Osler's Razor

Today, the faculty focus spotlight shines brightly on Bridget Fusilier, who joined the Baylor faculty this fall, and teaches property and health care litigation. She comes to us from the firm of Mehaffy/Weber in Beaumont, Texas, where she became a partner in 2004. She was selected as a "rising star" among the bar by Texas Monthly in both 2005 and 2006, based on her work in medical malpractice, premises liability, and employment discrimination cases.

A native of Beaumont, Prof. Fusilier received her undergraduate degree in political science from Lamar University in 1994, where she was selected for the Pi Sigma Alpha Political Science Honor Society. More significantly, during her sophomore year she suffered a serious accident while visiting home. The Beaumont area features many large ponds of toxic waste from oil refineries, chemical spills, nuclear accidents, and poorly-thought-out science experiments, and Prof. Fusilier mistakenly drove her car into one of these ponds. While she was rescued after being completely submerged, there were lasting effects. It appears that subgenetic mutation occurred, and she gained the psychic powers of a datapath-- that is, one who can control and manipulate data with her mind. She also gained the ability to fly, though in a seated position.

Prof. Fusilier then continued her education at Baylor Law School, where she was a member of a championship moot court team and won the 1998 Writing Excellence Award, the Matt Dawson Advocacy Award, and 51 of the 52 of the weekly "Powerball" lottery jackpots in 1997. As a student, she was also called upon by the federal government to address an emergency in Chicago, where the Internal Revenue Service had stored million of boxes of documents labeled "Misc." in a giant warehouse. In just two days, she was able to properly file all 14 billion documents found there.

While in private practice, Ms. Fuselier actively participated in professional, community, charity, and superhero crime-fighting organizations. She served on various committees and boards including the Weed and Seed Steering Committee, the St. Thomas Moore Society, the Southeast Texas Family Resource Center, the X-Men, and the Justice League of America.

Prof. Fusilier's scholarship focuses on medical malpractice issues, the creation of a filing cabinet containing all known facts, and the destruction of her nemesis, arch-villian Dr. Messydesk (aka David K. Wilkenson, the Linda Sue and Gordon Davis Professor of Constitutional Law at the University of Houston). She is also the editor of the bestselling "Side-tabbed Bible," which features color-coded tabs on each page.

"We're so pleased to have Bridget on board," said Baylor Dean Brad Toben. "Her scholarship, her teaching abilities, and her solemn vow to the Justice League of America that she will defeat Dr. Messydesk bring honor not only to herself, but to Baylor Law."

I challenge my fellow Baylor bloggers, and commenters, to make Friday haiku day. My efforts for this week relate to my pending visit to Common Grounds, where I shall partake of coffee and some conversation with an actual professional philosopher. That is the kind of thing you can do as a professor. But first, the goods:

Dancing Barista,
You are shakin', not stirred;
Yes, please add some foam!

It's going to be great. Or, perhaps, horrifying. Or maybe both.
7:30, Tuesday Oct. 3, Room 127 @Baylor Law School.

We can only hope that the question will be answered: Matching taupe sweaters... is that a DO or a DON'T?

Surveys of attorney job satisfaction always seem to find that attorneys vary quite a bit in how much they like their jobs. Typically, it breaks down something like this:

Happiest: Legal academics
Pretty happy: Government attorneys, prosecutors, criminal defense attorneys
Least happy: Large firm attorneys

Since graduating from law school in the 1880's, I have been in each of these categories, and find the job satisfaction rankings to be absolutely correct, both personally and for my peers. One good informal measure of job satisfaction is escape fantasies, and I have found few professors who dream of doing something else, but big firm attorneys very often are daydreaming about doing something else.

The odd thing is that our best students overwhelmingly want the least satisfying jobs. In large part, it is the money-- they have debts to pay off. But even controlling for debt and grades, my students with no debt (due to scholarships or parental largesse) and top grades usually go off to large law firms. Rarely do they express an interest in teaching, and the top students also seem generally disinclined to criminal law.

So, why do so many of the best students choose to go off to the worst jobs (in terms of happiness)? In part, it is because we value worth in terms of money, and those jobs pay the most. But also it is because those are the easiest jobs to get-- the employers come to school and hire you! For jobs in the other categories, students have to do the hard work of making the connections with legal employers through their own initiative.

But, maybe... being happy with your life is more important than money, and is worth doing a little work for?

Try this.

Warning: Do not attempt if you are currently enrolled as a full-time student, have small children, will be operating a motor vehicle, are employed in an occupation which requires your attention, or if you suffer from heart disease, thrombosis, influenza, if you are or will in the next few minutes become pregnant, or if you have symptoms of Delayed Departure Disorder.

Take a look at the comments to the previous post ("Correction!"). I'm not totally sure about this, but it appears that Chris Fahrfenhooper, the originator of Baylor blogging with his SoTheBearSays, has begun a new life as a post-PC slacker with oddly French overtones. Perhaps, in a truly unholy alliance, the PC profs and the conservative talk radio hosts could team up to attack him through the media.

This whole French thing worries me, as Chris may turn his attention from the law and his writing and take up, for example, perfume testing on bunnies or cosmetics development. I understand they do things like that in "France."

Apparently, I goofed up on a few things in the last post. First off, I erred in saying that Prof. Wren attended Baylor as an undergraduate. In fact, he graduated from Wrenssellaer Polytechnic Institute (R.P.I.) in Troy, New York. Also, it appears I made some mis-statements regarding the Jimposing Wookie who frequently accompanies Prof. Wren. I have been told that his name is Tarfful, and that he is not Prof. Wren's "assistant," but rather his "Jedi Collaborator." I regret the errors.

Today the spotlight swings to Jim Wren, Baylor Law's newest practice court guru. Prof. Wren, who assumed his new responsibilities at Baylor on Jan. 1, 2006, has been a partner in the law firm of Williams Squires Wren Brown & Gilliland, L.L.P. since 1997. His significant cases included a $1 billion verdict against the Southground Corp, and a settlement in a medical malpractice case in excess of $4 bazillion. His firm specialized in lawsuits involving people who did something wrong, and he now turns his attention to Baylor students and the possibility that there may be some things that they do wrong.

Wren graduated with cum laude honors from Baylor Law School. He served as an editor of the Baylor Law Review and as a member of the Baylor Moot Court Team, the Baylor Mock Trial Team, the United States Olympic Judo Team, and the Hairquest 2000 Styling team. He has served for many years as an adjunct professor at Baylor Law School, teaching the Management of Totally Complex Multi-District Confusing Litigation course to third-year law students.

Wren also received his undergraduate education from Baylor and went on to earn a master's degree in international relations from the University of Kent at Canterbury, England and a Master of Laws from Oxford University, and was made a Jedi Knight in 2003 on the city-planet of Courasant.

His focus as an attorney is business litigation, including business and financial fraud, professional liability, pantheistic literature, normative theology, occult practices, and trust litigation. He previously chaired the Region 8B State Bar Grievance Committee and served as president of the Waco Chapter of the American Board of Trial Advocates. He is currently on the national board of directors of the National Board of Trial Advocacy, and on the state board of directors of the Texas Trial Lawyers Association. He also is often called upon by the Galactic Senate to settle trade disputes and related matters, and is frequently accompanied by his Wookie assistant.

Professor David M. Guinn, the senior member of the law faculty, Master Teacher and Louise L. Morrison Professor of Constitutional Law, said, "In a school of outstanding students, Jim Wren was the only one with a Wookie. He has gone on to be a superb attorney, who has handled many cases of great Jimportance. Many judges have deferred to his logic when wrendering a decision. I believe his appointment brings Baylor Law into a period where we can expect great achievements and se-wrenity."

Professor Gerald R. Powell, who teaches in the Practice Court curriculum (ranked by U.S.News & World Report as the nation's sixth best advocacy program) described Wren as "a real wrenaissance man." Powell, who serves as The Abner V. McCall Professor of Evidence Law, said, "I am very excited to have him on board with Practice Court after the conclusion of his temporary appointment. I was glad to find he was a permanent addition, not a wrental."

Wren and his wife Mindy have a daughter and twin sons in Waco schools. Wren teaches College Sunday School at First United Methodist Church of Waco, and has served as a school board president, church administrative board chairman, and as a board member of various organizations, including the Jedi Council. He is able to force people to do his will through mind tricks, and he is America's foremost practitioner of the Light Saber arts. Should undergraduates again attempt to consume pizza in the law school classrooms, Baylor Dean Brad Toben anticipates defending the school by deploying Wren, Prof. Kristin Simpson, and Prof. James Underwood to methodically destroy the intruders. Dean Toben also noted that he looks forward to posting the security video of this methodical destruction on Youtube.

It was just the teeniest bit cool here this morning, which means it might be fall. For some reason, fall coming makes me want to go to New York.

Not that New York necessarily wants me. Yesterday I received a very nicely bound copy of the opinion in Unites States v. Castillo, a case I argued in the Second Circuit last May. The forty-some pages of the opinion tell me we lost that one. It's kind of like getting a gilt-edged rejection letter from college.

Out front of Baylor Law School sits a giant greenish bear. Apparently, its official name is "Spirit Walker," though it goes by many, many names. Some love it (especially small children) and others can't stand it; such is the nature of public art.

There is always room for improvement, though, and I have some specific ideas to make Spirit Walker a better experience for law school visitors:

1) As a kid, my friend Evan Frakes had a stuffed "Smokey the Bear" with a string in the back. When you pulled the string, Smokey warned you "don't start forest fires" and "never play with matches." After a while, the tape wore down and Smokey became our favorite toy because when you pulled the string he told us to "Start forest fires" and "play with matches." Since then, I have wanted to add voices to most inanimate objects. It would be easy to put a motion sensor on Spirit Walker with a tape loop of phrases like "The best belong at Baylor!" and "Baylor Law-- come for the academics, stay for the food!" and "How about a hug?" and "Stay back-- I have a gun!"

2) Part of Waco's distinctive culture seems to be that small children are rewarded for the slightest interest in anything with handfulls of candy. I think Spirit Walker should either shoot NECCO wafers at random out of his paws or drop Malted Milk Balls behind himself.

3) Movement of some kind would be nice. He could either move his hips almost imperceptibly when people approach, or awkwardly give visitors a sideways one-armed hug, just like a real professor.

4) We could repaint the Bear and make him our mascot. Personally, though, I think the Baylor Law Mascot really ought to be the "Panda With A Flamethrower," pictured below. He would mess up other mascots, including Vic the Demon Pimp.

This morning I was all set to blog a nice little piece about the controversial giant bear statue that stands in front of Baylor Law School. For it to make sense, I need a photo of the bear, of course, so I set out across the internet. Oddly, there seems to be no photos available of The Giant Bear, and the virtual tour of Baylor Law at our web site almost seems to be avoiding him on purpose.

Anyways, having failed at that task I decided that if I could find a digital picture of a Gummy Bear, that might be just as good. That led me on quite a detour, and among other things I learned that from 1985-1991, Disney ran a cartoon about anthromorphic gummy bears who are only vaguely aware of nearby populations, yet work tirelessly to preserve their own distinctive and somewhat bizarre heritage (much like the people of Grosse Pointe).

My pursuit of Gummy photos then led me to this, which made me feel a little queasy and unable to do further research.

I’m from a family of artists, musicians and social workers. They had some real reservations about my going to law school: “Where’s that going to lead you?” Lives dedicated to service and creativity, though, are often ones to admire, and I am lucky to have been surrounded by those kinds of people.

My mom works, unpaid, at a community center on the Detroit’s East Side called “Crossroads.” It’s a great place; they provide people in need with food, jobs, transportation, and counseling. Mom’s job is to interview the people who come in and evaluate their needs. She’s quite sharp at detecting those whose stories don’t add up, and applies her full and considerable intelligence to the task of parceling out what is available. As you might imagine, there is great demand for what Crossroads has to offer.

Several years ago, my parents bought a used minivan that had only one striking feature: A huge ashtray mounted on the floor between the front seats, apparently created by bolting an inverted metal trash can lid to the frame of the car. After removing the ash tray, mom drove the van for years. By last year, it had nearly 100,000 miles on it, but had been lovingly maintained. One morning she drove it down to Crossroads as usual and parked it behind the building. While she was working, someone stole her old van. It was found later, ruined and stripped, abandoned in a park near the Detroit River.

It’s very possible that one of the people she had helped at Crossroads, at one time or another, had come back and taken her old van. When I heard about the theft from my sister, I was furious. I knew that my parents would be reluctant to replace the van (they ended up buying a used van with over 100,000 miles on it already), and that the only reason my mother was in that neighborhood at all was to help.

The next morning I called my mom to ask about what had happened, fully expecting her to be sitting at the kitchen table abject about the theft. However, when I called, she wasn’t home. She had left already, by bus maybe, to work her normal shift at Crossroads.

An Osler Phrasebook

Having spent some time with my parents and siblings, I was reminded of the odd turns of language my family developed. While these terms may be unusual, you might find them useful in certain situations. For each, I will offer a definition and appropriate use.

1) Country Hell Muffin
-- Origin: Borrowed from Plansker family
-- Something can be said to be “Country Hell Muffin” if it is both kitschy and has at least a vague rural/farming theme. For example, “Did you see that doll with the gingham hat? She’s country hell muffin.”

2) Delayed Departure Disorder
-- Origin: Created to describe common condition, circa 1986
-- Delayed Departure Disorder is a psychological condition that prevents one from terminating a vacation at the time previously arranged. It appears to be contagious. For example, “Prof. Bates was supposed to be back from Nepal last week; either his Sherpas killed him or he got Delayed Departure Disorder.”

3) We’ll Burn That Bridge When We Come To It
-- Origin: Phyllis Osler mangling of “we’ll cross that bridge when
we come to it.”
-- “We’ll burn that bridge when we come to it” describes either the
putting off of a particular decision or a general philosophy of life. It describes the life choice where one crosses a metaphorical bridge, then destroys said bridge so that it is impossible to go back. As in “Let’s not worry about the bar exam now. We’ll burn that bridge when we come to it,” or “she’s a burn that bridge when we come to it kind of girl.”

4) The Trailing Edge
-- Origin: Spike Osler evaluation of weather patterns
-- Like “We’ll burn that bridge when we come to it,” the term “it’s the trailing edge” can refer to either a specific event or a general philosophy of life. It typically is used to as an optimistic way to describe bad weather, wildfires, tuberculosis outbreaks, etc. I.e., “Canadian troops just seized Dallas, but it’s the trailing edge,” or “he won’t stop driving because of tornados—he’s a trailing edge guy.”

Today is my Mom's birthday. Last year, she taught me to bake bread, and it changed the way I think about teaching, academic writing and trial work. In short, the best way to ruin bread is to rush it-- there are times during the baking process that you have to wait for the yeast to rise. I've found that this is the perfect analogy for the need to not write by just putting pen to paper-- it is crucial to let the ideas form and rise on their own through periods of contemplation as you create your thoughts. If you rush it, the ideas do not rise to where they ought to be. I've heard ministers (such as my co-teacher Hulitt Gloer) refer to this period of thinking about things before writing as the "brooding" period, and I think that is just the right term.

If you walk by my office and I am lying on the couch, very often that is what I am doing.

How to Bake Bread, The Mrs. Osler Way!

Needed: 2 bread pans
Wire racks
Mixing bowls
Flour sifter
Cloth

Flour
Salt
Sugar
Yeast
Crisco

Step one: Mix ingredients
--Measure half-cup WARM (not hot) water into mixing bowl
--Stir in 2 packs of dry yeast (package = 2.25 teaspoons)
--Then, add 1.75 cups of warm water
--Mix in 3 tablespoons sugar
--Mix in 1 tablespoon salt and 2 tablespoons melted butter
--Mix in 4 cups of SIFTED flour
-- beat with a spoon until it falls off in sheets
--Mix in 3 more cups of sifted flour until the dough cleans the bowl
--Dump it out and let it rest for ten minutes.

Step Two: Kneading
--Knead the dough by shoving with heel of hands, fold in, turn one quarter, repeat for ten minutes
-- Round up in greased bowl, then flip over, cover with cloth
-- Then, let it rise in a warm place for about one hour (ready when two fingers pressed in leave an indentation)

Step Three: Punching it
--Punch in the middle down to the bottom
--Flip it over.
--Cover it, and let it rise for another half hour.

Step Four: Dividing the loaves
--Divide into two loaves. Round up into cylindrical shape.
--Cover for ten minutes.

Step Five: Shaping
--Flatten into an oblong shape with knuckles.
--Fold in half lengthwise.
--Flatten out again.
--Fold into thirds (by long axis), pressing out air each time with heels of hands.
--Then, fold into third the other way, sealing with hands.
--Roll back and forth over seam. Seal the ends with edge of hand.
--Place in greased baking pans.
--Cover, let stand 45 minutes…

Step Six: Baking
--Grease the tops of the loaves (lightly).
--Bake at 425 for 25-30 minutes.
--Cool on wire racks.

If you care a lot about federal sentencing, as I do, Doug Berman over at the Sentencing Law and Policy blog has reported some truly great news. The federal sentencing guidelines are crafted (with Congressional oversight) by the United States Sentencing Commission. The Vice Chair of that Commission has announced, at least tenatively, that the Commission will take up in the next year four very important issues, including crack cocaine sentences, the use of relevant conduct in sentencing, calculations of criminal history, and the complexity of the guidelines themselves. Some of the people on the Commission are among the best minds in the field, and this promises to be a fascinating year in the world of federal sentencing, between the Commission considering these issues, Congress slow-dancing with the idea of reform, and federal courts sorting out what the Supreme Court's Booker decision really meant.

To a guy like me, that's as juicy as a weekend of football.

We really are going to have Fashion Night at Baylor-- 7:30 on Tuesday, October 3, in room 127. We had a meeting today to decide on a format, and have come up with a formula that should provide for an exciting, enlightening, and sometimes terrifying evening. If you don't think I'm capable of working up a truly odd event, let me tell you about... well, no, I probably shouldn't.

What we really need right now are models. Please help us in this way to assist needy and confused law students who currently believe there are such things as "dress shorts" and "business tube tops." If you are male, please contact me at Mark_W_Osler@Baylor.edu. If you are female, please contact Prof. Simpson at Kristin_Simpson@Baylor.edu. If you aren't sure which category you fall into, you may want to contact the ISNA.

The next time I'm in Michigan and drive past the sign for 1-800-LAW-SUIT, I'll probably think what I usually do: "Dang, that's pretty good marketing." Is it "unethical?" It is in Texas, as an improper trade name, but not in Michigan. Which is part of the problem with traditional legal ethics-- it is based on a mismatched bunch of rules which are largely arbitrary and some of which are downright petty.

Matthew 22:34-40 talks about one of the times that a lawyer confronted Jesus. "One of them, a lawyer, asked him a question to test him. 'Teacher, which commandment in the law is the greatest?' He said to them 'You shall love your God with all your heart, and with all your soul, and with all your mind. This is the first and greatest commandment. And a second is like it: You shall love your neighbor as yourself. On these two commandments hang all the laws and prophets.'"

Jewish law (like the Texas Disciplinary Rules of Professional Conduct), contained hundreds of rules. Jesus told the lawyer that one way to try to comprehend all the rules would be to follow two principles which underlay those rules.

I'm not Jesus, but I have tried to learn the lesson from that story about looking to principles to understand ethical laws. In class, I'm suggesting a practicing lawyer follow three principles, as exemplified by three queries: Honesty ("Is what I am saying and implying true?"), engagement ("Am I doing all I should for my client?"), and humility ("Am I acting in the interests of my client or justice, or out of self-interest?"). I think that if you follow these principles, you will follow most of the ethical rules most of the time without constantly referring to them. Probably, I could have just used the two great commandments as the guiding principles, or other combinations-- this is still a work in progress, and I'm just a meatball trying to figure out, too.

Part of the problem with my principles, I'll admit, is that they are ambitious and do not match some common principles of our society. For example, self-enrichment or wealth maximization is a principle that also can direct action, and it is one that is celebrated and widely taught in our society. In many respects, I see how the principle of self-enrichment can be a positive social good (it is, after all, the basis of capitalism). However, if I taught self-enrichment as a legal principle, that would lead you afoul of many of Texas' ethical rules, and I don't want to do that.

In the end, my students will probably choose one of three courses to follow. I describe them below in order of what I hope for.

1) Some people will choose to be principled lawyers. They will do the hard work of determining the principles they will follow in their vocation. Perhaps some will alter the principles I suggest, but still be diligent in trying to follow them. The motive of the principled lawyer might be love for her community, society, or faith.

2) Some people will choose to be ethical, but not necessarily principled, lawyers. That is, they will worry about the hundreds of rules and try to follow them without reference to any larger principles. The motivation of the ethical lawyer is fear of getting caught.

3) Some people will choose to be neither ethical nor principled. They may justify this by saying "it's all gray area, anyways" or "no one really gets caught" or "I can't understand all those rules." I know some people will turn out to make this choice, but I hope I am never their client. The motivations of the unethical, unprincipled lawyers are legion.

Several of you have reminded me that in starting this blog I promised not only drivel, but haiku. Thus far, I have given you much drivel, but no haiku whatsoever. Today, that fallow period will end.

For those unfamiliar with haiku: This form of Japanese poetry evolved in the late 19th century from an older mode of verse called "hokku." As understood by most Americans, haiku involves a pattern of three lines of verse. The first line is composed of five syllables, the second has seven syllables, and the third has five.

For those unfamiliar with practice court: Baylor's practice court program (or "PC") is a mandatory, intense period of study for third-year students. It involves both classroom work and courtroom exercises.

So here is the haiku. I call it "Ode to the Person Who Almost Fell Asleep in My Class Today":


Awake until three
Toner tangled in her hair
A bad man, PC

Feel free to add your own haiku in the comments section.

Yesterday afternoon, we had a faculty meeting down on the second floor. As you might imagine, these can at times get a little boring, but that was not the case yesterday!

First we sang the school song. We usually belt it out a couple times at the start of each meeting.

After that, we continued the old tradition of making the new faculty fight one another up on the conference room desk while we poke them with sharpened poles. In the first round, Prof. Underwood took out Prof. Fusilier (TKO—broken leg) and Prof. Simpson defeated Prof Wren (though the illegal use of a chair was involved). In the finals, Underwood pulled out some of Prof. Simpson’s hair, but in the end Simpson threw Underwood through the plate glass window into the hall for the victory.

After that, we went down to the river and slaughtered a calf.

Comments from "Joe" to the previous footnote post reminded me of my own meandering use of footnotes. Below is fn 197 from my 2003 article in the South Carolina Law Review, "Must Have Got Lost: Traditional Sentencing Goals, The False Trail of Uniformity and Process, and the Way Back Home." I think more people understood the gist of this footnote than caught the J. Geils Band reference in the title:

"The crack trade is a business. Within that business, powder cocaine is usually converted to crack on stoves by people at the bottom rungs of the organization. A fair analogy is to a neighborhood bagel store which is part of a national chain. Walk into that shop and you will see relatively low-paid employees making and selling the bagels. That is, they convert the dough shipped to the store in bulk into the end product, bagels. Look closely and you will see that the business is structured such that these low-paid workers can be easily replaced in the inevitable event the store suffers high turnover. The instructions to make the bagels are posted on the wall, the process is kept simple, and jobs are specialized to limit the amount of skill needed. If you wanted to close down that bagel shop, it would be futile to address the problem by arresting the counter help and bagel makers because the shop is structured for them to be easily replaced. Rather, one would have to incapacitate the key men and women in the chain--those who controlled logistics, financing, or management through specialized skills not so easily replaced."

But I feel strangely competitive with Swanburg.

Legal writing is a strange creature. Sometimes, the best writing—clean, efficient, passionate—is in the footnotes. My favorite footnote of all time is (in part) reproduced below. It is footnote 163 from Justice Thurgood Marshall’s concurring opinion in Furman v. Georgia, 408 U.S. 238, 368 (1972), which struck down the death penalty statute in Georgia:

“…I agree wholeheartedly with the implication in my Brother POWELL's opinion that judges are not free to strike down penalties that they find personally offensive. But, I disagree with his suggestion that it is improper for judges to ask themselves whether a specific punishment is morally acceptable to the American public. Contrary to some current thought, judges have not lived lives isolated from a broad range of human experience. They have come into contact with many people, many ways of life, and many philosophies. They have learned to share with their fellow human beings common views of morality. If, after drawing on this experience and considering the vast range of people and views that they have encountered, judges conclude that these people would not knowingly tolerate a specific penalty in light of its costs, then this conclusion is entitled to weight. Judges can find assistance in determining whether they are being objective, rather than subjective, by referring to the attitudes of the persons whom most citizens consider our 'ethical leaders.'

I must also admit that I am confused as to the point that my Brother POWELL seeks to make regarding the underprivileged members of our society. if he is stating that this Court cannot solve all of their problems in the context of this case, or even many of them, I would agree with him. But if he is opining that it is only the poor, the ignorant, the racial minorities, and the hapless in our society who are executed; that they are
executed for no real reason other than to satisfy some vague notion of society's cry for vengeance; and that knowing these things, the people of this country would not care, then I most urgently disagree.

There is too much crime, too much killing, too much hatred in this country. If the legislatures could eradicate these elements from our lives by utilizing capital punishment, then there would be a valid purpose for the sanction and the public would surely accept it. It would be constitutional. As THE CHIEF JUSTICE and Mr. Justice POWELL point out, however, capital punishment has been with us a long time. What purpose has it served? The evidence is that it has served none. I cannot agree that the American people have been so hardened, so embittered that they want to take the life of one who performs even the basest criminal act knowing that the execution is nothing more than bloodlust. This has not been my experience with my fellow citizens. Rather, I have found that they earnestly desire their system of punishments to make sense in order that it can be a morally justifiable system.”

I've heard some intriguing theories about who shot out the windows in my car last week. Sadly, none of those theories are from the police. However, a new group of suspects has come up; a rival crew of law profs who blog under the name The Volokh Conspiracy. They are mostly an East-Coast crew who clashed with my posse of midwesterners before, primarily over the issue of the federal sentencing guidelines. So, I'm thinking about rounding up my boys representin' Ohio State and Marquette and such and putting some major intellectual hurt on these suckas, in lieu of the traditional shoot-out in front of the Hot97 studios.

Word.

Canadian Immigration Officer: What is your occupation?
Me: I'm a teacher.
Immigration Officer: What is it you teach?
Me: I teach criminal law subjects at Baylor Law School.
Immigration Officer: Baylor... is that accredited?

[Sigh] We perhaps need to do some more marketing in Canada, with more trumpeting of our accreditation status and fewer photos of me and Prof. Bates.




(You may be wondering why Prof. Bates is wearing goggles in this photo, taken after our 2003 ascent to the highest point in all of Iowa. I'll have to explain that later)

I went to Bellingham, Washington this past weekend. It’s not a big tourist destination, though there are plenty of reasons it should be: A beautiful harbor features ferry service to Alaska, the town sits in a spectacular natural setting, and just to the east lies 10,000 foot Mt. Baker, which features glacial skiing and some of the country’s best snowboarding runs.

I went there to see a garden, up near the woods where some railroad tracks had been pulled up years ago. It isn’t a famous garden, or one you might even notice as you drove by, but I had to see if it was still there.

My grandparents moved to Bellingham in the 1950’s, and bought a house on the shores of Lake Whatcom. They came from Pennsylvania, where my grandfather had failed as a farmer as a young man, taking over an uncle’s farm and trying to support his family after the death of his father. When the crops didn’t come up, he worked as a telegraph operator, learned accounting through a correspondence course, and served in the Army through World War II. He moved with his family to Bellingham for a job, leaving behind almost everything and everyone that he knew. Once there, he and my grandmother dug deep roots quickly. They and their friends started the museum, worked to build up the college (Western Washington) into a University, and took over the ski area on Mt. Baker when it faltered. He went into accounting in the town, and his firm (Metcalf Hodges) is still there.

I lived with these grandparents for a bit when I was 16 years old—I got a job driving a tractor harvesting peas on the nearby farms around the smaller towns of Lynden and Ferndale. Taken out of my little suburban high school world, I saw exactly the way in which my grandparents were good, decent, hardworking people. When I talk about honesty, engagement, and humility in class, it is often their lives I think of.

Later, when I was in law school and after the death of my grandmother, I went up to Bellingham to visit my grandfather, who was suffering from Parkinson’s, and who passed away a few years later. That weekend, it was just the two of us, and he took me to a few events held that weekend which were honoring him—at the museum, at the college—for the role he had played in the community. Before I left on Sunday afternoon, I felt the need to say something about what I had heard people saying, to echo their compliments. I told him in an awkward-grandchild type of way that I was proud of him. He waved that off, saying that he just did what you were supposed to do. But then he said “let me show you what I really am proud of.”

That’s when he took me back through the huge pines to the garden. The space he had blocked out with old railroad ties wasn’t big, and I didn’t see any flowers or fruit on the plants. He stuck a spade into the earth and pulled up a potato. He handed that potato to me, still covered with the rain forest dirt that comes from the death of a thousand ferns. “I can do that,” he said, in a way that was both proud and sorrowful.

I suppose that it mattered because there once was a mother he could not support, when the spade had yielded nothing, sixty-some years before. That through the depression and the war and the struggle to come back and the children and the move to the other side of the world, that moment had been waiting.

That’s why I went to Bellingham. And there is still a garden.

Just in case anyone is confused, the point of fashion night is not to get people to dress like me. Any hint of such will bring forth many painful stories from IPlawguy, who knows what I wore as a student. I just want to organize it, and let Prof. Simpson and others who know what they are doing handle the heavy lifting.

Though I may have a few tips on what to avoid (male division) drawn from this year's PC experience.

Hee hee-- that should get some people thinking. Evil, huh?

Today I am driving from Vancouver down to Bellingham, Washington.

I was thinking, though, that it is an interesting blogging world we have at Baylor. From what I can gather there are about three active bloggers besides me, with the retirement of SoTheBearSays (the grandfather of them all): FromMalibutoWaco, Ladybird2, and Poseur (all linked to the left). A normal blogging community consists of people who know each other via blogging, but not in person.

The twist on our little world is that this fact is pretty much true even though we are all in the same building every day. Because I teach upper level classes and the bloggers are not yet to their third year, I don't see them in my usual interactions with students. While I enjoy the repartee with Swanburg (FromMalibutoWaco) here, he probably isn't sure which of the profs heading off in a gaggle to lunch is me.

There is a doctoral dissertation for a sociology student in there somewhere. And, yes, the proper term for a migratory group of professors is "gaggle."

[This is not a joke]

What you wear is never going to win a case for you, or bring in a big client. However, it can drive people away if you look like a biker-hog or something like that. You do want to be properly attired in the office and in court, and we are here to help.

Prof. Simpson and I have organized an evening of sartorial advice and entertainment, in which we will offer suggestions and examples of what to wear-- and what NOT to wear, for both men and women. The exact format has not yet been determined. We could have brief lectures followed by a fashion show of good and bad examples. Or perhaps a Project Runway-type event with Dean Jackson in the role of Heidi Klum. At any rate, we will need models so that Prof. Bates doesn't have to do it all. Feel free to volunteer in the comment section, or offer suggestions for the format.

Fashion Night will be Tuesday, October 3, at 7:30 pm in Room 127 of Baylor Law School. All are welcome.

Last night about 10:30, someone shot out the windows in my car. As often happens in situations like that, a crowd of neighbors gathered in the street, the police arrived, and we all fussed over how this happened. It either was just pretty dumb (if it was random) or really scary (if it was directed at me personally), but mostly I was fascinated by the glass itself. It didn't shatter, but rather broke into a bunch of little pebbles. In fact, even the window that was hit three times was still mostly in place, but simply fractured into a thousand pieces held in place by the bow of the window.

I knew before how safety glass works, but had never really touched it, held it. It was so much like the ice that we loved to play with as kids in Michigan after a cold night-- the top of puddles would have a half-inch of shiny ice, and if you sunk a heel into it, the ice would make a wonderful squeeking-cracking noise and break into those pebble-pieces, which we would pick up and examine or throw at one another. It was pretty amazing that temperature could make something so average, a puddle, into something with such amazing new physical properties.

Probably I should have been out there with the neighbors raging against crime, but I do that professionally, and know this is not such a big deal. My mind turned to the past in part because tomorrow I will be somewhere I haven't been since 1992, a trip that will be sad and important and hard.

I'm kind of nervous about tomorrow. Will it be faculty Friday? Will the baristas do their dance for me? What kind of mayhem will ensue? I will just have to wait until about 8:30 in the morning to find out.

Browsing around the student blogs (and from the demeanor of certain students today) I gather that last night was the "Law Buddy Party." Apparently, a giant supercomputer matches older students with younger students to create pairs of "Law Buddies" who then... well, I'm not sure what comes next, but it seems that there is often the fervent hope that one's law buddy will be an attractive member of the opposite sex.

I didn't know this was coming, but I recently received a letter from my dean telling me that I am basically the "faculty buddy" to one of the new faculty members. [I'm not making this up] We are supposed to attend in tandem a series of six dinners at Harrington House, where we will be entertained with a bunch of lectures about Baylor.

Sadly, the Dean did a lousy job of building up any suspense at all about who my faculty buddy was going to be, as the students apparently do. I would have enjoyed standing anxiously as the pairings were announced at Buzzard Billy's, but the letter just blurted out the secret.

And my faculty buddy is... Jim Wren. Which, frankly, is kind of intimidating. Prof. Wren is one of the best-known trial lawyers in the state, and widely respected for good reason. The first time I heard of him, I was at a restaurant with a judge in town, who nudged me and said, "You know who that is?" while gesturing at the celebrity in the corner... Jim Wren.

So, this is pretty much like having Roger Federer be named your "tennis buddy."

I do have the laser pointer. Perhaps I can impress him with that.

In the second part of our “Meet the Faculty” feature, today the spotlight shines brightly on Professor Kristin Schroeder Simpson!

Professor Simpson teaches in Baylor’s LARC (Legal and Religious Correspondence) program, which is required for all first year students. Together with Prof. Rory Ryan, Prof. Simpson provides the students with all the skills they need to succeed in the Nebraska legal community. Her legal scholarship focuses on Writs of Mandamus and notes to pastors who have impregnated one’s daughter.

Prof. Simpson received her undergraduate degree from Texas Christian University, where she received many awards, including third place overall in the NASCAR Craftsman Truck series. She continued her education at Southern Methodist University’s Dedman School of Law, where she graduated at the top of her class. During law school, her student article “Preacher, You Done Knocked Up My Daughter!” was published by the Cornhusker Family Law Journal and voted “Most Useful Article” for that publication in 2004.

After law school, Prof. Simpson traveled to Japan where she studied Kendo, the Japanese “Way of the Sword” practiced by samurai for centuries. After three years of study, she defeated her master in battle and was crowned with a tiara of thorns in an elaborate ceremony atop Mount Fuji. She still practices her Kendo skills daily, and uses them to great advantage. During her interview at Baylor Law, Prof. Simpson not only presented a lecture on the topic of “The writ of mandamus as a tool of the civil defendant in state courts” but knocked Prof. Serr cold with her Kendo sword (the “shinai”) when one of his several questions ran long.

Upon completion of her studies in Japan, Prof. Simpson returned to her native Nebraska, where she worked as an associate at the law firm of Lembolte Ludtke, LLC. While at Lembolte Ludtke, Prof. Simpson served in a pro bono capacity as the Governor of Nebraska, a position which rotates among the relatively few citizens of that state according to alphabetical order.

As required by Nebraska law, Prof. Simpson is married to her high-school prom date. They live in a sod hut with their son, Bart (8).

CORRECTION: Apparently, there were a few things about my description of Prof. Simpson that were not completely "accurate." I would like to correct those. First of all, the crown she wore for the ceremony atop Mt. Fuji was made of lotus stems and the teeth of her defeated opponents, not thorns. Second, her term as Governor of Nebraska was not technically pro bono, as it was required as part of court-ordered community service. Finally, her son is not named "Bart." His name is Orenthal James. I apologize for the errors.

The presentation at the Baptist Church went pretty well, but in the future I probably would refrain (in church, anyways) from explaining that Marcel Duchamp meant "LHOOQ" to mean "she has a hot ass."

Now, I'm very tired. We had practice court exercises all afternoon-- the good news is that many of them were pretty good, and a few were excellent. I did have my first opportunity to sing Stonehenge by Spinal Tap in reaction to a tiny little exhibit, but I refrained. Tomorrow, I plan to turn it up to 11, though.

However, I'm troubled by a recurring dream that I have been having. In the dream, I walk into my class at the 11:45 starting time and all 90 students have been replaced by unknown people of wildly different ages, from babies in one seat to elderly people in the next. None of them seem to have any idea why they are there.

What could that mean?

I'm about to head over to give this lecture at 7th & James, and Ricky Lovecky lent me a laser pointer! Oddly, even though I'm about to speak on the greatest artistic works of Western culture and the bedrock principles of legal ethics, all I want to do is play with this laser pointer! It's proving very difficult to stop myself from pointing it at cars and certain people walking by.

Of course, sometimes I still pretend that the parking brake is secretly a missile launching system.

As a special feature over the next few days, I will be offering a snapshot of some of the exciting new faculty members at Baylor Law School. Today, the spotlight swings to Mr. Torts, Prof. Jim Underwood!

Professor Underwood was a member of the faculty at Stetson University College of Law in St. Petersburg, Fla., from 2002 through 2006. While there, he taught courses in Civil Procedure, Federal Jurisdictionally Complex Pretrial Procedure, and Federal Conflicts of Complex Interstate Procedural Jurisdictioning Litigational Process. The students at Stetson’s law school voted Underwood the best teacher on Stetson’s law faculty and awarded him the “Golden Ball Of Cash” award. He was also elected to the Stetson University Intramural Hall of Fame, and served for three years as the left guard on Stetson's I-AA national champion football team under the secret identity of Tim Tyler.

His teaching career follows 14 years of private practice as a Texas trial lawyer. He spent 10 years as an associate and 12 as a partner with the law firm of Thompson & Knight in both its Dallas and Houston offices and 18 years as a partner in the Dallas office of the international firm of Akin, Gump, Strauss, Hauer & Feld. For 19 years previous to that, he was a partner with Thompson, Gump, Hauer, Feld, Knight & Akin, which was preceded by nine years in a federal detention facility. During Professor Underwood's last four years of practice, he lived in a van down by the river and worked part-time as a motivational speaker for families with troubled children.

Professor Underwood received his undergraduate degree from Hampshire College in 1984 where he was a Cheney Scholar in Public Affairs. He graduated first in his law school class in 1987 from The Ohio State University College of Law where he served as the executive editor of The Ohio State Law Journal and was the author of an award-winning case comment on the topic of "Interpreting Complex Jurisdictional Litigation Thingees With Procedural Conflicts."

Professor Underwood originally was manufactured by the East German Government as either an Olympic swimmer or cyborg killing machine. The East German project that led to the creation of these cyborgs was discontinued in 1971, and young Jim was placed in a loving home with the Underwood family in Brownwood, Texas.

Professor Underwood has been married to Carol Underwood for 20 years. They have 12 children, including Paris (19), Ashley & Mary-Kate (19), Shaun (18), FNU LNU (17), Travis (14), Tyler (12), Mason (10), Ash (8), Tanner (7), Calvin (6), Suri (4 months), and one they have not identified. He spends his free time rooting for the Dallas Cowboys, gardening, and fighting crime as "The Exterminator."

The direct/cross examination exercises in Practice Court have reminded me of some high- and low-lights of the past. For example, transcribed below is my memory of a terrible direct examination from a few years ago. The student recruited a replacement witness at the last minute and brought him up to speed on the facts of the case, but left out a few crucial details. To his credit, he did use the technique of impeaching by prior inconsistent statement. Remember, this is a direct, not a cross-examination:

Attorney: Could you introduce yourself to the jury?
Witness: [brightly] Hi!
Attorney: Well, could you state your name for the record?
Witness: My name?
Attorney: Yes, so it's on the record.
Witness: Um.... David Smithers.
Attorney: "David Smithers?" Are you sure?
Witness: Yes?
Attorney: Do you remember taking a deposition in this matter?
Witness: I think so.
Attorney: [Approaching with deposition] Is this your deposition? [witness nods] Ok, read along with me here on page one, "My name is Walter Davidson."
Witness: Oh, right. I'm Walter Davidson. Sorry, man.
Attorney: And where do you live?
Witness: Me?
Attorney: Yes, do you live here in Nita?
Witness: I live in a blue house.
Attorney: Do you know the address?
Opposing counsel: Objection! Speculation! He's clearly asking the witness to speculate on something he doesn't know!
Judge: It's speculation to ask for his own address?
Opposing counsel: With this guy, yeah.
Witness: I do live in a blue house...

I couldn't let them go any longer, since my lunch was about to come out of my nose.

1987 was a long time ago. I was a first year law student, loving every minute of it. I lived a beautiful room in the law quad with Whit Cobb, and at the start of October the maple trees caught fire and turned New Haven and most of Connecticut red and yellow, a bronzing carpet over the sidewalks. I walked out to football games at the Yale bowl with Jon Nuechterlein and Mike Schwartz, and I got in a brief dispute with the Yale mascot, Handsome Dan, when he overheard my comment that he "looks like a squirrel."

For some reason, my friend Greg Tishar got me involved with the presidential campaign of Paul Simon, a Democrat Senator from Illinois. One Friday night late in October I took the train down to New York, arriving into the buzz of Grand Central Station, which was a wonderful feeling. I walked south on Park Ave. to the Simon HQ on 19th and met up with the usual suspects; Greg, who remains my most-cultured friend, Jake the Insane Paralegal, another guy who called NPR "National Pretentious Radio," and an attractive blonde schoolteacher. I don't remember much about the meeting, other than that it dissolved into most of us heading over to the Old Town, a bar on 19th Street with good hamburgers and a crowd of real people.

We spent some significant time at the Old Town, until they closed it up. Jake told me about why a person should only own one pair of shoes, and I met a woman who claimed to be a toll collector on the Tri-Borough Bridge. Drinking may have been involved. As they moved us out, we wandered into the street with the others, a chattering huddle on the curb reluctant to leave a warm place.

Greg and the schoolteacher and I headed out into the night. It was 2 am in New York, and there were lots of people out doing the same thing we were. It was easy to make new friends. We walked past a fire station with a bench full of firemen sitting there. They called out to us as we passed (well, they called out to the blonde), and we sat on the stoop next door and talked for a while. They made fun of Michigan, and I made fun of New York, and they tried to convince the schoolteacher to come back for a tour. They were young guys, mostly, our age at the time. They laughed a lot, and every once in a while more people would come and sit with us, swapping stories. An hour or so later we went on our way, and I remember thinking "Those guys, they have a great job."

When I woke up this morning, it was those guys I thought of.

Sadly, the only barista working this morning was a wiry young man with an intense focus on making coffee. Which means the coffee was great, but no one was waving their hands in the air like they just don't care.

While in line, though, I overheard a great conversation. One undergrad was telling another, "We were middle class. People don't know this, but most of Highland Park is middle class-- it's not like we're Bill Gates."

For those of you outside Texas, Highland Park is a very wealthy Dallas-area community, and probably one of the wealthiest areas of the country. As someone who spent part of his youth in Grosse Pointe, Michigan, another wealthy suburb (and apparently the home of Homer Simpson's wealthy brother Herb), I have often heard similar comments in which those who live in relative wealth identify themselves as middle class.

Actually, almost everyone in America defines themselves as middle class. Sometimes there is a slight qualifier, such as upper-middle class or working class (which is usually seen as part of the middle class), but if you count on self-identification, the U.S. has an upper class of two (Bill Gates and Warren Buffett) a middle class of 281,421,903, and a lower class of one, that being a homeless guy in Portland, Oregon.

So, why doesn't anyone want to be in the upper class or the lower class? I suspect part of it has to do with judgment and expectation. We don't want to be viewed as rich snobs or as dirt poor, and judged for that. More intriguingly, I think people probably don't want to take on the responsibilities that go with those labels. If a person is upper class, they should have a responsibility to share with others their wealth and power-- with such an archaic position goes the duties of noblesse oblige (a duty which, to his credit, Bill Gates is fulfilling). On the other hand, if someone is lower class, it implies an obligation (especially in America) to better himself. If we are middle class, though... we can pretty much be content to stay the way we are, without giving to others or trying to do much better.

A faculty buddy of mine read the post regarding the dancing at Common Grounds last Friday, and has roped me into revisiting CC tomorrow morning with him @ 8:10. I think he is hoping the baristas will once again wave their hands in the air like they just don't care, but it's more likely we'll just end up with some coffee.

I'll let you know.

When I started blogging earlier this week, I approached it as what they call in the retail world a "soft opening"-- I just started writing and didn't tell anyone. If anyone wandered in, that would be fine. Now that a few people have noticed and are checking in, I should explain my project a little.

I'm a teacher. It's a great job, the best job I can imagine. I'm lucky enough to work at a school where the students are very hard-working, diligent, passionate, and interesting. My colleagues, likewise, are extremely hard-working and passionate. I worry, though, about the interaction between these two groups. I fear the students think (with some reason) that we profs present ourselves as Gods of the Law who periodically descend from the 3d floor to scatter doctrine around like bread crumbs and then retreat to our aerie.

I figure it wouldn't hurt to share some recipes now and then to break down that stereotype.

There are limits, of course. I will not refer to students by name unless I am handing out a compliment. Also, I probably can't comment on any controversies involving the administration of the law school. Finally, there are some details of my life I won't divulge here for the simple reason that because of my work as a prosecutor, there are people getting out of prison who might hold a grudge, and I need to protect others from that threat. I'm fine if they come after me.... he he he. I've got Vic the Demon Pimp on my side.

At a school like Baylor, which tends to be intense, community is an important thing. I want this to be a good thing for that community as a whole, because that place, those people, are at the center of the vocation I have chosen.

We're about to begin working on direct and cross-examination exercises in Baylor's Practice Court program. These are always quite an adventure, and somewhat painful for all involved. Here's one tip:

While it is important to "warm up" a lay witness on direct examination with friendly questions on his background, be careful not to overdo it. A few terms ago, a very talented student was in the role of a criminal defense attorney defending a particularly heinous sex offender/murderer. Her direct examination of him began this way:

Attorney: [Flicking back her hair] You and I have gotten to know each other already, but I'd like to...[purring voice] share some facts about you with the jury.

Sex offender/murderer: Uh, ok, sure.

Attorney: [Lowering head and offering a steamy come-hither look] Well, I know what I find most interesting about you... what do you think we should tell them?

Sex offender/murderer: I'm 28 years old. I'm living over at the jail.

Attorney: [Coming from behind podium and approaching witness while throwing back her hair]: Really? What is that like?

Sex offender/murderer: Uh, not so good? Bad?

Attorney: [Reaching out seductively to touch the front of the witness box]...

Me: Stop! Stop!

Attorney: What? Was that ok?

Me: What are you doing?! Are you going to start making out with him?

Attorney: Well, you said to try to warm him up...

She had a point, as I had neglected to suggest reasonable limits. It was the highest level of interest I have ever seen in a jury though-- they were begging me to let her continue that line of examination.

It was an interesting evening. I walked over to the Stadium to see Baylor play its second football game. In retrospect, I made a few mistakes. First off, I wore the opposing team's color, which would be understandable if it was blue or red, but it was this garish Prince-style shade of purple, a bizarre shade which I happen to have an entire shirt of. Second, I made the mistake of referring to the opponent as a Louisiana Directional School before remembering that it is the alma mater of Dan Sorey, the largest member of the heaviest mock trial team in Baylor history-- the famous "Half Ton of Fun" Squad of 2002, which weighed in at over 1,000 pounds for the four members, even with Meredith Campbell contributing barely a hundred pounds of that total.

The game was a blowout 47-10 Baylor win, but that does not mean it wasn't fascinating. Partway through the game, I noticed the Northwestern State (La.) mascot on the opposite sideline. This, uh, thing is apparently named "Vic," and appears to be a composite of features drawn from Eddie Munster, Richard Nixon, a Vulcan, and a goat. After some research, I discovered that Vic is supposed to be a demon pimp of some kind. Wow! Now that's a mascot!

Vic is famous for this fight with the mascot of another Louisiana Directional School. Scary stuff.

Which led me to think that maybe Baylor Law School needs a mascot. Any ideas?

CORRECTION: Dan Sorey has written to me to inform me that he played football at NORTHEAST Louisiana (now Louisiana-Monroe), NOT Northwestern Louisiana. In fact, his alma mater is the home to Chief Big Head who beats up Vic the Demon Pimp in the video. Sorry, Dan. Don't hurt me.

As a kid, my Uncle Scott was an intriguing character. He had one amazing talent: He made incredible hamburgers on the grill. You would think this would be no big deal-- making a burger is such a simple thing that everyone should be able to do it. But once you had one of Uncle Scott's burgers, you realized everyone else's was junk.

He taught me the three keys to the perfect burger:

1) Use ground chuck. A certain amount of fat is necessary for a good hamburger.
2) For spicing, use only salt and pepper, on both sides.
3) (and most important) Once the burgers are on the grill, only turn them ONCE. The less the burgers are handled, the juicier they stay. Since it is those juices that lend the meat flavor, you want to keep them in there.

If the Nuge comes over here for lunch sometime, that is probably what I would make.

Today, after my exciting Common Grounds experience, the dining/music theme followed through again at lunch, as I found myself sitting at the table next to fabled rocker Ted Nugent. Apparently, he often goes to that Thai place no one knows the name of (They should put up a sign labeling it "The Thai Place" or maybe "Siam Serr"), a trait he has in common with the law faculty.

I go way back with The 'Nuge, though we have never met (and didn't today-- I couldn't see him and didn't realize he was behind me until his monster truck rumbled out of the lot). In fact, we are maybe the only two people who have made the unusual life choice of living in Detroit until middle age and then inexplicably moving to Waco.

My favorite story of The 'Nuge dates back to our days in Detroit. My family sponsored a refugee from Poland to come to the US after several years in a refuge camp. Jadwiga came knowing almost no English, and not much about our culture. What she did bring to America was an abiding love for the Scottish rock band Nazareth. Fortunately, Nazareth was playing at an East-side dive, Harpo's, shortly after her arrival. My brother agreed to take her to the show, which was a rockin' good time. The highlight, reportedly, was the encore, in which Nazareth played their hit "Hair of the Dog" and were joined by The 'Nuge onstage.

She came back from the show beaming, and saying the first English sentence I heard from her: "The 'Nuge visit Nazareth!'"

For anyone who is interested, I will reprise the first day's lecture for Professional Responsibility class on Wednesday, Sept. 13 at 5:50 at 7th and James Baptist Church in Waco. The lecture will be in Harper Hall, which is in the building next to the main sanctuary. All are welcome. The church is located, uh, at the corner of 7th and James.

For those of you not taking PR, I have structured the class around three principles: Honesty, engagement, and humility. To frame these principles, for the first class I used art from several eras. You can access a list of the paintings and a powerpoint slideshow here-- just click on "Professional Responsibility" and then choose the powerpoint.

At the edge of Baylor's campus is a goofy coffee place-- Common Grounds seems to have located at random into an abandoned house, keeping the furniture and fixtures left behind by the former low-budget occupants. It also has great coffee.

Between 8:10 and 8:20 in the morning, I am kind of a zombie. My communications are limited to grunting noises and nods of the head, and I tend to walk into things. Well, this morning what I walked into was Common Grounds. As soon as I entered, one of the two baristas asked me "Are you faculty?" I told her I was, and she and her fellow worker started doing the "faculty dance," which consists of waving your hands over your head and bobbing your head like a turkey. It was pretty fun.

My question is about etiquette. In this situation, should one:

a) Join in doing the "faculty dance"
b) Look awkwardly out the window
c) Throw money, or
d) Draw a concealed firearm (this is Texas, so I had to include that)

As a kid, I learned it was really a losing proposition to have any one person be your hero-- if you invest too much in a person being perfect, you always end up feeling let down. Instead, I started to develop a system of fractional heroes-- where I admire certain qualities of several people, without weighing any one of them down with undue expectations. One of my many such heroes is fellow sentencing geek and Ohio State Law Prof. Doug Berman.

About two years ago, Doug started blogging at Sentencing Law and Policy. Like most things that end up changing the world, at first his blog seemed an afterthought in the realm of legal scholarship. Some of us sentencing folk posted comments there and checked it daily for updates in our little world. But, those were heady times in the world of federal sentencing-- the Blakely bomb had been dropped by the US Supreme Court, and Booker was on the way. Soon, Doug was racking up hundreds of thousands of hits, and his blog became the center of our community of scholars and practitioners. In no small part, this was because of Doug's ability to write short, punchy, meaningful posts that are unfailingly compelling. It was the first blog cited by the Supreme Court, an incredible breakthrough, and is recognized as one of the most significant blogs (and perhaps the most significant blog) in the field of law.

Perhaps more than even Doug knew, things began to change, in part because of what he had done. Last year, we began to work together on a series of U.S. Court of Appeals briefs addressing the crack/powder sentencing disparity in federal courts. Our first target was a case in the the First Circuit, US v. Perry. I drafted a brief with Doug, and we prepared to submit it to the court. A few days before the brief was to be filed, Doug posted it on the blog. Within a few hours, the AUSA on the case, others involved in the action, and several students had either called or emailed me. Within the next few days, the First Circuit pre-empted Perry with an opinion in United States v. Pho that seemed a little hurried. The world had changed. The blog had a power we perhaps underestimated.

The work of Doug and others to make blogs the center of information in specific legal fields was at the expense of the archaic, ponderous realm of traditional legal scholarship, where 100+ page articles are written, considered by editors, accepted for publication, edited, and finally published a year or two later. While this model works for long-term policy analysis and development (up to a point), it was always too slow to respond to or influence faster-moving legal developments.

Not surprisingly, top law reviews at Harvard and Yale have now reacted to this development by creating on-line journals with shorter articles and quicker turn-around. This development was necessary, if such journals are to remain relevant in an exchange of ideas with practitioners, courts, and litigants.

But it was Doug and a few others who lit that fuse. Not bad for a Harvard guy.

As some of you know, I am in the middle of writing a book on Jesus Christ as a criminal defendant. There are several themes which emerge, revealing similarities between the trial of Christ and modern criminal issues. A few weeks ago, I wrote a very short chapter comparing our modern obsession with the last meals of convicts about to be executed with the Last Supper. I have included below the final paragraph (the entire chapter is available at www.ssrn.com):

"We are somewhere in between the Savior and the killer. We exist in that wide chasm between the murderer and Christ; yet our common experience meets the murderers in the precise place where it meets the life of Christ. There is an elegant symmetry between the Christ who is perfect beyond our comprehension and the murderer who is flawed beyond our comprehension, and their experiences are like ours in only the most basic of ways. As the murderer picks up the bread, so did Christ, and so do we. Though Christ and the murderer come to us from opposite directions, something inside compels us to try to understand both, and in that attempt to understand we are pulled toward those few brief moments where we share something like the feeling of bread in our hands.
Food… that, we understand."

Yesterday I received a beautiful engraved invitation to the formal investiture of Brett Kavanaugh as a Judge of the DC Circuit. Some of you might be surprised that I am invited to the investiture of one of the Bush Administration's more controversial picks for the bench, given that I spent part of my summer arguing for the ACLU in various (other) federal circuit courts. But, as they say on Facebook, "it's complicated."

Brett's nomination was held up for years by Democrats in the Senate, and even when other controversial nominees such as Priscilla Owen were confirmed he was left to languish. It was a real loss-- Brett is smart, fair, and will make a great judge. Last Spring, several us who have known him since law school wrote a letter supporting his confirmation to the Senate Judiciary Committee, and signing it made me kind of sad; sad that political division in this country has become so acrid and hostile. My friends over at the Bosque Boys have discussed this quite perceptively.

I probably won't go to the investiture, though. DC is a dangerous place for me, ever since 1988, when that Roy Rogers manager chased me down K Street yelling something about stolen chicken.

The two days of watching opening statements were... long. Very long. In all, though, this group is above average, and this is the first group in years where no one devolved into a terrified, silent statue. Also, no one committed a felony by bringing a real gun into the school. A few tips, though:

1) Avoid the use of air quotes. If you are the prosecutor, it really undermines your credibility if you make the air quotes sign every time you say the defendant is "guilty."

2) Check your fly BEFORE standing up, not as part of your introduction of your client.

3) If you stall out for a bit, don't fill up the silence by sighing deeply with your hands on your hips while shaking your head from side to side in a resigned sort of way.

4) If you are miming an imaginary gun firing as part of a homicide, it is usually unnecessary to include sound effects ("BLAM! BLAM!" "Aaaaaaaggggg...")

Sadly, Chris Fahrenholdt over at SoTheBearSays has ended his string of successes as chronicler of all that is Baylor Law. Though I was the prof. and he was the student, I must admit that I checked it every day.

In starting Baylor Law's First Known Blog by a prof, I lack the freedom that Chris had-- I can't, and won't, comment on many Baylor controversies.

There are, however, lots of other controversies that I CAN comment on, including the "What the Heck Happened At Facebook?!?!" controversy brought on by that site's conversion to a format akin to one of those ADD-style cable business channels where there are three or four bands of information blocking out the show. It's distracting, stalker-enabling, and somewhat overwhelming.

But, like lots of the other people complaining, I kind of like it. Do I care that Gordon Davenport has posted a comment on Margaret Chen's wall? Whether I do or not, I can't help myself from chasing it down and reading it.