Saturday, October 31, 2020
Talking about clemency
On Thursday, I had this piece go up at CNN, about the failure once again this year to press the candidates to define how they would use clemency.
Then yesterday I got to talk about it with John Howell at WLS in Chicago-- you can hear that here.
And the election is almost here!
And happy Halloween to all! Here is one of my favorite costumes ever (that is me on the left).
Friday, October 30, 2020
Haiku Friday: From the back of the closet
Thursday, October 29, 2020
Political Mayhem Thursday: Final Thoughts
This will be the last PMT before the election-- and who knows what we will be reporting next week? Hardly anyone I know is willing to say what they think will happen-- the events of 2016 cast a long shadow.
But I will offer some final thoughts, and I hope you will offer your own in the comments section below.
-- I wish that this campaign had more to do with ideas and policy rather than personality and negativity, on both sides. A central truth that never came out is that this is the first time in memory that we haven't had a conservative running in the general election (given that Trump is not a conservative by the traditional measures of fiscal restraint, international engagement, and support of free markets and free minds). I would like to have seen that unusual dynamic-- a populist vs. a moderate progressive-- play out through an honest discussion of positions. The closest we got was the last debate, and that was pretty late in the game.
-- Biden will probably win. Trump is showing no signs of closing the gap or doing the things he would have to do to catch up, like make a sustained argument based on the pre-covid economy. Instead, he is making a closing argument that centers on personal grievances and boasting. That won't expand his voting pool, and there are few undecideds left anyways.
-- All of this effort is being made to win something less than the gold ring. Whoever is president in January of 2021 is going to face immense challenges and very tough choices. We can fight the coronavirus hard, but at the expense of personal liberties. We can boost the economy, but only by expanding the already-bulging debt.
-- If Biden wins, Republicans will return to being the fervid opposition, denying him anything that might be a victory whenever they can. That will frustrate the Joe Biden who really thinks he can build bipartisan consensus. And if Trump wins, it is likely that he will face a Democrat-controlled Senate and House, who may succumb to the same destructive path of governing by denying the president whatever it is he might want.
-- If you are looking forward to 2021 because you think you won't have to hear about President (or ex-President) Trump, you will be disappointed. Win or lose, he will continue to have a platform and he will use it.
So, what are your final thoughts?
Wednesday, October 28, 2020
Yale Law '90: Adrienne McNamara
Adrienne McNamara came to Yale Law straight out of LSU-- like me, one of the state-school people thrust into a new environment. She thrived, and landed a great clerkship on the 5th Circuit with Judge John Minor Wisdom (a legendary judge with one of the most memorable names since Learned Hand).
After clerking, Adrienne landed in Denver, where she now works at Faegre Drinker-- and has since 1991, a rarity among my classmates, who tend to, uh, move around a lot. Her specialty is helping non-profits, which in my experience can get themselves in a lot of legal trouble. She has been named a Super Lawyer, which (as I understand it) means that she is able to fly and make herself 11 feet tall (though not at the same time).
I like knowing that Adrienne is using her considerable talents-- which were obvious all the way back in 1990-- to help the non-profits that make so many communities better. That's a pretty good path to tread.
Tuesday, October 27, 2020
Here is a toy for election obsessives!
FiveThirtyEight.com is really the place to be for America's election-obsessed population these days (a group that seems to include nearly everyone I know).
They have a great interactive tool right now (you can access it here) that allows you to decide the outcome for a state (or several) and see how that changes the candidates' chances.
If you change nothing, the current likelihoods prevail-- right now, that is Biden with an 87% chance of prevailing, and Trump with 12% (the final 1% covers a tie). BUT, if you just flip Florida for Biden, his chances of winning the race skyrocket to over 99%.
Which means that we could actually have a good idea of who won by late evening one week from today. If Florida is called for Biden (and Florida is a state that usually gets votes in quickly, at least in the broad aggregate), it means he almost certainly is going to win.
Monday, October 26, 2020
Poems about snow
Since it is really only here in MN that there is snow right now, I was happy to see so many nice haiku role in!
We had this from Desiree:
First snow is when I
Finally remember to
put scraper in car.
And an undeniable truth from IPLawGuy:
I Love summer's heat
revel in crisp snowy cold
Yuck to bitter rain.
The Medievalist is a bit jealous (and that's ok):
There is no snow here,
We are always sunny, hot,
Texas, joyless drag.
Christine is representing for NC:
It may snow, or not
Sometime in January
A quiet blanket.
Waco Doc showed up:
And I like this anonymous entry:
At the first snowfall
The antique sled is set up
Beside the fireplace.
Sunday, October 25, 2020
Sunday Reflection: PBS Sunday school
So, one great thing has come out of 2020 for me-- which is one more than many people have gotten, I know.
When I lived in Waco (2000-2010), I was part of a phenomenal Sunday school class at 7th & James Baptist Church, informally known as "The Heretics." In fact, it was basically what you would get if PBS had a reality show called "Sunday School." There is an Old Testament scholar. An Archeologist. A journalist and expert on black gospel music. A linguist. An education specialist. And, perhaps most intriguingly, the costumer for the Baylor theater department. Oh, and me. How is that for casting?
One thing that surprised me early on was that the costumer had so many professional insights into the Bible-- but of course she did! There are many references to what people are wearing, and that means something, something I had never considered before.
Naturally, I had to leave this wonderful part of my week behind when I left Waco for Minnesota, and that was one of the hardest parts of the move.
BUT... now we are back! On Zoom, of course-- but that is what makes it possible. And it is awesome.
We are not meant to worship and celebrate our faith alone; Jesus made that clear. And something about re-connecting with this group has super-charged my engagement with the faith, even amidst the difficulty with everything else.
How lucky am I?
Saturday, October 24, 2020
Oh, Zoom!
Friday, October 23, 2020
Haiku Friday: First Snow
Thursday, October 22, 2020
PMT: Who You Gonna Vote For? And Why?
Wednesday, October 21, 2020
Then and Now and the Long Tail of the Legal Realists
I've been devoting Wednesdays to profiling my classmates in the Yale Law Class of 1990. Today, though, I'm going to reflect a little on the influence that the place had on me.
I'm just begun work on a new article, and one starting point is Karl Llewellen's 1930 classic, Bramble Bush, which was written as a student's guide to law school. School was very quiet, and when I went to the library only the head librarian, Michael Robak, was there. I asked him if we had the book, and he looked at his computer. "We have it online on several sites, and a copy in the stacks," he told me, with an intonation that told me most people would use the online version. I wanted the real book though, and he helpfully went into the maze of stacks and came back with a cream-colored book, small, hard-bound and oddly reminiscent of a children's book. I had read it before, and once it was in my hands I lit into it again, right there standing in the entrance to the library.
Llewellen was one of a group of jurists and scholars in the 1920's and 30's often referred to as the "Legal Realists." I'm so old that when I was at Yale one of the last of them, famed international law scholar Myres MacDougal, was still roaming the halls. Our Dean, Guido Calabresi, had been their student. I latched onto their ideas in law school and have never let go.
In short, the Legal Realists believed that the formal aspects of the law-- statutes, precedent, etc.-- did not reveal the true nature of the legal process in real life. That process was shaped and deformed by the people involved in it, the judges and prosecutors and others with power. Because of that, it was necessary to use the techniques of the natural sciences, like observation and measurement of outcomes, to truly assess what is going on. A formalist may see that American laws are facially race neutral and declare that the system is not racist. A legal realist will measure outcomes and see the reality of disparate racial outcomes and conclude that the system-- as it actually exists-- is systemically racist. [for what it is worth, I'm not aware of the 20th century legal realists doing work on race, but I am using this example because it is what matters most in my field] If you have read my work (like this or this) you can see the profound influence these thinkers had on me.
The Legal Realists followed in the footsteps of-- and probably interacted with-- the Theatrical Realism movement. They even shared many of the same tenets, such as an affection for scientific observation. It's easy to imagine Llewellen, a resident of New York, going to a play by Eugene O'Neill, after all. I've been fascinated with the theatrical realists, too, and use one of their plays in the classroom. More than anything, I love the idea that art can influence us in our vocation of the law, as it has for me.
As I stood in the hallway with that old book in my hands, I came across this passage: "This doing of something about disputes, this doing of it reasonably, is the business of law. And the people who have the doing in charge, whether they be judges or sheriffs or clerks or jailers or lawyers, are officials of the law. What these officials do about disputes is, to my mind, the law itself." [italics in original]
That's what I believe, in one sentence. What prosecutors do with their discretion is the law itself, and often more important than the formalities of statutes and precedent. It is idiocy to pretend that there is an objective law that simply directs outcomes.
That's also why I get so passionate about these things-- because not being a realist in law is too often to take theory over what is observably true. It infuriates me when people assert that Amy Coney Barrett (or any other judge) simply "interprets the law as it is written," as if there is some objective standard that simply must be discovered without reference to one's own experiences and beliefs. It's a lie. And it is a lie that perpetuates racism and every other kind of bias and injustice in our law.
Yale Law was a good place for developing passion. And for some of us, it stuck.
Tuesday, October 20, 2020
Toobin Troubles
Mark, let's start with you.
The president, as we said, said that, with Kagan on court, it would be more representative of the United States as a whole. Senator John Cornyn, though, on the Republican side, said: "Kagan has spent her entire professional career in Harvard Square, Hyde Park, and the D.C. Beltway. These are not places where one learns how ordinary people live."
What do you think? Is she reflective of America? And is the Supreme Court reflective of America at large?
MARK OSLER, BAYLOR LAW PROFESSOR: Well, President Obama I think clearly was talking in terms of gender, that Elena Kagan is going to make the court look more like America in terms of gender. That leaves a lot of other issues, however, that we still lack of certain diversity.
And what Senator Cornyn points to is one of them, that we have that large swathe of country in the middle that is not going to have their views reflected perhaps on the court in a way it might be if there was a justice from that area.
ROBERTS: Linda Greenhouse, the fact that there will be no Protestants on the court if Elena Kagan is confirmed for the first time in history, do you think that makes a difference?
LINDA GREENHOUSE, YALE LAW PROFESSOR: Well, what's interesting to me about that is that nobody much seems to care. There was a poll out the other day, and people just shrugged off what a few years ago would have really been a quite amazing development.
For years, there was a Jewish seat, so-called, on the court for one Jewish justice. Justice Brennan, at least through a chunk of his tenure, was the only Catholic on the court. And it's a reflection, I think, of those things that become salient to the public and then kind of fade from importance as the country progresses.
ROBERTS: You know, as we saw in the figures there from the Gallup poll, 66 percent of people asked say it doesn't really matter if he nominates a Protestants.
What do you think, Jeff Toobin?
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, membership on the Supreme Court always reflects the political controversies of the day.
In the early days of the republic, regional differences -- in the period leading up to the Civil War, you had to have a certain number of Southern justices, Northern justices, Western justices. No one cares what state they're from now.
Later, when we had immigration, you had the Catholic seat, the Jewish seat, then, of course, 1965, the first African-American, Thurgood Marshall, 1981, the first woman, Sandra Day O'Connor, last year, the first Hispanic.
Those are the landmarks that matter now. We are in an ideological age. George Bush did not nominate Samuel Alito and John Roberts because they're Catholic. He nominated them because they're conservative. Same with Obama. He nominated Sotomayor and Kagan because they share his politics. That's why they're going on the court.
ROBERTS: And what about law school, Mark Osler? Does that matter? With all of these justices having either gone to Harvard or Yale, there are a lot of other good law schools across the country. What does the centralization around these two Ivy League schools mean for the Supreme Court?
OSLER: Well, there are a lot of other good law schools in the country. I teach at one of them.
(LAUGHTER)
OSLER: Having gone to Yale, I can tell you that there was something there. I remember our tests often seemed to be asked from the perspective of, "you're an omniscient God. How would you structure the law?"
And that's not the approach that many other law schools have. There, the training is much more rooted in real lives and political realities and the realities that come with the lives of litigants. And so there is a different perspective that might be more reflected if we had diversity in terms of background of law school.
(CROSSTALK)
TOOBIN: I don't know if it's diversity or not, but I went to Harvard. And I was never told I was an omniscient God.
(LAUGHTER)
TOOBIN: I have never been told that in my life. I'm waiting for this.
GREENHOUSE: Well, there you go.
TOOBIN: I'm waiting for that. But...
OSLER: I thought I told you that just this morning when...(CROSSTALK)
TOOBIN: Well, it was too early.
ROBERTS: Linda Greenhouse, what do you think, Linda? Does the concentration of these two schools and their hallowed halls of law make a difference in terms of the perspective of the court?
GREENHOUSE: Well, I think it may tell us something about the networks that send people into the great, you know, mentioning up above us as to people that are on these kinds of short lists.
You know, one thing that is interesting about the current crop of justices, a number of them -- and Elena Kagan, assuming she's confirmed, will be one of them -- have been Supreme Court law clerks. Now, that's a much more exclusive club than the club of graduates of Yale and Harvard Law School. TOOBIN: And also you have to factor that so many of the justices are former judges. And graduates of fancy law schools tend to become that.
In the old days, when you had justices like Hugo Black from Alabama, and Earl Warren from California, and Robert Jackson from New York, who didn't even go to law school at all, that is -- it reflects how the qualifications game has changed.
And I think it's too bad, because it would be better to have occupational and background diversity, not just racial and gender diversity on...
(CROSSTALK)
ROBERTS: All right, well...
GREENHOUSE: Well, there is the diversity. I mean, Elena Kagan will be the only one who has never been a judge.
ROBERTS: Yes.
GREENHOUSE: So, that's diverse.
TOOBIN: That's a change.
ROBERTS: Yes, since William Rehnquist in 1972.
He rose to a fairly prominent position.
(CROSSTALK)
TOOBIN: You know, you didn't hear conservatives complaining about Rehnquist then.
(LAUGHTER)
TOOBIN: And it was funny. That line about how never left the beltway, John Roberts has never had a job outside Washington, and he seems pretty satisfactory to most conservatives. So, you know, this is politics.
ROBERTS: Many statements suit a political purpose, don't they?
Linda Greenhouse, Mark Osler, and the omniscient God, Jeffrey Toobin, thank you for joining us tonight.
Monday, October 19, 2020
So much cereal!
I actually went out and bought some Frankenberry yesterday. I'm taking this seriously!
So was IPLawGuy:
I love cereal
Sugar blast or plain with fruit
But Keto says NO!
And the Medievalist:
Corn flakes, perfect snack,
Captain Crunch and Quisp and Quake,
Frosted flakes divine.
And Gavin (relating a near-universal experience):
Cookie Crisp? Mom? Please?
No! No cookies for breakfast!
Bought em in college.
And Mary Senneka:
Variety pack
Wonderful tiny boxes
Rare vacation treat.
And TallTenor (Is that true?):
Apple Cinnamon
Cheerios are so awesome.
Toasted coconut?
And Jill Scoggins:
Cheerios: Tasteless
nothings. But Hubby likes them.
So: In MY pantry.
And Desiree:
Rice Krispies will do.
But add marshmallows -- dessert.
Sticky perfection.
And someone new, Honey Nut:
Super sugar bombs:
"Part of a complete breakfast"
Juice, grapefruit; yeah, right!
Sunday, October 18, 2020
Sunday Reflection: With eyes to see
One thing we learned was to be still sometimes. That's not normal for city kids, of course; I suspect it had to be learned. But stillness lets you listen and see. When we are moving, we have to look where we are going, after all, but we miss everything else.
Sometimes what we would see or hear was shrouded in mystery, and we would fill in the gaps. Sitting on a rock, there is a noise behind 10-year-old me. It's not just a noise, but kind of a scuffling noise, maybe some breathing. Was it a bear? It might have been a bear. There were bears around. It was a bear. Maybe not an actual bear, but the idea of a bear. And when you are ten, there is a lot you can do with that.
As we get older, we have to try harder to see and hear; there is more noise in our lives and our field of vision becomes constricted. And, I am finding, sometimes we just don't want to see what is there.
For example, I'm still taken aback by how many people-- people I know, even-- are convinced that there is no real racism in our society. Or that the criminal justice system is perfect, and that all sentences are just. In both cases, there is an emotional investment in not seeing what is obvious. Because, after all, if there is racism (and there is) or there is injustice in criminal justice (and there is) it becomes imperative that we do something about it.
In the gospels, one of Jesus's great talents is to see and hear. He knows what is troubling people. He sees beyond what others do. It is the first step of every miracle, each encounter. And maybe that is the lesson to us, as to what our first step should be.
Saturday, October 17, 2020
Presidential attacks ads are nothing new...
Friday, October 16, 2020
Haiku Friday: Cereal!
Like many people, IPLawGuy is mostly working from home these days. He set up an office in his basement, which includes seven-foot-tall speakers hooked into a turntable and amplifier, a snack area, a laser light show amphitheater, three framed posters from the movie "Plan 9 from Outer Space," a life-size bust of Ronald Reagan, and a miniature side desk and tiny chair so that one of his firm's associates can do his bidding even when he works from home.
Yesterday, IPLawGuy called me mid-afternoon from his "home office," wondering if I had any "Frute Brute" cereal. I didn't, but we did have a fascinating discussion--punctuated by his frequently commands to his law firm underling to do on-the-fly research on monster-themed cereals-- about the strange world of breakfast cereal in the 1970's. We have already discussed Super Sugar Crisp here, of course, but that was just the tip of the iceberg!
Frute Brute was a werewolf-themed cereal which was somehow related to Count Chocula, Frankenberry, and Booberry. But why does a werewolf-themed cereal taste like "frute?" Shouldn't it taste like hair? And IPLG pointed out that Fruity Yummy Mummy cereal should have tasted like rotting flesh and old bandages (a flavor profile now used by Kroger's store-brand raisin bran).
Frankenberry was eerily similar in appearance to Al Franken, and no one knew quite what to do with that:
Of course, Count Chocula is still with us in the cereal aisle and the hearts of children everywhere. And we eat even stranger stuff for breakfast, like the little rocks in a box marketed as "Grape-Nuts."
So let's haiku about cereal this week! Here, I will go first:
Toucan Sam told us
To "follow our nose," which is
Inevitable.
Now it is your turn-- Just use the 5/7/5 syllable formula, and have some fun!
Thursday, October 15, 2020
PMT: One Scenario for December, 2020
But, of course, Biden might win. And for too many people, that seems to be the end of the line-- that winning that election will solve our problems. And of course it won't. If he wins, Biden will face a disastrous pandemic that will stretch well into his presidency, an economy that is disproportionately punishing the working class in this downturn, a stunning national deficit inflated by Trump's profligate spending and tax cuts, mounting climate disasters, and damaged relations with our international allies.
And, also, probably something that no one seems to be talking about.
If Trump loses, does anyone believe he will keep his promise to "go away?" Of course not. Trump's engagement with the office shows that what he values most is being the center of attention, the "ratings." And that is why his ego will demand that if he loses in November, he will immediately start running for president in the 2024 election, to regain the office that was "stolen" from him. He will tour the country giving rallies, be a perpetual commentator on conservative media outlets, and live off of the money that the campaign rakes in.
And that may well be the death knell of the Republican Party, something that would be bad for us all. Trumpism, which is centered on international isolationism, restricted trade, and deficit-bulging spending, is contrary to what most conservatives actually believe in. Many in the party, certainly, don't think about that any more-- their personal allegiance is to Trump and whatever it is he is for that day. But once Trump is out of office, a substantial part of the party will return to principles. That division-- with 25% to 35% of the nation pledged through personality to Trump, while another 20% or so of the population revert to a belief in federalism, fiscal austerity, international engagement, and free trade (and the rejection of Trump that such beliefs necessitate).
Those two positions are irreconcilable, especially since Trump attacks "disloyal" Republicans more ferociously than any other target. That means the two factions will be unable to re-combine so long as Trump's 2024 campaign goes on. And each faction, with only a quarter of the population behind it, has no chance to win elections going forward.
That would be great for Democrats electorally, but bad for the nation in the long run. And it might just happen.
Wednesday, October 14, 2020
YLS '90: Randy Berholtz
I have been devoting Wednesdays on the blog to profiling my classmates in the Yale Law class of 1990. It's been fascinating to find out what people are up to!
Randy Berholtz is from the same small town in Pennsylvania-- Shamokin-- where my own family (on my father's side) lived. A few years ago, I spent a few days in the town with my parents, and it was fascinating-- we are hoping to go back.
I remember making that connection with Randy while we were in school. He was removed from the town by a lot of education by that point-- he had a bachelor's degree from Cornell and a Master's from Oxford before arriving in New Haven.
After law school, Randy crafted a career in life sciences. After serving as an executive, venture capitalist and lawyer with a number of companies and firms, he ended up in San Diego as the General Counsel and EVP of Innovus Pharmaceuticals while continuing his work in venture capital. He also teaches at the Thomas Jefferson Law School there. I would imagine that the students love him-- there is nothing like experience and competence in a professor for classes like Biotech law.
I won't pretend to understand the work that he does, but it is great to know that classmates like Randy found their niche.
Tuesday, October 13, 2020
Getting on the Trump Train!
This is what I think of whenever people mention the "Trump Train":
Monday, October 12, 2020
Haiku of the season
All right, guys! Good stuff this week.
The Medievalist is feeling Texas-y:
No fall in Texas,
The summer goes on and on,
90F today.
(Last line should read “ninety F today”)
And, so, understandably, is Megan Willome:
I had to ride way
out in the country to find
color, but it's there.
IPLawGuy is also in the south, and wondering where Autumn is:
Fall in Virginia
once started in September
Leaves are all still green.
But Christine is getting something in NC!:
Colors, reflective
shimmering upon water;
A lost Ibis waits.
