn hanging on the edge like the last men in a lifeboat. Time is short now, I can’t let the milk boil, but this soup has to be rich and I grab the really great wine and make sure no one can see, and I dump some in, and pile in even more of the ham in a feverish rush. If there is fish, I cut away all but the best parts which are firm and free of bones, and slide them in gently from my palm, and then I call to the others. The travelers come to eat.

It’s hard not to cry, because I know it isn’t good enough. I’m not worthy to feed them, and though they are grateful, I am sad that it can’t be more, that in this season of love I have only carrots, onions, potatoes, milk, bacon, and ham. Could it ever be enough?

Sunday, December 23, 2007


Excellent advance in foosball technology

Foosball superstar (well, he beat Bates and I, anyways), Trevor Theilen passed along this intriguing video. To Prof. Bates, this may offer up an alternative to his current lame team-mate:


A Morning at Worship, Father and Son

I'm starting to think about what I will say at the Celebration of the New Baptist Covenant, which is coming up in about month. It will probably be the largest audience I have spoken too, one of the most diverse, and one of the most important. One of the Celebration's plenary speakers (along with Clinton, Carter, Grassley, John Grisham, and Bill Moyers) will be Dr. Charles G. Adams of Hartford Memorial Baptist Church, which is one of Detroit's largest African-American churches. [I'm speaking as part of the Special Interest Sessions, which also include people like Bill Self, former Texas Gov. Mark White, Mary Darden, Millard Fuller, James Dunn, and Rev. James Forbes of Riverside Church in NYC]

This morning, my father and I went to the 7:30 am service at Hartford Baptist to hear Dr. Adams preach. The service lasted nearly three hours, though it seemed like a few minutes. Dr. Adams is one of the most talented preachers I have ever heard, and as some of you know, I work with some pretty talented preachers. His message was complex, clear, deep with meaning and filled with passion. When he takes the stage in Atlanta, I will be there. My parents will be there, too, and at this point I think my father, at least, will be going as much to hear Dr. Adams as he will to hear me, and I can't blame him for that.

Christmas is a time of subtle miracles, if you let it be. For that, I am not only thankful but joyful.

Saturday, December 22, 2007


BearMeat: Still Dead

Several weeks ago, sadly, Red Andrews announced his retirement over at BearMeat, Waco's goofiest sports blog. Since he had two collaborators, we fans thought that the blog would continue, but now it seems positively, permanently dead.

Baylor has its strong points, and one that often surprises me is the ability of Baylor people (most of them, anyways) to laugh at themselves. The Noze Brothers are an ancient tradition, relatively, and a good one. Any institution which concerns itself at any level with morality or religion needs that leavening influence of humor to avoid becoming stiff and removed from real life, and Baylor is lucky to have a bit of self-deprecation as part of its many traditions.

Friday, December 21, 2007


Holiday Haiku Friday Funtime!

The smell of cinnamon and the sounds of haiku fill the air! Here are this week's themes:

1) Foosball
2) Last-minute poorly-chosen Christmas gifts
3) Holiday travel
4) Gifts for bloggers/commenters (ie, IPLawGuy)
5) The problem with my tree
6) Friday classes
7) Christmas card debacles
8) Things Elvis should have sung
9) Britney's family Christmas
10) Desserts at Christmas

Here is mine:

Merry Christmas, Tyd!
I have a present for you--
Here is your new link!

Now, it is your own chance to write wonderful haiku. Please utilize the specially-developed 5 syllable/7 syllable/5 syllable format...

Thursday, December 20, 2007


Foosball good; Osler bad

The foosball extravaganza went great last night. Most importantly, we raised $404 for Mission Waco (including the Bates/Osler match). Bates and I ended up with a record of 21-7, which isn't as good as last year. The problem was pretty much me. For one thing, I kept moving the goalie guy out of the way of the ball, which is not a recipe for defensive success in foosball.

I can't remember if we won or lost against this squad:

The All-Blogger Team (Spanish Medievalist and Baker), who beat us fair and square:

We lost this match:

Won this one:

Somehow, we defeated this crew:

Another Bates/Osler victory!:

These guys beat us in the very first game:

Wednesday, December 19, 2007


Law Prom Recap?

Since faculty have nothing to do with law prom (except maybe Bates; we're not sure), I rely on internet reports to glean any idea of what it is like. As reflected in the photo here (stolen directly from Swanburg's blog), it apparently is the kind of event where you can bring, and then lose, two dates. Meanwhile, according to Yee, the event even includes painful dinner-dates beforehand. Baker, in turn, reveals that this prom includes not just social awkwardness, but dancing, booze, and gambling (gambling?). Hmmm.

At any rate, it probably wasn't close to being as fun as Osler/Bates foosball tonight at Crickets, starting at 8.

Tuesday, December 18, 2007


Foosball: Me and T-Murder Take on the World!

Tomorrow night at 8 pm in the back of Cricket's, Prof. Larry ("T-Murder") Bates and I will be taking on anyone who dares at the great sport of foosball. Don't be fooled, either-- T-Murder takes foosball very seriously. He's also very good at it (I, on the other hand, am fair to poor).

Here's how it works: First, T-Murder and I will be playing as a team of 2. Challengers may either be a team of two or a solo player. Each challenger will pay $5 for the privilege. All proceeds will go to Mission Waco, and T-Murder and I will match the total amount contributed. So, if we play 40 games, that will be $200 which T-Murder and I will match, for a total contribution of $400.

It's just not Christmas without some festive holiday foosball, T-Murder.



Movie wraps filming; mysteries remain.

Some of you may remember that a few years ago I worked on a case with former student David Moore (who is one of my favorite lawyers ever). They are now making a fictionalized movie about David's involvement in the case (which was much more significant than mine-- my major contribution was bringing David on board).

There's some news about the movie here. It will star some serious actors, including Will Patton, Michael O’Keefe, Tim Blake Nelson, Charles Dutton, Alfree Woodard, Nichole Behaire, XZIBIT, and Lucinda Jenney. I did get to see a few pages of script involving the character playing me (mostly nodding seriously and giving David sage advice), but don't know if that part ended up getting filmed, or who was cast to play "the Professor."

I'm hoping for a Taxi-era Danny DeVito, but I guess that's impossible. Any ideas? [This would seem like a natural for Celebrity Luvr & Mrs. Celebrity Luvr...]

Monday, December 17, 2007


Yet another Superhero appears on NPR this week...

I never really stopped believing in superheroes. I just learned to notice them when they were nearby in their disguise as a parent or teacher or lawyer or doctor. Most of my superheroes these days don't do much physical battle-- rather, they use ideas. It's intriguing, too, if you think about it. Comic book superheroes usually don't change the world; instead they save the world, which is another way of saying it stays the same. My thinking-superheroes really do change the world. And they seem to appear on NPR a lot. Last week it was Doug Berman. This week it is Bob Darden, my friend, writing mentor, and Sunday School teacher.

Bob has been involved in a great project-- saving the remaining recordings of black gospel music. He's raised the money and started the process now. His book, People Get Ready, is a wonderful history of that music (I even bought it for my parents).

Tomorrow, Tuesday the 18th, Bob will be on NPR's "Fresh Air" for about an hour starting at 3 pm central time, talking about his project with Terri Gross and playing some of the songs he loves. If you can, tune in. Since it's radio, he won't even need a disguise.

UPDATE: The segment on Bob has been moved to Thursday of this week!


New Jersey bans the death penalty

Not that they were using it anyways, but New Jersey has gotten rid of capital punishment there. It's the first state to do so in over 40 years.

Is this a trend? Not yet. But it is a significant moment.

Sunday, December 16, 2007



Louisville Law School Dean Jim Chen over at Moneylaw recently posted a meaty reply to a short post I made last month at Law School Innovation. Jim's response was three times longer (and four times more articulate and thoughtful) than my original post, and he explores the nexus between innovation and fundraising from a much better perspective than I can offer.

His response also highlights the interest with which many of us are watching what Erwin Chemerinsky is up to out at UC-Irvine. As Jim notes, Dean Chemerinsky enjoys a rare combination: Supporters with deep pockets and no alumni, as yet. Chemerinsky has said that his priority is hiring top faculty, and it will be fascinating to see how this compelling leader accomplishes that goal. Few of us will be able to resist comparing his efforts to those of his ideological opposite, Kenneth Starr, who has lead neighboring Pepperdine to striking gains in academic rankings. I've had the pleasure of speaking on academic panels with both men (at different times), and based on those experiences will not be surprised if both schools do very, very well over the next decade.

Saturday, December 15, 2007


Not Brown v. Board, but still a great week

It's a rainy Saturday morning in Waco. I'm sitting at the kitchen counter, looking at the red leaves and the damp, and thinking about the week we have had, in which the 100:1 ratio between powder and crack cocaine fell apart. Getting to this point was a big part of my life's work for the past seven years, and now we have won.

In the course of my work on the issue, I wrote six amicus briefs. My small group of amici included Graham Boyd's Drug Law Reform Project and Doug Berman of Ohio State. Both Graham and Doug were on NPR and quoted in a front-page story in the New York Times this week, and in Newsweek, Graham even compared Kimbrough to Brown v. Board of Education. I would probably agree with Doug that such a comparison is an overstatement, but yet I don't doubt that this might be as close as I ever get to changing the world.

While they were talking to the press on Monday, I was critiquing voir dire exercises down in our courtrooms. There is a part of me that would love to be in the Times and on NPR as a part of this, but then I remember what I teach my own students. I show them the painting above, Degas' "At The Milliner." There are two women; one is buying a hat while the other is placing it on her head. The woman in the foreground is fully formed and in the light; she will wear the hat and be complimented on its beauty. In the background, the milliner is in the shadows. She made the hat, chose it for this customer, brought it out, but will not be there when it goes out into society to hear the compliments. I tell the students that the lawyer is not the customer, but the milliner.

It's a good lesson. I left work yesterday about 4 and went over to Crickets to practice foosball with Prof. Bates. I got a table and some quarters. A few of our students came in and practiced against us; we laughed and told stories and watched that old Bates magic at work. On the way out I saw one of my old students, Seth Sutton. He's a big guy, so he could reach through the crowd and ask "How's it going?"

"Pretty well, Seth, pretty well," I answered. It may be the truest thing I ever said.

We made a good hat.

Friday, December 14, 2007


Do you haiku? I do!

Friday is here, and that means it's time for high-quality haiku. It's kind of a bridge between two important weeks: Last week, with all the great sentencing news, and next week, when Bates and I will take on everyone in foosball at Cricket's on Wednesday at 8-11 pm. If you wanna play us, it costs a $5 donation to Mission Waco.

Here are some suggested themes for this week:

1) The most annoying Christmas Carol
2) The best Christmas carol
3) What not to do at the holiday work party
4) Pre-eminent car
5) New IPLawBaby
6) Something that could be chicken-fried, but usually isn't
7) Wii
8) Why everyone seems to have the hots for Swanburg
9) Christmas trees
10) Waylon or Willie?

Here is mine:

My head is throbbing
With lyrics to "Heat Miser"
Stop or I will die!

Now it is your turn-- just make it 5 syllables/7 syllables/5 syllables.

Thursday, December 13, 2007


Osler's Razor Holiday Gift Guide Item Four: Pre-Eminent Car!

Available for $1 at "El Paso's Biggest Dollar Store" (more details here). It kind of looks like a bus, but perhaps that is what makes it pre-eminent. Also available at El Paso's Biggest Dollar Store: Benign Girl, Refinement Snowdog, EXCITING BALLS ("Squeeze it to become Locky Man of World!"), and many others.

I'll be in El Paso January 17 to give a CLE lecture, and I can't wait to snap up all these items, and more!


Tennis Balls and Abolition

I received an email from my Dad (painter of Day-After Santa, above), in response to my query as to what he wants for Christmas. Here is his list:

1) World Peace
2) Tennis Balls (Wilson or Penn)

I suppose this could be my fault, for not employing the World Peace Exception, which is often necessary with my family. On the other hand, it might be a multilayered comment on world peace. Remember that both (Woodrow) Wilson and (William) Penn strove for world peace in ways we don't see today. Could it be that my Dad is saying that instead of such heroes, today we treat the idea of peace like tennis balls, something simply to be batted around as a plaything?

Uh, probably not.

Meanwhile, there was an interesting reflection on last week's Serr/Osler debate over on the Bosque Boys blog, which is authored in part by one of my three favorite historians. He suggests that religious opposition to the death penalty shares some aspects with the abolition movement of the 1800's, which faced similar counter-arguments as they opposed slavery. There are good and bad sides to this comparison, of course, as those abolitionists were not as pure of heart as often portrayed.


Help Name The Latest IPLawBaby!

IPLawBaby (aka "Mamie") is about to get a little sister. The Dadadrummer, who takes such things verrrrrry seriously, is having a contest to name the baby. Please weigh in! It would probably be best to avoid registered trademarks, such as "Diana Wall Mart."

Wednesday, December 12, 2007


The Loss of a Mentor: Stanton Wheeler

I don't just love the law; I love a particular thing about law. And that thing is the fascinating place where legal restrictions meet real people-- that is, where a law limits freedom, and people decide whether to follow it or not. My seeming obsession with crack sentencing comes from this-- the harsh laws weren't making much difference where the rubber hits the road. When I talk about ethics, the rules don't mean much in the abstract. Ethics only mean something when they actually affect a specific decision, when someone has to forego an opportunity or love or excitement or money because to pursue something would be wrong.

This love for what is real in law isn't accidental; rather, it was taught. The person who taught me to focus on what law really does was Stanton Wheeler, who died Friday at age 77. The irony (or not) is that Prof. Wheeler was not a lawyer; he was a sociologist who came to Yale Law from a professorship in the sociology department at Harvard. At the time he came to Yale Law it was a groundbreaking move to hire a non-lawyer to teach at a law school. If ever there was a right person to make that move, though, it was Stan Wheeler.

From 1989-1990, I was Professor Wheeler's research assistant. I put together material for a class on music law and worked with him on other projects. The whole time, I was just watching his mind work. More specifically, I was watching his eye. The same way an artist has an eye for shape or color, Prof. Wheeler had an eye for that meaningful intersection between law and person. For example, one project we worked on involved New York City's cabaret laws. Those laws dictated that no more than three musicians could play at one time in many establishments. We followed that law to where it mattered, to the place where musicians had to either work with or around that (somewhat bizarre) restriction. On the one hand, it meant that the trio predominated in New York clubs, and that sidemen had to be chosen carefully; on the other, it explained the existence of illegal clubs in New York well after the end of prohibition.

He may not have been a lawyer, but I have yet to meet someone else who so clearly saw what was real about the law. I hope that his lessons live on in myself and others as the best legacy any teacher can leave.

Tuesday, December 11, 2007


BOOM! Sentencing Commission continues to drop da bomb on harsh crack laws

It's been an incredible week for sentencing (even without Michael Vick). Yesterday, Kimbrough; today, the Sentencing Commission voted unanimously to make the new, more reasonable, crack guidelines retroactive. This change means that those who were sentenced under the old, harsher guidelines can be resentenced under the new standard. The new rule will go into effect on March 8, 2008. I suspect that the delay is to allow courts to get ready, for defense attorneys and others to identify those affected, and to allow time for Congress to decide whether or not they want to veto this decision.


Haiku Friday Winner: _B_!

For this effort:

live in old building
my flat's door sign reads "Ladies"
so far no success

_B_ gets an "A."

Congratulations, my man (or woman). You win a fabulous prize-- the Osler Christmas CD, which for the first time features me singing some popular favorites.

Monday, December 10, 2007


I break it down (on another, more popular and important blog)

I spent part of the morning writing up my impressions of the Kimbrough opinion for the well-known SCOTUSblog. That post is now available here.

What I left out of that post is one of my favorite parts of the opinion: That the Supreme Court incorporated into their opinion an idea that Dustin Benham and I first introduced into this debate in Spears, and which later was included in the petitioner's briefs in Kimbrough: That Congressional inaction, in this circumstance, speaks to their acceptance of the breakdown of the 100:1 ratio.

It's gotta be a pretty good day, too, for BLS student Matt Acosta, who wrote a chunk of our brief and got to watch the Justices bat our ideas around at oral argument.

Of course, we were just a few of many people who have worked on this issue for many years, and many of them better deserve the acclaim they should be receiving today. One of them, Doug Berman of Ohio State, has his own list of winners and losers here. Another, Michael O'Hear of Marquette (who co-wrote our brief) has also posted his evaluation of Gall on SCOTUSblog.


We Win! Whoooooo! [faints]

The Supreme Court just announced their opinion in the Kimbrough case which I briefed this year, and wrote about here and here. They found for our side (Petitioner) 7-2. You can download the opinion from Scotusblog here.


Please vote in this important election...

The ABA is taking votes on the best legal blogs ("Blawgs"). Though the Razor is not in the running (nor should it be, since it is, uh, not very focused on law), I strongly urge you to vote for Doug Berman's sentencing blog. I check it first thing every morning, and am always glad I did. Doug and I have collaborated many times on various sentencing-related projects, and I always find that his blog is the best and most efficient way to communicate directly to the people most interested in sentencing issues. You can vote here.

[photo: poseable Blogger Bear Action figure]

Sunday, December 09, 2007


Razor holiday shopping guide item three: Win Everything Elite Troops!

Do you have a kid who loves violence, war, petroleum products, China, and winning at any expense? If so, The Razor suggests you (carefully) place some Win Everything Elite Troops under the tree with that kid's name on it. Here is the near-perfect description of Win Everything Elite Troops I cribbed from The newspaper:

Half the fun of our annual look at the cheapest in cheap toys is the search for the most appallingly broken English instructions on all the cheap Chinese knock-offs. This year's winner (though according to the label, it was "Made in Chane") is certainly Win Everything Elite Troops, an enthusiastic plastic soldier foursome apparently meant to represent the American ideals of uncompromising combat victory (win everything!) and multicultural acceptance. "Top maintenance peace!" the package proclaims. "Come to own it together!" Apparently maintenance of peace is hazardous, though—one of these soldiers has a clumsy eyepatch, the black soldier's blackness seems to have melted off his inner arms and onto his clothes, and a third soldier's face is distinctly lopsided and smeary. They may be dangerous to kids, too, given the box suggestion: "When child play the toy, suggestion contain adult beside."


The song that undoes me

I don't know if this is true of everyone, but there are certain songs which just move me, even just looking at the words on paper. This might be most true about "Angels From the Realms of Glory," one of the less popular Christmas hymns.

Angels from the realms of glory,
Wing your flight o’er all the earth;
Ye who sang creation’s story
Now proclaim Messiah’s birth.

Come and worship, come and worship,
Worship Christ, the newborn King.

The music for the song was written by Henry Smart, pictured here. You will notice that we bear a striking physical similarity, particularly the hairstyle.

The words are simple and direct, and they proclaim something dear to me: The idea of celebration. I'm a big proponent of the feast, the dance, the singing with joy of a true celebration, and I think we don't have enough of it these days.

[karaoke version available here]

Saturday, December 08, 2007


Razor holiday shopping guide item two: Anti-Canadian Shirt!

Dear Osler's Razor holiday shopping guide: I am a middle-aged woman looking for just the right gift to deeply offend and alienate a Canadian acquaintance. What do you recommend?

Loyal Texan

Dear Tex: I would heartily commend to you the shirt shown here (thanks IPLawGuy!), available at Busted Tees, which offers a full line of offensive t-shirts. While Canada has provided us with many fine people who have honed their craft in the U.S. (ie, Neil Young, Paul Larson, Brian Larson, Spiro Agnew, Mike Modano, Wink Martindale, Manute Bol, Amy Grant, Brian Serr, Celine Dion, and two or three others), it also is a thorn in the side of America as they relentlessly show a holier-than-thou attitude in sanctioning gay marriage and refusing to join us in several of our wars within the past decade. God is punishing Canada, too-- right now, Prime Minister Gretsky is struggling with the destruction of the parliament building, which has steadily been melting due to global warming.

This tee would also serve to offend those in near-Canadian districts such as Detroit (seriously-- any city that calls itself "Hockeytown" is pretty much already in Canada, albeit an extremely violent and dysfunctional part of Canada).


Razor holiday shopping guide item one: Clocky!

The first item in the Razor's handy holiday shopping guide is Clocky, the perfect gift for certain people you love (or don't, depending). Clocky is not a normal clock; rather, he leaps from the bedstand and rolls wildly around the room until you get up! This is the kind of mayhem some people need to get moving in the morning.

You can order Clocky from the Museum of Modern Art here for fifty bucks. Not recommended as a gift for a pet.

Friday, December 07, 2007


It's Haiku-ish Friday!

Feeling Haikuish? I sure am! It's wonderful that we now have Terrible name Wednesday over at the Dada Drummer's, and Dan Buck's Limerick Tuesday, but today is the day for our old standby-- Haiku Friday. Let's rock!

Here are the themes:

1) Girls
2) The Patriots
3) The Debate
4) Obama's homework
5) The BCS
6) Christmas shopping for Bates
7) Elves v. Dwarves
8) Immunity day
9) Torts
10) Arg Briles, BU Football Coach

Here's mine:

It's just so cliched
To get him a fancy comb--
I'll get Bates a brush.

Now it is your turn to play! AND... there will be a prize this week, of my Rockin' Christmas CD.

Thursday, December 06, 2007


Tom Dickson has a passion for blending!

So far, I love my new iPhone (and have totally abandoned the search for my old phone as wise old IPLawGuy predicted). However, since I got it on Saturday, I have been wondering one thing: What would happen if I put it in the blender? Fortunately, Tom Dickson and the folks down at Blendtec have done this work for me:

Wednesday, December 05, 2007


An amazing thing to find

Last night, I was digging through the attic looking for Christmas decorations. The attic is an easy place to get distracted, and I was waylaid for a while looking through old boxes of books. Then, something amazing happened.

Underneath a stack of old car magazines was something small and metal. I reached in, and there it was-- something precious I had long thought had been lost.

It is a medallion with the crest of the FHC. The FHC is the oldest college fraternity in the United States, having been founded at William and Mary by George Wythe and Thomas Jefferson before even Phi Beta Kappa (which, according to legend, was started by a student not admitted to the FHC). Though it is often referred to as a "secret society," it doesn't neatly fit the definition of either a modern secret society or fraternity. The unusual thing about it is that both faculty and students are members-- four profs, and six students. Wythe was a teacher; Jefferson was a student. (Wythe's other students included Henry Clay and John Marshall). When I was a student, it wasn't very secret, either.

FHC had a fairly profound effect on me. The experience of seeing faculty as more complete people, as peers, convinced me that learning did go both ways, and let me see them as mentors in a much more full and complete way. It was that lesson that in part shaped me as the professor I am now, in that I do seek to let students see different sides of me, including a sometimes light-hearted side. For example, in the "trash-talk" before the debate, you could perhaps see the friendship that underlaid it. The lessons of FHC, in large part, are what led me to start this blog as a way to make contact with students in a medium that was mostly theirs.

The badge I found is supposed to be worn, discretely, under the robes at academic events. I have always wished that I had it the times I was chosen by the students to participate in commencements. It may be there at some future commencement, now. No one else may be able to see it, but what it will mean to me is that perhaps I have been to a student some faint shadow of what Wythe was to Jefferson and what every teacher, from kindergarten on up, hopes to be.

Tuesday, December 04, 2007


Jed (or at least his blog) in the news

It looks like they have a good old fashioned controversy over at Boots and Sabers, which is run by one of our Baylor Law grads (who was a great student) and a friend of his. It seems that someone posted the following as a comment on their blog and was subsequently arrested:

“Looking at those teacher salary numbers in West Bend made me sick. $60,000 for a part time job were you ‘work’ maybe 5 hours per day and sit in the teachers lounge and smoke the rest of the time. Thanks God we won on the referendum. But whining here doesn’t stop the problem. We’ve got to get in back of the kids who have had enough of lazy, no good teachers and are fighting back. Kids like Eric Harris and Dylan Klebold members of the Young Republicans club at Columbine. They knew how to deal with the overpaid teacher union thugs. One shot at a time! Too bad the liberals rip them; they were heroes and should be remembered that way.”

The guy who was arrested for posting this comment is a former teacher's union president named James Buss. Apparently, he thought that posting "anonymously" meant that it couldn't easily be determined who he was. It's surprising how many people make that mistake.


A Map of Disparity

Students in my classes are familiar with my discontent with the racial disparities in criminal law-- particularly, that blacks are punished more harshly for the same crimes than are people of other races. Though blacks and whites both use and sell drugs at roughly the same rate, far more blacks are incarcerated. Doug Berman tipped me off to a fascinating new study by the Justice Policy Institute that reflects how this may work in your home county. Just click here to get a sense of what is going on in Texas. For example, in Williamson County, blacks are incarcerated at seven times the rate that whites are for narcotics offenses.


I didn't even know there was a "!"

Thank you to "Anonymous" for tipping me off about the availability of Penguin Tea-Timers for only $11 at At first I thought it was some kind of trick and would link to a picture of myself or something, but they actually are selling the teatimers endorsed by our own Master of Ceremonies, Chicago. I suspect that he normally borrows it from his roommate to make sure he doesn't overdo the hottubbing.

The penguin, of course, was presiding over a debate which, at its core, addressed the question of how our faith can impact our actions as citizens and lawyers. In discussing the death penalty, we were addressing a subject which Christianity directly addresses. I suspect that many of those there (including me) had their ideas about the death penalty adjusted a little, at least, as there were good and principled arguments on both sides. In the end, it is very hard to engage the law from a position of faith, and I have great admiration for the people who do. As the Waco Farmer pointed out in the last question of the evening, we have a great example of this in many of the abolitionists who played a role in ending slavery in the United States.

Monday, December 03, 2007


Hey! That was a pretty good debate!

The 60-some people in attendance may not agree, but I thought tonight's debate sponsored by the Federalist Society went very well. Kudos to Prof. Serr, who was a worthy adversary and made excellent points, and to Chicago, who did a fine job as the moderator. Chicago's true masterstroke was bringing a gigantic Penguin alarm clock to keep us on schedule. Somehow it sounded prurient every time he talked about "adjusting his penguin," but the frosty bird did a good job of keeping us in line.

[Photo: The rusting hinterlands from which I come]


How else am I supposed to operate air traffic control from my car?

Last Friday I lost my phone. Many have you have been through the same thing-- the frantic searching, the despair, the realization that you never backed up all the information in your phone, etc. In the end, I gave up and got an iPhone. It's very fun.

Since I am a lawyer, though, I always read the contracts I sign, even is it is 22 pages long, like the iPhone's Terms and Conditions. While reading through that document, I did find something very intriguing in the second paragraph. In all caps, it informed me that I could not use my iPhone for the following things:

- Operating a nuclear facility
- Aircraft navigation
- Air traffic control

Seriously, is there a chance I would be able to operate a nuclear facility with my phone? Yikes!

Fortunately, I am still allowed several other functions, including controlling the speed of Prof. Serr's pacemaker, which will come in handy at our debate at 7 pm tonight in Room 122 at the law school.


So... what can I get for $20 million?

I've often wondered if there are conditions attached to law school gifts, and it appears that, at least at the new school at UC-Irvine, the answer is a strong "yes." Whether this affected the hiring/firing/hiring of Erwin Chemerinsky there as the dean is a matter of some dispute. However, the LA Times does seem confident of the following:

UC Irvine gave Orange County billionaire Donald Bren the right to be consulted in the selection of a dean for its new law school in return for his $20-million donation, according to documents released to The Times on Thursday.

The eight-page gift agreement reveals the scope of what Bren received for his money, ranging from major matters such as selection of the dean to specific rules governing how prominently signs featuring his name were to be displayed on the campus.

Signs on law school buildings must read "Donald Bren School of Law" and be at least twice the size of the building name. Bren's must be the largest and most prominently displayed name on the building, according to the agreement.

Sunday, December 02, 2007



Last night I went Christmas caroling with a number of others (including one of my heroes of writing and the Waco Farmer) at some area nursing homes. Normally, no one would consider it a "treat" to hear me sing, but my primary job was to shepherd around a bunch of kids from my church. It was a wonderful evening, actually; I'm not often around elderly people and it was a good chance to change that.

Partway through I thought that Prof. Serr might want to come along, but when I called he was still working at the time-share sales call center.

Saturday, December 01, 2007


The Trash-Talk is going both ways...

Last night, I was one of the thousands crowding into Baylor's Ferrell Center for the basketball game against #6 Washington State. Sadly, Baylor lost in the last minute, blowing an 11-point lead. Compounding this tragedy was the fact that due to a catastrophic error at the box office, I was seated next to Prof. Serr, whom I am debating Monday night at 7 pm. For those of you concerned that only I have been engaging in trash talk, be assured that Prof. Serr has been getting in his share. During the course of the game, he referred to me as the following:
"The Demonic Pygmy"
"Toffee-Breathed Harp Aficionado"
"Damp-Haired Cigar-Smoking Brie-Eating Mutant"
"The Ronco Chop-O-Matic"
"Mike Gravel-Resistant Philistine"
"The Artist Formerly Known as the Demonic Pygmy"

There were more as well, not suited for a family blog such as this one. Until the third quarter, when he was removed by arena officials (it took seven such officers to physically cause him to move), it was quite unpleasant.

One positive fact became obvious, however: Prof. Serr apparently has not discovered how to access the internet (or "internest" as he calls it). It seems he is flumoxed by the I/O switch since, as he put it, both "on" and "off" start with "O."

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