Wednesday, February 28, 2007


Baylor History, Part 13

The President of the University during this period, Samuel Palmer Brooks, ruled Baylor for nearly three decades. Among the advancements made in his administration was the completion of several major buildings, including Morrison Hall, the Fashion Pavillion, and the Tidwell Bible building. In celebration of the school’s many victories over Judge Baylor’s escaped feral bears (and their progeny) and over the opposition of those bears serving on the Board of Intenders, Brooks also expended nearly $42,000 for a gigantic green bear, which was known by its German title of "GummiBayer" until the advent of WWII. It now stands, of course, near the Baylor law school.

Perhaps most notably, Brooks in his second decade initiated an ambitious program of improvement grandly titled “Vision 1930.” Unveiled in 1918 and planned for completion in 1930, Vision 1930 was broken into eight goals, or “imperatives.” As initially unveiled in 1918, these goals were both directive and challenging. These imperatives have previously been described here, but of particular note was "Imperative 1. Baylor’s Administration and Students Must Seek Out and Kill The Leaders of Texas A & M University. Baylor will seek to maintain a culture that emphasizes vengeance against those who sully our honor, especially those who do so from Texas A & M University. Believing fully in the Christian concept of a just war, we are assured God will aid us in this fight."

In the end, the President, Provost, and several deans, professors, lecturers, special education teachers and footmen associated with Texas A & M died in mysterious circumstances and were found dismembered in the desolate plains surrounding College Station.

Naturally, Baylor was unfairly blamed for this, simply because the leadership of the school had declared the causing of such tragedies their number-one priority. Expecting retaliation, Baylor officials concocted several schemes to protect the school. One plan, designed to exploit the Aggies’ extreme fear of homosexuals, was to protect the perimeter of campus with a special “Pansy Division” which would be recruited from the West and East coasts. Though several hundred young men were recruited to the effort (and later enrolled as students, in accordance with a secret program which may still be in place) the governing Board of Intenders nixed this idea before it could be fully implemented. Thus, Baylor was forced to rely upon the Texas Rangers, the campus police force, Sailor Bear, and specially-recruited members of the Johnny Torrio organization in Brooklyn (some of whom were awarded full professorships) to protect the campus. Working together, these groups were able to develop several methods to keep marauding bands from A & M at bay. One technique called for the campus police to stop A & M students traveling in motor lorries, wagon trains and even armored locomotives towards Waco, and babble incoherently about parking stickers. While the Aggies were distracted, Sailor Bear would enter the vehicle through the passenger side and maul the occupants, seeking only the reward of a bottle of Dr. Pepper.



And The Osler For Coolest Home Accessory Goes To...

Tydwbleach, picking up her second Osler this year, for having a Hammond B-3 Organ in her dining room. Seriously, the Hammond B-3 is one of the instruments that changed American music.

It was invented in the 1930's as a cheaper, mobile version of the church pipe organ. It is an electromechanical organ, rather than an electronic one, and uses banks of pipes that then are amplified, typically using a rotating amp. The B-3 allows the player to pile 2d and 3d harmonic tones on top of a note, creating wonderful layers.

The B-3 was very popular in small churches in the 30's and 40's, and in military chapels during WWII. Inevitably, its use then spread to popular gospel and blues and into the offspring of those genres, rock and R & B. It was used extensively by bands like Santana, Kansas, Led Zeppelin, and the Grateful Dead, and more recently by artists like Tori Amos.

My favorite use of the B-3 is by Booker T. Jones, of Booker T. & the M.G.'s. Go to itunes, right now, and buy "Time is Tight" by them. It's a groove.

Tyd, you rock. Literally. I really think you and your husband should play the Mighty B-3 for the 89 3-year-olds at Spencer's birthday party.

Tuesday, February 27, 2007


Weightier Matters

In contrast with my mostly-inaccurate history of Baylor, Craig Pankratz has embarked on a more worthy mission over at Weightier Matters. Specifically, he is outlining some facts about the Mormon church understandable to outsiders. I would recommend it to anyone who wonders about the LDS church and, like me, does not know much about their beliefs.

I do know this-- it infuriates me that they run into the intolerance and hostility that they do, as the Mitt Romney presidential campaign has brought forth. My broad group of brothers and sisters in faith have one thing in common; they believe in a God that is greater than them, and who created and oversees this world. Beyond that, there are many inflections of faith, and I have learned from many of them. Some are Christians, and those are more like me than some others, because Christ is at the center of my faith. That said, though, I don't know anyone, not one person, who has exactly the same set of beliefs that I do about Christ and a moral life, if I take into account the full complexity of my beliefs. Thus, I am not going to judge someone else's Christian faith as inferior or superior to mine because it varies from my own. If I were to do that, i would be standing alone, and I have been commanded to worship with others. I am not a relativist-- I am quite judgemental of some of the things I do. I hold myself to high standards (and often fail), and those standards are not "relative" to the situation; they are constant (even when my behavior is not). I will kneel and worship with Mormons, Lutherans, Southern Baptists, Pentacostals, and Catholics-- and if you don't want to worship with me, that's ok, too. What matters is that I do so, with the humility to share the grace of God with those around me.

When I read Craig's reflections on his faith, it is not a challenge to me or cause to challenge him. It is a chance to learn and grow, even when our disagreements on a particular point may continue. I greatly admire his bravery in making his faith known; I don't know another student (or faculty member) willing to do so to the same degree. I would also say that I have found my Mormon students and other Mormon friends particularly brave in their faith, and their lives more consistent with that faith than most of us are to the beliefs we espouse.


Fashion Night-- Still Famous! (Plus, in the comments section, an oddly complex soup recipe from Tyd)

I just noticed that fashion night at Baylor is a featured story over at JDJ seems to be, um, more interesting than most legal journals, given that the lead stories (other than fashion night) are "Attorneys & Crystal Meth," "Sex and Power in the Legal Profession," and "Transgendered Attorneys." Hey, now! Shouldn't they be covering the coke-addict stripper/copyright infringement story?


You go, BearMeat!

I notice that both BearMeat and Swanburg are right on top of the search for the coke-addicted hookers recently accused of terrible misdeeds. There are several compelling yet confusing aspects to this story:

1) The misdeeds they are accused of are neither prostitution nor narcotics (two charges that jump immediately to my prosecutorial mind when I hear the term "coke-addicted hookers"), but rather copyright infringement.

2) What kind of intellectual property would coke-addicted hookers appropriate? From what I can gather the addict-hooker crowd doesn't publish much.

3) Why is it that this mystery is being pursued by a Baylor sports blog? It seems the more natural investigator would be IPLawGuy. He knows a lot about this stuff (copyright infringement).

4) Could it be that the true perpetrator is ex-blogger Chris Frankenhooker? I wouldn't be surprised to find out he is involved somehow...

Monday, February 26, 2007


Don't worry-- It turns out Bradley Thomas is OK!

Sorry for my prior post reporting that Bradley Thomas was dead, based on the fact that his blog became increasingly lame and then totally inactive. It turns out I was mistaken.

This afternoon, I ran into Bradley and some of his friends in the parking lot. They seemed to be a little lost, and Bradley looked terrible. I assumed the ashen face and torn and out-of-date clothing, however, were merely the result of his keeping company with Mr. Swanburg in various places of ill or no repute.

It was the same old Bradley Thomas, though! When I struck up a conversation with him he mumbled incoherently and staggered about before laying his cold, sloppily bandaged hand on my face before I was able to escape. I'm just glad that everything is ok and that he is back to normal!


Baylor History, Part Twelve

Almost immediately upon his installation, President Brooks made some interesting choices. He required that faculty live in single-sex dormitories, provided scholarships to those prospective students with the letters “arg” in their last names, and began the tradition of forcibly re-baptising all incoming freshman in the Brazos, along with any student who misbehaved. Brooks took the mission of adult baptism quite literally, and in the course of four years baptized one student, Lesli Bargtarg, no less than fourteen times.

Despite these odd developments, there were many pioneers among the graduates of this era around the turn of the century, making their marks on Texas and beyond. Most significant, perhaps, was Simone DesChartreuse, a native of France who ended up at Baylor through a freak navigational accident which caused a French frigate bound for New York to veer wildly off course, steer up the mouth of the Brazos river, and run aground near Huntsville. There, the ship was commandeered by a group of prison escapees, who further guided the boat to Waco, where it again ran aground. The press surrounding the incident was very bad, and the State of Texas offered free tuition at Baylor to the surviving French passengers. The only one to take the State up on its offer was Simone DesChartreuse. She stayed in Waco, mastered both English and dentistry, and upon graduation pursued a Ph.D. in dentistry with Professor Floyd Wilhelm. Together, they developed modern techniques for bonding, replacing, coloring, cutting, whittling and bronzing teeth, many of which are still in use. DesChartreuse, however, worked alone in developing her most significant advance. Convinced that she could improve dental health by bombarding patient’s mouths with UV rays, DesChartreuse built self-contained units which would flood the body with such light. While the primary purpose of these experiments was a failure, she found that the patients in her experiments were left with even, safe, golden tans, and she quickly began to market her “tanning beds,” starting an industry which still thrives in Waco and it’s environs. By 1910, she was the richest woman in Texas, a status she retained throughout her life, especially after her subsequent invention of a “spray” which held hair in place.


Sunday, February 25, 2007


It appears we lost both Anna Nicole and Bradley Thomas this month...

And I'm really upset about Anna Nicole. As for Thomas, it appears he is no longer with us, given his blog has laid in a state of disrepair for weeks. Sadly, he was seemingly in a state of dementia near the end. His last post was titled "hilarious!" and contained nothing but a grainy video of his two children fighting halfheartedly on a couch in the small home he shares the kids and their mothers.

Which, I suppose, leads to a larger point-- that our media age doesn't allow death with dignity any more, whether it is a mega-celeb like Anna Nicole Smith or a... well, Thomas.


And the Osler Goes to...

I have to say, the Osler for best performance by a professor has to go to Jeremy Counseller for his winter commencement speech, which was everything a commencement speech should be. Second place goes to Prof. Bates, for his foosball accomplishments.

What other categories should I have?


Baylor History, Part Eleven

The new century at Baylor brought many new challenges. One great crisis was averted in 1910 when an extremist religious group attempted to take over the governing body of BU, the Board of Intenders. By Baylor’s original charter, the school was to be governed by a board consisting of 107 members of the First Baptist Church of Baylor County, or such lesser numbers as are members of that congregation at any given time. It was, of course, highly unorthodox for a major University to be governed entirely by the members of a fairly small rural church, and problems abounded. The large size of the group hindered consensus, and several meetings of the Board ended in an exchange of gunfire and the establishment of defensive positions around the church, a deadlock which most often resolved itself at suppertime as the militias got hungry. However, in late 1909, a new and charismatic member came into the Congregation of First Baptist Baylor, a Bostonian named Pemberton Lloyd Stewart IV. He espoused a radical brand of Unitarianism which emphasized getting along and not bothering with insignificant matters, while placing a lesser emphasis on either liturgy or Bible study, which he referred to as “Bibolatory.” Quickly, through a series of potluck suppers at his home, Stewart seduced the Baylorites with his theories, and by the dawning of 1910 the church officially allied with the Unitarian faith, purchased a series of stained-glass windows displaying “Heroes of Good Sportsmanship,” and began to shift the serving of wine from the Eucharist to the social hour and most other church functions including several involving youth.

Needless to say, the changes at the First Baptist Church of Baylor County augured troubling changes at Baylor University. The church congregation, sitting as the Board of Intenders, instituted several startling changes at the school, including the establishment of a new school of “Cognition and Cooperation,” the lifting of the bans on student drinking, dancing, fornication, and the worship of idols, and a new rule linking faculty pay to their “empathy rating” from students. Needless to say, bedlam followed. President Brooks was aware that rapid action was needed to save the institution from liberalization. He quickly swung into action, with the aid of law professor David Guinn.

Brooks’ plan was radical, to say the least. First, he identified seven dissidents from the Board of Intenders and brought them to Waco in the dark of night. Declaring that these seven were a quorum, he then had them approve a motion to reverse the new changes and to shift the way members were selected for the Board of Intenders. This latter change was perhaps a bit rushed, as it provided for a 36-member Board of Intenders which would be selected according to a somewhat bizarre formula: 12 of the members would be selected by the President of the University, 10 of the members would be named by the governors of the first 10 states (in alphabetical order), 5 would be chosen by Baylor’s official live bear mascots, and 5 were to be picked at random from those traveling on the public roads in and around Waco. Once implemented, this plan led to some very unusual results—for example, the live bear mascots often placed themselves on the Board, then demanded food and other gifts. Nevertheless, this plan did divest the wayward church in Baylor County from active control of the University, and opened the door to a more modern era in which Baylor was to be ruled by a bizarre inbred cabal designed to ratify almost anything the President of the University chose to do.


Saturday, February 24, 2007


Baylor History, Part Ten!

Because of the sad fate of her beloved father, Liz Baylor deeply resented the choice of the bear as Baylor’s mascot by the Board of Intenders in 1907, and more than once attempted to kill the live bears kept on campus. Her last attempt to do so was in 1911, when she tied up one such bear, loaded it onto a motor lorry which was then put onto a frigate in Lake Waco. Once in the middle of the lake, she pushed the bear off the back end of the boat to ensure its demise. Much to her surprise, the bear proved to be a strong swimmer, and eventually clamored aboard an abandoned rowboat, which it successfully piloted to shore by paddling with its large paws. Eventually, the bear caught up with Liz Baylor herself on the shore, leaving a long gash on her arm, which was very nearly severed, before the bear escaped into the woods. This episode, the only known instance of an American black bear piloting a leisure vessel, was enshrined for years as the genesis of Baylor’s old “Sailor Bear” mascot, which was popular from 1912 until 1943, when it was dropped due to the fact that a German U-Boat which terrorized trans-Atlantic shipping was learned to be called “Baylorsgebang- bruindasboot,” with a picture of the Baylor mascot stenciled on its side next to the Nazi swastika. A German propoganda photo of that juxtaposition appeared in the New York Afternoon Democrat in May, 1943, bringing many questions from the Yankee intelligensia about the connections between the Third Reich and Baylor University (and the entire Southwest Conference).

Once established in Waco, Baylor continued to grow in size and stature among learned academies. In this period, the school focused on a core curriculum of Latin, rhetoric, history, dentistry and fashion merchandising, with no electives outside of these areas being allowed. Significantly, each student had to take an equal number of classes in each discipline, resulting in a remarkably versatile group of graduates capable of giving a historical sermon in Latin while adorned with the finest fashions and whitest teeth in all of Texas. Employers took note, and Baylor graduates were in great demand.

Little did the students at that time, however, know of all that was to come-- the triumphs of the equestrian squad, the hosting of the NBA all-star game, and the marvel of Practice Court among the feats they could not imagine.


Friday, February 23, 2007


Baylor History, Part Nine

During the years around the turn of the century, Baylor’s identity was fluctuating in ways large and small. For example, in 1901, the Board of Intenders came close to making the school single-sex. Two competing factions emerged on the Board—one favoring a change to an all-male student body, the other favoring the exclusion of males to create a Women’s College. Due to the fact that no less than three members of the Board suffered from an odd neurological disorder which caused their right hand to shoot upward affirmingly at any suggestion, both motions passed, effectively banning the admission of both males and females. A brief debate ensued on whether it was feasible to continue the College with such an odd rule in place. While a significant minority of the Board wanted to seek out non-gendered students, ultimately both votes were rescinded.

Similar confusion reigned over the selection of a mascot for the college. From 1900 through 1901, the official mascot was “Pretentious Man,” a large-headed individual in a tuxedo, top hat and spats carrying a riding crop and Harvard diploma. He appeared to have an unpleasant sneer, and was roundly disliked. As their Senior gift to the college and community, the class of 1901 drowned him in the Brazos. As he was being put down, the mascot protested in his uniquely effeminate way: “My word! I do believe they intend to kill me! This is scandalous! Stop, unlettered scalliwags!”

The Autumn of 1901 saw the installation of a new mascot, known as the “Unlettered Scalliwag.” Played by an illiterate A & M graduate, the Unlettered Scalliwag was, in contrast to Pretentious Man, extremely popular. Dressed in a Baylor sweater and oversized diaper, he roamed campus handing out beer to faculty, students and small children alike. Always pleasant, he offered up a popular chant at football games, as he attempted to lead the crowd in spelling out “Baylor.” At times, the attempt went into hundreds of letters, often including “X,” “J,” “Z” and other Scrabble favorites. Sadly, he also met his end quickly when, in Spring, 1902, he was struck and killed by the first automobile to visit Waco, an Oldsmobile driven by President Brooks as he arrived in town to take his new post.

In the Fall of 1902, the symbol of the school became the “Baylor Oldsmobile,” which was simply the President’s car painted in the (then) school colors of Black, Gray and Mauve. This mascot disappeared during the infamous 1903 “Disaster Bowl” football game against the booze-soaked New Orleans School of College University [sic], and was replaced by “Mr. Ghost,” which was simply a random Baylor freshman dressed in a sheet with two holes cut out for his eyes. Mr. Ghost lasted for a relatively lengthy two years, before he perished in a dove-hunting accident. He is still remembered annually through Baylor's tradition of "White Out" at a basketball game, at which the spectators remember their mascot by wearing all white.

Subsequently, in 1905, Baylor adopted “Prudence Abstinence,” a Bible-quoting church-lady mascot. Perhaps the least popular of any mascot, ever, anyplace, she carried a King James Bible and a handgun, and often shot at students she felt were violating the moral code of the Baptist faith. Her tenure ended in 1906 when she was convicted of multiple murders and executed on the lawn of a freshman dormitory to the great Huzzahs of the student body. In turn, she was replaced by Darty, a large poisonous snake. Darty quickly matched the death toll achieved by Prudence Abstinence, and in turn was replaced with "Pluggy the Clown," an overweight middle aged man in a clown suit known for his catch-phrase, "Hey, kid, get in the van." Pluggy proved to be a tort liability disaster for the school, and the Board of Intenders finally acted to normalize the situation, passing a motion naming the bear as the Baylor mascot and allocating funds to provide the campus with at least two live bear mascots, to be named in a manner most ingratiating to the President of the University at the time the bear was obtained.



It's Haiku Friday, Baby! I feel good!

It's a big one this week, folks. Huge. So get your haiku on, baby. Here are some possible topics. You can mix and match, or come up with your own:

1) What Bates eats
2) Things you aren't allowed to do on Swiss trains
3) The beauty of Spring
4) Britney
5) Tyd's new kitchen
6) Reasons not to eat hair
7) Obama v. Clinton
8) The Slob Army
9) That weird judge in the Anna Nicole Smith case
10) NBA All-Star shenanigans

Here is mine:

Britney, don't do that,
Not here on this Swiss train car;
No, I won't eat hair!

Your turn...


Thursday, February 22, 2007


Baylor History, Part Eight

Once the commitment to move to Waco was made, there was great discontent among the student body, who to a man and woman were happy in the familiar surroundings of Baylor County. A preparatory trip to Waco was not reassuring, as the traveling party (Tiffany Baylor, student body president Wade Lloyd Wade and an Indian guide) found the University-Parks area to be particularly desolate. Not only was the land for the college infested with both fire ants and Africanized killer bees, but it was rife with hostile Indians from the Feifth Tribe. The Feifths were a particularly ferocious group, often armed not only with sword and shield, but with fragile eggshells filled with fire ants or bees and then hurled at an intruder.

As the small party camped on the banks of the Brazos, the Feifths attacked, striking at night from their village near present-day Fifth (nee: Feifth) Street and reaching the tent of Tiffany Baylor first. She fought valiantly but succumbed to the marauders, eventually being dragged back to their village where she lived out her life. Hearing the commotion, Wade Lloyd Wade fled. He ran headlong through the mesquite forest, cut, bruised and battered. He lost track of the weather, fell in a dry ravine, and lay there assuming death was to arrive on quiet feet at any moment. It was not death who found him, though. Rather, it was Waco pioneer Rapheon Sanger Memorial, a woodsman and nephew to Dwight Sanger Waco, the land speculator who had founded the town in much the same manner that Judge Baylor had founded his.

Memorial heard what he thought to be the sounds of a wounded animal in the ravine and responded on horseback. He found the young and wounded Wade instead, gasping on the gravel soil. Wade was delirious in the sun, and was trying to ask for “Baylor Wine.” Memorial took this to be a reference to the “Baylor Line,” a tracker’s trail from Fort Worth to Baylor County. Immediately, Memorial warmed to the stranger, with his reference to his familiar haunts, as Memorial was born near Baylor County himself and had ridden the Baylor Line many times. Memorial hoisted Wade onto his horse, brought him home, and fed and refreshed him. Later, Wade was able to return to Baylor and lie about the circumstances sufficiently enough that the planned move was completed. This account of the tale is drawn from the plaque which formerly stood in Memorial Hall on the Baylor campus.



So that's what happened to those Foxtrot guys...

Hey! Someone sign those guys up for the Slob Army! Unlike the regular army, you won't be sent to Iraq, according to CNN. Thank you Pearls to Swine and IPLawGuy for the update.


The Slob Army

No one loves a good typo better than I do, and I saw one of my favorites yesterday. DFW airport is festooned with televisions showing CNN around the clock; mostly it is Anna Nicole Smith these days. However, they broke into the crucial Anna Nicole updates to briefly report that Britain is pulling troops out of Iraq.

I couldn't hear the TV because of the airport noise, so I was reading the transcription that scrolls over the screen. A reporter was lamenting the loss of our coalition partners, saying (according to the transcript): "Now the British are leaving. The Italians have already left, the Koreans are on their way out, and even the slobs have pulled out of Iraq."

That's bad! If we, the fattest people on earth, can't keep the slobs in our coalition, what hope is there? Even scarier is the fact that the slobs apparently have an army. Where will they send their troops now that they are free of Iraq? (I mean, after the stop at DQ).

I suppose the guy could have been saying "Slavs," and they just got it wrong on the transcript, but I am really enamored of the idea of the slob army pulling out of Iraq, probably on a fleet of motorized scooters.

Wednesday, February 21, 2007


Today is my 400th Birthday!

It's true. I'm now 400 years old. I'm celebrating here at DFW's "B" terminal, which it appears stands for "Bus." Seriously, they turned it over to American Eagle, and already it looks dumpy. Any minute, I expect a Roy Rogers restaurant to open in the middle of the concourse.

The gold standard for bus-station-like air terminals, of course, is the old People Express terminal in Newark. It was quite an airline-- you paid for your ticket when you were actually on the plane, and the flight attendants sold fried chicken by the piece. It was $19 from Norfolk to Newark when I was in college, plus extra if you wanted chicken. Their flights, with no assigned seating, featured a mad dash into the plane and little fights for the good seats. Does anyone else remember that airline?


One more thing about Claiborne...

One of the things that really struck me in the Claiborne argument yesterday was that Michael Dreeben, towards the end of the argument, conceded that the government was not arguing that out-of-guideline sentences are presumptively unreasonable. What was surprising about this, of course, is that this appears, on the surface at least, to be a concession of the second issue presented in that case.

Given that Dreeben still argued for the decision by the 8th Circuit to be affirmed, the necessary implication is that he did not see the 8th Circuit’s standard (extraordinary facts are necessary to justify a extraordinary departure) as a presumption. This went largely unchallenged in the briefs, and was only raised during argument through this subtle but telling concession.

Unfortunately, I think this is a bit of rhetorical trickery.

Originally, I had addressed this issue in a brief this way: In the decision below, the Eighth Circuit employed a presumption that below-guideline sentences are unreasonable, with a sliding scale to measure the evidence needed to rebut that presumption: "Sentences varying from the guideline range… are reasonable so long as the judge offers appropriate justification under the factors specified in 18 U.S.C. § 3553(a). How compelling that justification must be is proportional to the extent of the difference between the advisory range and the sentence imposed." 439 F. 3d at 481, quoting United States v. Johnson, 427 F. 3d 423, 426-427 (7th Cir. 2005).

This standard goes beyond simply requiring a statement of reasons supporting an out-of-guideline sentence. By directly calibrating the amount of evidence a sentencing judge must employ in order to justify a variance, the Eighth Circuit has created a presumption with well-defined standards as to how that presumption may be rebutted, culminating in their requirement that “An extraordinary reduction must be supported by extraordinary circumstances.” 439 F. 3d at 841. This use of a sliding scale for rebuttal eliminates any doubt that a presumption is at work. Notably, the presumption here must be directly rebutted by the sentencing judge, not by a party, making it even more clearly a refutation of the advisory nature of the post-Booker guidelines.


Baylor History, Part Seven

Much has been written by others of the move to Waco from Baylor County in 1890, most compellingly by Wade Lloyd Wade in his 1912 memoir Get the Hell Out! The Wade Lloyd Wade Story. Current Baylor students may wonder what their own experience of college might have been like had it taken place at the old home in Baylor County. That site, of course, is in a part of the state where the sky appears larger, and which well into the 1950’s was largely an unfenced and wild land where buffalo, key deer, largemouth bass and wildebeests migrated freely in enormous herds. To have been a young man or woman in such a place would no doubt be a lesson in perspective and beauty as only the forces of God through nature can teach.

But, the University did move. The motivation for the move is lost in the West Texas sands, it appears. One theory holds that the move was motivated by a land speculator’s fraudulent claims: Specifically, that a man named Eugene Parks set out a dirt path near the Brazos and a large tract of land he had bought for pennies, called it “University-Parks Drive,” and sought to entice either a prison or University to the area. He personally appealed to an elderly Eric Tech, the founder of Texas Tech University, which sat in desolate Lubbock, a town which was attacked (and conquered) with regularity not only by the Comanche, but the French. Tech turned him down, as even then he was plotting to sell the school to the State of Texas at an egregiously inflated price. Huntsville, of course, won the prison. With a chunk of land to deal, Parks made a generous offer to Tiffany Baylor, who agreed to move the University and its 4,000 students to a town which barely existed but for a few Indian encampments and their “Red Man Museum” along the Chisholm Trail.


Tuesday, February 20, 2007


The long view...

After court this morning, I spent an hour or so visiting with William Sessions, who is one of IPLawGuy's partners at Holland & Knight. For those of you who don't know him, Judge Sessions is a Baylor Law grad who has served not only as a federal District Court Judge, but as United States Attorney and director of the FBI.

Like most of our grads, Judge Sessions has fond memories of Baylor-- but those memories include the same type of excruciating practice court experiences and generally high expectations that some students complain about so much today.

That juxtaposition, of an older grad for whom those memories are positives and some current students who view the experience as wholly negative, probably should not surprise me. Judge Sessions, of course, has had a long and very successful career; given the breadth of his public service it is more than fair to say that he not only has done well but done good. It was clear as I listened to him that this career didn't just follow after or occur despite his experience at Baylor, but in part came from those experiences. It made me proud to be a part of an institution that has such graduates.

It also reminded me of part of what we read in Aristotle's On Rhetoric for Oral Advocacy this week, that painful experiences are often remembered with pleasure. In talking to someone who had practice court before Powell, Underwood, Muldrow, and Dawson, I came to understand what those 2300 year old words meant.

Next up: I'm going over to meet up with Jon Nuechterlein and Stephanie Marcus for dinner. Jon is partner at Wilmer Hale who wrote one of the briefs in Rita and argued before the Supreme Court many times while a member of the Solicitor General's office. He was also my roommate in law school, which means I know lots of funny stories about him...


Claiborne, Rita, and snow on the ground.

The arguments in Rita and Claiborne, as I had hoped, were compelling, spirited and ultimately frustrating, as the Justices seemed to be defining nothing so much as the box they placed themselves in through the Booker remedy. By making the guidelines advisory but subject to a "reasonableness" standard on appellate review, Booker planted the seeds of its own destruction. As today's questioning drew out, the precedent built up by the Courts of Appeal over time may well recreate the very 6th Amendment dilemma that was presented by the mandatory guidelines. That is, if the 2d Circuit holds that 12 months in prison for a given crime is unreasonable, but 18 months is reasonable absent additional facts... how is that different than the mandatory guidelines, other than the body creating the limits?

Hmmm. Good question. One thing this illustrated is that a case like this is, as much as anything, a convergence of three groups who have separate conversations. The government side came up with their view of what was important, those of us on the defense side had a completely separate conversation, and the Court had a third thoroughly distinct conversation. The arguments this morning revealed that perhaps these three conversations had completely different topics. To the defense side, it was about the parsimony provision of 18 U.S.C. 3553; to the government, it was about proportionality as the basis for reasonableness; and for the Court, it was the role of the 6th Amendment in all of this as circuit court precedent builds up, brick by brick. This morning's argument was perhaps not so much a meeting of two adversaries before a tribunal so much as a meeting of three groups who had looked at different parts of the same elephant.

Also, Justice Breyer gave a fascinating defense to one of his motivations for favoring advisory guidelines over jury findings on sentencing issues: If we turn such things into jury questions, this will give even more discretion to prosecutors, who will control the process through what evidence they put before that jury, and what special issues they seek to have determined. While I have often worried about (and written about) the shift of discretion over the past 25 years from judges to prosecutors, for some reason this aspect of jury findings at sentencing had not been part of my thinking.

As always, a great debate creates more questions than answers.


Baylor History, Part Six

Baylor's original Mandatory Chapel building was a tiny wooden clapboard shed suitable to the very small student body, but this was lost in an unfortunate and mysterious fire in 1849, and again in 1850 & 1851. Thereafter, chapel was conducted outside, rain or shine, in a stone ampitheater built by work-study students.

The spiritual life of the school also benefited from the production in 1859 of the school’s first “Mini-Theology,” a pamphlet which briefly described the theological tenets which all students must accept. Initially, these included belief in the doctrine of “Guilty Transubstantiation,” which held that the bread and wine of Communion were literally converted to the body and bread of Christ when consecrated and consumed, and that Christians were simultaneously required to eat and drink said blood and flesh and condemned to Hell for doing so. Another tenet barred the drinking of colored liquids of any kind, which was consistent with regional Baptist practice at the time. This forbade the drinking of beer, whisky, wine and all spirits save for those which were utterly clear in color, such as vodka, gin and a special colorless tequila which was produced in Mexico expressly for Baylor students. While this doctrine was later refined, its early version contributed to the rapid growth of the University and the many offspring produced by these early students during their college years.

After a break during the Civil War, Baylor grew quickly. By the 1880’s the student body was nearly 4,000, with many living in tents fashioned from tree bark and surplus burlap captured from passing army mule trains headed West. It was during this period that the only United States President to attend Baylor, William Howard Taft, was in residence while studying Rhetoric and Dentistry. After two years, of course, he transferred to another upstart school, Yale, from which he graduated, but a stanchion still marks the spot where he camped out his freshman year, close to the former Baylor Bear Barn. Intriguingly, Baylor ever after enjoyed an interlinked destiny with Yale University, which provided the education of many of its future leaders—in fact, one president of Baylor (Prosser) was plucked directly from the undergraduate ranks at New Haven.

During this period, many students complained of the difficult workload, especially the dentistry requirements each semester, taught by the most ornery and offensive dentists in Texas. A note nailed to a "message board" (which was literally a board) by one Sirius R. Downer complained thus:

"If I ever hear someone tell me again how "in life there will be disrespectful people too" again, I am going to vomit. That has been shoved down my throat since day one and had me believing that every dentist in America was a total disrespectful jerk and that I was going to be in a dental office every day getting berated. You are all a bunch of jerky jerks, and everyone else I know feels exactly as I do, you can ask them, too. And I can't leave because I am in debt and the railroad does not come within miles."

Sadly, Sirius died in the Spanish-American war, as he stood alone on a hilltop complaining about the rations that the army was providing him.



Thank you, your honor...

Given that I am in DC doing the whole federal court thing, perhaps it is appropriate that last week's haiku winner is, in fact, a member of our federal judiciary. Though under a pseudonym, the following was submitted by the Honorable Jeffrey Manske:

Dannielynn's daddy?,
A Paternity Party!
R.S.V.P. Now!

Congratulations, Mr. Honorable Judge, Sir!

Monday, February 19, 2007


I'm Waiting Out a Flight Delay at DFW!

I'm on my way to Washington for the Supreme Court arguments in Claiborne and Rita tomorrow morning. I'm pretty excited-- it's a big deal to us sentencing geeks. Right now, though, I'm not moving at all, because my flight to DC is delayed. The reason is mysterious, though what they were saying over the public address system seemed to be related either to "tolls" or "trolls" and their affect on the inbound plane.

I'm not going to pretend to understand aviation. But, I am looking forward to a nice meal with IPLawGuy, IPLawWife, and IPLawBaby if and when I arrive.


Baylor History, Part Five

With Judge Baylor gone after the probable bear attack, the talents of the remaining members of his family became more pronounced as Baylor University continued to grow. The longest tenure (literally) of any of them belonged to Liz, who taught rhetoric until 1927. Though her faculties were greatly diminished and her teaching methods were largely reduced to prodding others to speak while striking them with a cane, she was a treasured link to Baylor’s proud beginning and history of tort suits by students.

Tiffany Baylor, now widowed, also proved a guiding force in Baylor’s early days. In addition to her important foundational work in establishing the department of Fashion Merchandising, she was very active in the founding of another Baylor tradition that continues to the current day, Mandatory Chapel. Beginning in 1847, Tiffany Baylor led chapel services on campus every Monday and Wednesday; students who failed to attend were taken to the edge of Baylor County and abandoned, generally dying of exposure in the vast desert region to the West. The chapel services normally featured a performance by a touring troupe that Mrs. Baylor was able to engage at a reasonable price.

Because these acts were retained sight unseen, there were very often terrible misunderstandings, including an unfortunate incident in 1857 when a group of Guatemalan “Evisceristas” escaping overland from Mexico were mistaken for the entertainment that day and thrust onto the stage abruptly. They did perform one song with voice and folk guitar, the title of which (roughly translated) was “Jesus, You Lift Me Up (Higher)!” However, several students were ignoring them or, worse, passing notes, laughing, and reading the school newspaper. The Guatemalans swept down from the stage and rudely grabbed up three young female students, whom they kidnapped to Sante Fe and eventually integrated into their gang. Another chapel disaster of that period was a presentation by one Jedediah Swanburg on the topic "This is How We Do It (Outrageous Party People)!" Deguarretype photos of his performance depict a striking departure from the social mores of the time.


Sunday, February 18, 2007


Baylor History, Part Four

Through the 1850’s, enrollment at Baylor rose dramatically, due in equal part to the expansion of the population within Texas and Judge Baylor’s creative efforts to enroll students from diverse jurisdictions. Most notable of his innovations was his creation of an advertisement for the school (grossly overstating its credentials) on a removable cardboard flap glued onto the front of every Sears, Roebuck & Co. mail-order catalogue in 1853. It was also possible that Judge Baylor and his children forcibly enrolled students after seizing them from passing wagon trains traveling to points West, as the main trail leading to Roswell, New Mexico and onward to Newport Beach, California passed close to the school and both of those destinations were then, as now, popular with families containing children and young adults.

Judge Baylor passed away in 1860, when the school that bore his name had grown to over 200 enrolled students and seven professors, the latter group including all five of his children, himself and his wife. The circumstances of his death are not well documented. News accounts reported that the night watchman at the school was overwhelmed by intruders bearing bludgeons and whisky and who seemed to be uncharacteristically clothed for a warm climate-- in fur coats. Much of Judge Baylor’s body was lost, and only a severely scratched right arm was found. Later analysts have theorized that the loss of his body was due to a wild animal attack, possibly by the very bears he had freed when he founded Baylor University.

Interestingly, this is consistent with the tragic deaths of other college founders at the hands of men and beasts later made the mascot of that university. Taylor Cincinnattus, founder of the University of Cincinnati, was mauled to death by a mixed group of bears and wild cats which had escaped from a private zoo; Ernest Vanderbilt was killed in a duel by Commodore Edmund Peary; Franklin LaCrosse, founder of the University of Wisconsin, suffered a fatal stroke when he was attacked by badgers; Thomas Jefferson died due to mistakes by his physician, Robert ("The Wahoo") Cavalier; and, perhaps most famously, University of Oklahoma founder Norman Oklahoma died while swimming in the Caribbean, when he was struck by an errant Dutch schooner. Even old Eric Tech, founder of Texas Tech University, suffered a similar fate. His home was invaded by hordes of fire ants seeking out his large collection of cheese. Tech was nearly fully consumed by the greedy red raiders, who also stripped the house of the cheese.

After his demise, the remaining arm of Judge Baylor was located and cast into a statue of Judge Baylor which still stands on the Baylor University campus. That statue depicts Baylor standing on the front porch of the school’s main building, gesturing into the distance where a Texas autumn sun fell gently into a bright and promising horizon.



A little Quaker humor

My Sunday School teacher (and Hero of Writing), Bob Darden, gets some pretty interesting publications. One of the more interesting of them is the "Quaker House Newsletter," which is put out by Quakers in Fayetteville, North Carolina. Bob gives them to me because of my interest in the Society of Friends.

My favorite part of the Newsletter is the back page, which contains the "Quaker Chuckles" column. While the jokes usually are real groaners, there are a few gems hidden amidst the muck. For example, here are a few good ones:

Joke One: A particular professor was known to have a sour disposition, and one day he barked at his class, "If there are any utter ignoramuses here, please stand up!" After a long silence, one friend in gray slowly stood up. "I see," said the professor, "so you admit to being a total ignoramus, then?" "Um, not exactly, Friend," replied the boy, "but I do hate to see thee standing up there by thyself."

Joke Two: Friend Jones sat down to his breakfast with the day's newspaper. He was shocked when he turned to the obituaries page, to find an announcement of his own demise. He immediately pulled out his cell phone and called the clerk of his Friend's Meeting. "Has thee seen the announcement of my death in the newspaper?" he asked the clerk. "Errr, yes," responded the clerk. Then after an uncomfortable pause he added, "... Um, where exactly is thee calling from?"

So, do you know a joke?

Saturday, February 17, 2007


U.S. News rankings and innovation

In about a month and a half, the new U.S. News rankings of law schools will come out. I wish they rewarded innovation in teaching and scholarship, but (as I have written on the Law School Innovation Blog) I fear that they don't.


Baylor History, Part Three

Formally, the school began in January of 1845, housed in the former Bear barn, with the only student being Gideon, for whom Tiffany had designed a special pant to obscure the loss of his left foot to the marauding bears. At that time, of course, rather than wearing conjoined “pants” as men do now, people made or purchased a “pant,” which covered just one leg. Normally, as one might imagine, they were worn two at a time for near-complete coverage. Tiffany Baylor was a master of the home manufacture of the pant, and she later offered her creations via mail order, an enterprise which provided a significant income and also led to Baylor’s groundbreaking development of an academic program in fashion merchandising, which continues to flourish in the present day.

At the time of the arrival of the first group of twelve “outside” students on August the 29th of 1845, the new University had three faculty members: Judge Baylor teaching Rhetoric, Latin and History, Gideon teaching Dentistry, and Tiffany offering instruction in Fashion Merchandising. The re-outfitting of the former barn was quite impressive. One of the incoming students, Langston O’Dell of Erie, Pennsylvania, wrote a letter home insisting that “the facilities here are quite remarkable given the location of the school. The main building is built of wood and fabric, with a coal furnace at each end, and spittoons generously placed, natch. You would quite admire the construction.” The bears, displaced from the barn, had been returned to the wild but for reasons unknown did not wander far from the campus. In fact, in 1847, several of these same bears joined cause with a band of Comanche Indians in raiding their former home, leaving with two students and the school’s full store of berries, nuts and cheese.

Despite reports to the contrary in the habitually incorrect Bear Meat blog, current Baylor President John Mark Lilly was not a member of this initial group of students, but rather matriculated the school as a freshman in 1983, a mere two decades ago.

The first group of students was a varied lot joined in but one respect: It appears that each had compelled in their parents a desire for great separation between progenitor and offspring, and an acceptance by the parents that it would be fine with them if their child was subjected to a harsh environment which could include whippings, random grade adjustments and the constant threat of attack by feral bears. Some, like O’Dell, seemed merely feckless, while others, such as Tina Trowbridge of Baltimore, quickly demonstrated tendencies which were challenging and at times straightforwardly felonious. Trowbridge, in fact, was a known firestarter. Though she was never caught, it is suspected that she played an active role in the fires which destroyed the campus in 1846, 1847, 1850, 1852, 1866, and 1898 (after the school’s move to its current location). She was significant for another enduring tradition, however: Trowbridge, an attractive, thin, petite blonde, possessed both a severe eating disorder and a high, clear alto singing voice. She was able to combine both when she organized Baylor’s first “Sing” event in 1848 with fellow students Patsy Noggle and Faia Oulufu. That first “Sing” offered just two performances: Trowbridge, Noggle and Oulufu in a scripted piece entitled, “Run! Bears!” and a short, apparently unscripted number by Galwain and Liz Baylor with friend Rehoboth Ur Davidson on the theme of “Molar Removal.”


Friday, February 16, 2007


Baylor History, Part Two

Two years after their arrival in Texas, Judge Baylor had found success. The land surrounding his cabin contained a surprising number of black bears, which Baylor managed to domesticate and successfully breed in a barn of his own design on the bank of the Pecos river. At this time, the oil and gas industry was becoming established by Jean-Paul Beaumont and Arthur James Port along Texas’ Gulf Coast, and their machinery required frequent bear-grease lubrication. Baylor’s bear farm was the sole source of the necessary bear grease, and Baylor began shipping all he could produce down the Pecos River to its mouth near Beaumont.

The bear-grease business made Baylor wealthy, but his industry was a hard one. Bears are not animals which normally form herds, and in their natural state, each bear can require up to 100 square miles to itself. The bears confined to Baylor’s barns and yards plotted insurrection, and in April of 1844 struck for freedom, an event now celebrated annually at Baylor through its great tradition of “Diadalosa,” or “Day of the Bear.” Though the present-day celebration consists mainly of ping-pong and pie-eating contests, the inspiration for Diadalosa was considerably more bloody. The bears managed to break into Baylor’s storage shed and overturned 17 two-barrel cans of red paint. This apparently was a diversionary effort, as when Judge Baylor and his sons Gideon and Ezekial rushed to the scene, they were attacked from their rear flank by twelve to fifteen bears armed with sharpened sticks, a truncheon and at least one operational bolt-action firearm. In the ensuing melee, Judge Baylor lost an ear and suffered a gunshot wound, Gideon’s left foot was bitten off, and Ezekial suffered a great number of injuries, which have been variously reported as hives, shortness of breath, sleeplessness, headaches, incontinence, muscle soreness, swelling of the lips, stroke, and even death. Needless to say, this event imposed great hardship on the continuation of Judge Baylor’s continued operation of the bear ranch. Notably, a description of the attack by Liz Baylor was later excerpted in Reader’s Digest’s “Drama in Real Life” series.

Diadalosa’s negative effect on the bear-grease business was offset by the very positive effect it had on higher education in the Republic of Texas. In search of some way to continue to operate his ranch, Baylor sought to bring students into his University from outside of his immediate family. He did so by placing an advertisement in the popular Philadelphia-based publication “Baptist Church Companion and Gazetteer,” in the winter of 1845.

The text of that first advertisement can be found preserved in a glass case at Baylor’s Bill and Vera Daniel Historical Village, and reads as follows:

“To educate and uplift students and mankind—
Baylore [sic] University now open!
Sunshine is promised to all students, and
Books fill our library for reading. Send $12 to
Tiffany Baylor, students to arrive August 29, 1845.
Baptist teaching. Offering classwork and hornbooks.
Rhetoric, Latin, History, Dentistry, and Fash. Merch., et cie.”



Haiku Friday, I love you!

Could we maybe get a winner who is not anonymous this week? Here are some suggested topics:

1) The Book of Lamentations
2) Spring Training
3) Funny Nicknames
D) Bates on skiis
5) What would Gordon eat?
6) The worst florist in Switzerland
7) Health care policy
8) My pet
9) My gift to Chicago
10) Practice Court and the soul

Here is my entry for the week:

Rocksprings debacle
A town has sprung back to life
The blood-red tulip.


Thursday, February 15, 2007


Baylor History, Part One

Over the past few weeks, I have become aware that many Baylor students have only a vague awareness of Baylor's history. Over the next weeks, in one post per day, I shall try to rectify that situation with the help of an elderly friend. We begin our history with the moving story of the founder of Baylor, Judge Baylor:

In the year 1845, Texas was a remarkable and wild place. In January of that year, the month of Baylor’s founding, Texas existed as an independent Republic seized from Mexico by renegade Southerners and Europeans who were ornery, driven and fiercely independent. One symptom of these qualities was that very few towns were well populated; Rather, some newcomer would take up a plot of land, name it for himself or the town he came from, set down his family in a cabin in a prime spot, and wait for others to follow. The problem, of course, was that Texas was all leaders and no followers, and the next family to come along would keep moving past the already established “towns” and simply set up their own farther along. As a result, by 1845, Texas was comprised of 798 recognized settlements, with an average population of six per town. In that year, Dallas had four residents, Fort Worth seven (all members of the Worth family, who had built a “fort” of rocks and brush), San Antonio (then still known as “Sam Antonio,” after its founder) sixteen, Waco four, and Houston one (that one being Sam Houston).

Predictably, many of these town founders also opened “colleges,” with the student body limited to the children of the founding father. In Liberty, the County Seat of Liberty County, Dwight Liberty founded Liberty College, which much later was seized by fellow Baptist Jerry Falwell and moved to Virginia. In Fort Worth, Milgrane Worth opened Worth College of Dentistry, which resulted in his five children becoming the first dentists in Texas. Eric Tech of Lubbock (named after his hometown in Tennessee) founded Tech University, which later became Texas Tech University after it was taken over by the state in the wake of the Rubella epidemic which wiped out the entire campus population in 1934.

Into this mix came Judge Benjamin Franklin Baylor, who rode in from Georgia with his wife, Tiffany, and their five children in 1843. Contrary to his own account, “Judge” was Baylor’s given first name, and he had neither legal training nor had he held any judicial position. He settled in the middle of what is now Baylor County, and called the “town,” which consisted of his lonely cabin, “Baylor.” His children, (Gideon, Galwain, Ezekial, Mordecai and Liz) all survived the long trip from Northern Georgia unscathed. At the time of their arrival, the children ranged in age from twelve to seventeen and were a fierce and feisty lot. Gideon was the oldest, and at seventeen was already larger than his father. He had been a promising athlete (in both football and dueling) back in Georgia, and sorely regretted the move to Texas. Despite this wellspring of resentment, it was Gideon who was to be the first student of Baylor University.




Suddenly, I am overtaken with auto desire. Not that there is anything wrong with my present car-- it's a BMW 530i in great shape. It's just that... well, there's something else I really like. It's the Mazda3. You may find this odd, but I just think it looks like a great car.

I go through this periodically. I'm not sure why. Perhaps in part it was spurred by IPLawGuy's search for a giant 4-door convertible. Let me know if you have any suggestions, and bonus points if you can identify the car pictured above.

Wednesday, February 14, 2007


Go "Bobcats!"

Last night as I drove into Waco, I tuned in the Baylor baseball game. Listening in, I was surprised to hear that they were playing a school called "Texas State." While I thought I was familiar with the schools around here, "Texas State" was a new one, and one would think that name would have been taken long ago.

Fortunately, my friend and advisor on all things Texan, Gordon Davenport, was able to explain it all to me via cell phone. Texas State, located in Brian's College Station, was until very recently known as "Texas A & M." According to Gordon, this Texas A & M was so called because it was founded by a married couple named Andy and Marge. Over time, the school grew to nearly 3,000 students and developed a slavish devotion to their sports teams, the "Fightin' Angries."

Gordon's understanding is that in the past year, the school formerly known as Texas A & M (still owned by the children of the founders) fell on hard times and scandal, leading to the departure of the president, Bill Gates. To get a fresh start, they renamed the school "Texas State," and made the teams the "Bobcats." They also got rid of their old mascot, Sarge, in favor of a new one.

Thank you, Gordon! And shouldn't Bear Meat be on top of a story like this?


Tuesday, February 13, 2007


Furor in Rocksprings

One great thing about being a student of criminal law is that it is kind of like studying theology-- your subject is all around you.

The talk in Del Rio went really well, and I got to spend some time with Fifth Circuit blogger and former student Brad Bogan. Henry Bemporad, the incoming federal defender, is only the most recent co-speaker this week to upstage me, but it is always great to follow him. If you wonder why I do stuff like go to Alpine and Del Rio and give CLE's to the federal bar, there are good reasons (and no, it's not money). First, it gets me out to see Texas, which is important because these areas are where some of my students are coming from, and going to. Second, it allows me to build relationships with practitioners who sometimes do stuff like hire law graduates. Third, it keeps me current on issues closely related to what I teach. Fourth, I run into lots of intriguing stuff.

For example, on the way back from Del Rio, I passed through Rocksprings, a little town of about 1200 people which is both the seat of Edwards County and the Angora Goat Capital of Texas. I stopped to get a soda and a local paper, the "Texas Mohair Weekly." The first thing I noticed about the Mohair Weekly was that it has operated since 1893, and the second was that the high school district-title-winning girls' basketball team is called the "Lady Angoras." (I love it when people stick with a theme consistently). The third was that the lead article was headlined "Free Gilmer is Our Motto!"

Looking around town, I saw several other "Free Gilmer" references-- in store windows, by the side of the road, etc. "Gilmer" is Gilmer Hernandez, the local deputy sheriff. He was convicted (in the courtroom in which I had just given my presentation) of shooting an undocumented alien. From what I can gather, he had stopped an SUV full of people for running a light. When he stepped up to the vehicle it sped off. As it drove off, he fired at it, hitting one of the occupants.

The conviction of Deputy Hernandez was obviously a huge issue in the town, and tapped into a vein of emotion which runs very deeply in this part of the country. I had driven through Rocksprings once before, and it had seemed almost a ghost town. Apparently, I misjudged it.

Monday, February 12, 2007


Uvalde, We Can!

So I wheeled into Uvalde about 7, found a room, and headed over to Jack's Steaks for dinner. Here was the conversation I had when the waiter came over:

Waiter: You from around here?
Me: Nah, just driving through.
Waiter: Where ya' goin'?
Me: I'm headed down to Del Rio. I have business there tomorrow.
Waiter: You wanna steak?

Now this may seem unremarkable, but it was inconceivable as a boy growing up in Grosse Pointe, Michigan that I would ever say "I'm headed down to Del Rio. I have business there." Just as conceivable might be "I'm from planet Zarkon 4, and I plan on taking your planet's supply of larkspur." But, here I am, saying stuff like that.

Which I love. I love the huge sunset, the faint outline of hills, the open space, the bright green of crops in February (February!), and the bazillion stars. I love saying that I'm headin' to Del Rio for some business. I love the fact that this statement is met only with an offer to sell me steak.

Don't think that I'm under the sad delusion that I somehow "fit in" here in Uvalde. The joy isn't in faking something-- the joy comes from the part that is true, which is a startling new element of my life. I am going to Del Rio to do some business. That's part of my life right now.

I have felt that feeling before-- of having a role that is understood in a given place, even if I don't fit in there. For example, I really reveled in the role of Yale student visiting New York, and William & Mary student visiting DC, or prosecutor at a crime scene. People didn't think I was a New Yorker or Washingtonian or investigator, but these were roles people in those places could understand, that they could accept, and I only had to be what I truly was to step in and walk through and look around.

The most sublime joys (love, the birth of children, saying you have business in Del Rio) are, I suppose, the hardest to describe. They are emotions, not logical conclusions, and were they to be fully described, they would probably disappear like mists.


I'm on my way to Del Rio!

It's true. Tomorrow I'll teach sentencing and oral advocacy, and then hit the road for Del Rio. On Tuesday, Henry Bemporad (recently named the new Federal Defender for the Western Dist. of Texas) and I will give a presentation to the criminal bar down there. As you might expect, they handle a lot of immigration cases.

I love a drive like that. My plan is to make it as far as Uvalde tomorrow night. I usually enjoy towns that size, with a bit of isolation. A week from Monday I'll be going to DC for the Claiborne arguments at the Supreme Court, but the fact is that Uvalde intrigues me much more than DC does.

So, here is question some of you may be able to answer. In going through Austin, is it better to go top or bottom on I-35 when it does that bizarre vertical split thing?


Sunday, February 11, 2007


And now, on the class blog...

The entries are coming in fast and furious on the blog for my oral advocacy class. You can check it out here. So far, I'm really impressed with what people have to say.


Technical Problems...

The winner of the haiku contest was disqualified for having six syllables in the last line... sigh. These rules...

Saturday, February 10, 2007


It's "Feral Center," You Goofballs!

I found this pair of columns over at Bear Meat quite enlightening, but I must object to their continued reference to Baylor's basketball arena, the Feral Center, as the "Will Ferrell Center."

I suppose that their misguided "Will Ferrell" joke is for humorous purposes. Humor is all fine and good, until someone gets hurt. In this case, the someone who gets hurt is an important part of our proud Baylor Legacy, the grand story of our traditions that we are so lucky to stand upon.

The name "Feral Center" derives from a particularly challenging period of Baylor History. It was 1920, and President Samuel Palmer Brooks was putting the finishing touches on his plan for the future of the school, a plan that became his amazing "Vision 1930." The University, however, was facing a terrible crisis: The campus had been invaded by twin plagues, as massive numbers of grackles established residence on campus at the same time billions of crickets descended like a black cloud of death, covering every footpath and building.

In the face of these plagues, students began turning away from school, and Baylor was on the verge of financial collapse. Brooks' first plan was to introduce hundreds of live bears to the campus, in the hopes they would scare the grackles and crickets. Sadly, they instead destroyed the Penland Hall cafeteria, set up an encampment near the center of campus, and somehow developed the ability to make and use firearms. Rather than correcting the flight of the student body, the problem was substantially worsened as student fatalities due to bear attacks (both conventional and sniper) skyrocketed. A similar plan in which the Pillsbury Doughboy was retained to wander campus and scare the grackles backfired when the Doughboy focused his efforts almost exclusively on ham-handed efforts to entice Baylor's female students into having drinks with him up in his room.

Desperate, Brooks set up a committee of five faculty members, led by Denise ("Wa-Wa") Walters of the Latin Department. Joined by four faculty members from Baylor's philosophy department and law school, Walters quickly developed a plan of attack. As the philosophers had confirmed, squirrels were known to eat grackles. Were large numbers of squirrels to be introduced into the campus ecosystem, the grackles would become food. This, in turn, would drive the grackles to begin eating the crickets, and everyone knows that crickets eat squirrels. Thus, the philosophers and lawyers concluded, the problem would be solved with all of the nuisance animals consuming one another until their populations disappeared. Contrary views expressed in the local paper by experts in the biological sciences were ignored.

To their dismay, the committee found it impossible to locate a large number of squirrels for purchase, due to the effects of World War I. Instead, they proposed erecting an enormous shrine to squirrels, in the hope that squirrels from other areas would then move to Waco. This, my friends, was to be the Feral Center. Money was immediately appropriated, and construction commenced.

Even the most casual observer of things Baylor knows the rest of the story-- Governor Bill Daniel arrived from Liberty County on a white stallion, and individually shot each of the billions of crickets and grackles with a .38 revolver, pushing the tons of carcasses into the Brazos with an enormous cardboard check. Thus relieved of its original purpose of attracting feral animals, the Feral Center was converted into a home for the playing of basketball, and remains so even today.



Another New Blog...

As some of you may remember, I set up the bi-annual conference for Religiously-Affiliated Law Schools in 2006, which was held here at Baylor. The RALS is a wonderful and amorphous group; we don't really have a formal membership, and traditionally we just have had the conference every two years. Those conferences, though, have been fabulous. Catholics, Protestants, and Jews come together and are asked to discuss areas of common interest, the most common being how the religious identity of a law school affects what we do. It's an important question, and one we still don't examine enough.

So, to help us to have a conversation between conferences, I set up a blog for RALS. You can find it here.


Thursday, February 08, 2007


It's that magical day-- Haiku Friday!

It’s been quite a week. On the positive side, though it is hard teaching four classes this quarter, they seemed to get off to a good start; following Hulitt Gloer in Oral Advocacy was a particularly wonderful and humbling experience. On the down side, my new Baylor Law sippy cup apparently has a design flaw that allows some coffee to spill it out if I carry it around upside down.

But, finally, it is Haiku Friday—a time to kick back, relax, and communicate in a highly abbreviated and efficient form. With efficiency so often comes elegance, as the refinement of words whittles broad thoughts to a single reed. In that spirit, I offer this week’s haiku.

A day shall yet come
In the time after all time,
When Bates cuts his hair.

Now it is your turn. The last two weeks have been won by anonymous entries (good job, “Fat Kenny!”), but if a named individual wins this week, they may win a free right-side-up Baylor Law Jumbo Mug.



Dorothea Lange and Tragedy Trails

On the first day of PR, I included among the art we viewed a wonderful photograph by Dorothea Lange, entitled "Damaged Child, Elm Grove OK." It shows a girl in the 1936 dust bowl of Oklahoma, probably living within a world of despair as food and money ran out. Lange's photograph captures the dignity and sadness of that child, and always makes my heart heavy:

When I discussed this photograph in class on Tuesday, I mentioned that the image of the girl was similar to pictures of models on parade in Bryant Park in New York this week, as "Fashion Week" continues:

I could have put any number of photos from Fashion Week up to make my point-- the ideal of beauty today somehow seems to replicate the aesthetic features of a starving child in the Great Depression. Most obviously in both places, the effects of starvation, whether chosen or not, seem clear. And somehow we are surprised at eating disorders? But what else-- the unsmiling mouth, the sad eyes, the distant affect...

When did tragedy become beauty?


Wednesday, February 07, 2007


The faculty pretty much like the mugs...

We had another faculty meeting today. Mostly, we talked about the new mugs. Here, you can see some of the hostile reactions Bates (at far right) got when he suggested a 2-credit class in foosball.

Can you identify any of the other faculty in the photo? It's pretty obvious, I guess, that the one with the light saber is Prof. Wren, but what about the others?



The 7 Habits of Highly Confused Joggers

I was in a meeting today over in Pat Neff Hall, which is where the Baylor Administration holds meetings that involve powerpoint, people in ties, and hearty chuckles. I have to say, it was an extremely well-run meeting, very efficient, with excellent presentations. I was very impressed with almost everything about it. But there was one thing...

My problem was the poster on the wall across from me. There were 7 posters up, with different sayings, like "Think Win-Win." At first I thought that somehow this otherwise beautiful room had been decorated via a tipsy visitor to the now-defunct "Successories" store, but then it hit me. I was surrounded by the 7 Habits of Highly Effective People, writ large in color posters.

The one directly across from me read "Sharpen The Saw." It had a picture of a guy running perilously close to the edge of a desert mesa, an odd route for the kind of casual jog he seemed to have going. Beneath the picture, it said "Take care of your most important asset: You!"

I've been thinking about that all day. While I suppose one should take care of himself, and that there is much to be said for balance in life, I'm not sure running near sheer cliffs in windy areas is accomplishing any of that. No doubt, there was a deeper meaning to take from all this, but I was kind of obsessed with the guy in the picture. What a moron! He's out there in the desert, alone, no water, and he's two feet away from certain death while prancing over uneven ground.

So I ask you: What SHOULD the caption have been?


Tuesday, February 06, 2007


Now THAT'S a cup of coffee!

It's true what Swanburg says-- the new coffee mugs approved for classroom use are ferociously large. Seen above is one such mug, in proper perspective. Pictured in front of the mug are Swanburg and his date, as Chicago lounges nearby. In the background is the HazMat team required by state law to accompany beverages of this size.



Stop me before I cross-post again!

Now that I'm overblogging, I might as well cross-post the blog-overs. Hey, it's all bloggable, in the end. Here's my latest post at Law School Innovation.


Monday, February 05, 2007


The First Day (Again)

It was the first day of classes at Baylor Law, and whhheeeewww, am I whipped. In the morning I have back-to-back classes, sentencing and then oral advocacy.

In Sentencing, there was a real first for me-- all of the students, one way or another, I feel like I know. There are a lot of personalities in there, and it's a great group for the topic.

Oral Advocacy was the usual mayhem. After the introductions, Hulitt Gloer and I addressed the same subject (The Good Samaritan) in two different forms-- the sermon and the closing argument. I gotta say, man, I got my butt whipped. That Hulitt Gloer knows what he is doing.

Which is usually how that class starts. The first year, our third co-conspirator, Randall O'Brien, went first. When he was done, halfway through the first class, he got a standing ovation. That's a tough act to follow, people.


Sunday, February 04, 2007


My prayer for the graduates

I had the honor of giving the invocation for commencement yesterday. This was the prayer I offered:

"Lord, you created us not as lonely souls,
but in society with one another--
Teachers and students,
Parents and children,
Leaders and followers.

This is a day of commencement; the commencement of change, as
The students are becoming teachers,
The children are becoming parents, and
The followers become the leaders.

With You as our Constant, who never changes,
but loves us, and guides us in our changes,
we give thanks
and commence these new beginnings with joy. Amen."

I didn't write the whole thing; my friend and mentor Randall O'Brien wrote the last four lines after I showed him the beginning.

One great thing about the commencement ceremony as a whole was that the commencement address by WJC embodied the Christian faith better than my prayer did, as he made an eloquent case for humility and selflessness in the face of a world which often demands the opposite.


Hey, Chris Fahrenthold-- Don't forget to write!

Another happy graduate yesterday was none other than Chris Fahrenthold, the man who really did change the culture of the law school for the better through blogging. Good writer, sure; but more importantly he was honest about things that too often went undiscussed, and opened up that discussion to a broader audience.

He helped me in my own work, and made it better. He also allowed me to read his works-in-progress, which I thoroughly enjoyed. While it may not be fair to say that he was the Beaker to my Dr. Bunson Honeydew, it may have been close to that. Only without the explosions. Well, except that one time, and that really was Bates' fault.

Oh, yeah-- at his wedding he sang something other than "Feelings."


Graduation, again.

This is Heather Davenport and Hugh ("Big Aristotle") Fuller. Fuller graduated last Spring, and wrote my all-time favorite short student piece, which was a reflection in Oral Advocacy class. He is working as a prosecutor in Tyler. Heather gave the wonderful student address this morning. I had the pleasure of teaching her in many of my classes, and working with her on a long paper. It's because of people like them... well, that graduation is so hard.

If you are a teacher, that's your life's work, after all.

Saturday, February 03, 2007


The Happiest Graduate

There were other competitors, but Florencia Rueda probably had the most noise from the audience at commencement. Her family had an impressive array of equipment-- air horns, cow bells, roman candles, etc.-- and used them at length.

And it was well deserved. I know that she helped me many times with my projects, sometimes even though she wasn't getting credit for it. Flo was a top student at Baylor, and is one of those who will go on to approach the law the way she did at Baylor-- with passion, vigor, intelligence, and a keen sense of justice. There is a problem out there that she will solve through the law, and that's the best any of us can do.


It's Me and Puckett!

Raymond Puckett is one of many people who graduated today whom I will truly miss. I hope that since Mr. Puckett's fiance is still in the student body, we will continue to see him.

For those of you who weren't there, two of the highlights of the graduation were Heather Davenport's student address (pictured below) and Jeremy Counseler's excellent graduation speech, which was probably the best I have heard since I have come to Baylor-- and that's staying something.


The best graduation ever

If you were there, you know it's true.

Friday, February 02, 2007


Haiku Friday, Version #234

Above is another photo from Lost Maples. And, yeah, that's Texas.

I would suggest that people write about either the beauty of nature or finals for Haiku friday-- but you are free to write about whatever you want. Just make it 5 syllables/7 syllables/5 syllables.

For this week I have explored testing from the other side, as the one who receives the papers:

Thanks, 4-5-4-5
For your test in smear'd pencil
It looks like bad runes.


Thursday, February 01, 2007


My nemesis...


Old Bradley Thomas sent me this via facebook, and I'm not sure what to think. It apparently was created using the same program that created the game "Pong." What is it a picture of? My initial thoughts:

1) Bates
2) A poorly-drawn heart
3) A character in "Tron"
4) His grade in my class

Thomas claims it is, in fact, an image of my evil nemesis, Pluto The Dog. Pluto and I don't get along. For one thing, it makes no sense that he is Mickey Mouse's pet, and then some OTHER dog, Goofus, is his friend. Why would a mouse have a pet dog? And if it is just part of some fantasy world, why not have a little consistency, people?

Then, of course, there is "The Incident" from Disneyworld, 1988. I was there with a friend who lived in Florida, and we were strolling through the park when I saw a large dog signing autographs for a throng of admiring children. "Ah!" I thought, "It is Mickey's stalwart friend, Goofus!" So I boldly strode over to the pup and shook his hand while saying "Mr. Goofus, I very much enjoy your work. You are a master of your oeuvre..." It was at this point that the stupid dog thrust out a gigantic name tag reading "Pluto" and then cuffed me on the head. As the children laughed, I knew that I had found that one demon-creature I must defeat.

It is my solemn vow that once I figure some stuff out with the sentencing guidelines and get my PR syllabus worked out, I shall... I SHALL seize this beast, this ancient serpent, and bind him and thow him into that bottomless pit where he shall deceive the nations no more.

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