Wednesday, April 30, 2008



It was that time of the year-- time for the semi-annual haircut. It looked like an animal had died when the poor woman was done. Rejecting Prof. Serr's suggestion that I go to the place he does for a haircut ("Beautiful Reflections"), I went to "Sportsclips," where (during my haircut) I got to see a tragic ESPN documentary about the Oklahoma State football coach losing his marbles. It was an odd experience.

Is there someplace that will buy a few pounds of human hair?


Angus McSwain-- Baylor Law Legend

Yesterday, the faculty and staff had a lunch for Dean Angus McSwain, who retired from teaching after a continuous run from 1949 through 2008-- a total of 59 years. He was dean of Baylor Law for nearly twenty years, and during that time continued to teach property to every student in the school. In more recent years, he was our jurisprudence professor. All told, he graded over 10,000 exams. Crikeys.

All those numbers, though, don't mean much to those who know Angus McSwain. He is a gentle and straightforward man who loves this place, and who made it his life's work. When I speak at a CLE somewhere out of town, I am often approached by former students of Dean McSwain's who remember him with great fondness-- often, he is the professor they remember best. Then they tell a story about him, and these stories always describe a person who is both greatly respected yet profoundly human, and who truly loved what he did. As legacies of our work go, I'm not sure there is much better than that.

Tuesday, April 29, 2008


What to do with grades turned out to be a remarkably easy question!

In retrospect, I realize that soliciting the thoughts of students (on whether to release PR grades immediately) may not have been consistent with the history and traditions of Practice Court. Nonetheless, it all turned out to be moot. I went down to tell Registrar Jerri Cunningham to hold the grades until Friday, and she kindly informed me that Baylor doesn't release grades until after finals are done, anyways. Whoop! Once again, policy answers the hard questions in life.

At any rate... no one failed.

[ed. note: The post linked to above has perhaps my favorite comments section ever]


The Church of the Uncomfortable

I have to admit that I haven't followed closely the controversy involving Rev. Jeremiah Wright. He seems to have said things that made people mad, and I'm sure that I would disagree with much of it. At the very least, he makes people uncomfortable.

However, underlying the controversy is a problem within our churches. Too often, we look to church as a place that will affirm us, where we will be "comfortable." This goes beyond finding a church that matches our religious beliefs, to the point where people look for a church within a denomination where their political and social beliefs will not be challenged.

Is this the proper role of a Christian church? I wonder. Jesus was constantly making his audiences uncomfortable-- telling the rich man he had to sell all his things, telling the pharisees that they were hypocrites, and challenging physically the moneychangers in the Temple. Peter and Paul faced the same, and like Jesus, they were the target of those who wanted to silence their voices.

Should a preacher leave politics alone? Some see this as the message of Jesus looking at the coin and saying "To Caesar what is Caesar's, and to God what is His." I think that could be a reasonable reading. It also seems, though, that it could be that Jesus is saying that money is not of God-- that it is a force apart from God. And what a contrarian statement that is in our current political and social worlds! Again, it seems designed to make us... uncomfortable.

Monday, April 28, 2008


JAG as a good example

Over the past few years I have encouraged some of my students to pursue a career in JAG (especially those already in the service or inclined that way in the first place). My experience has been that JAG officers receive great training and are a bastion of principled criminal lawyering. This didn't change my mind about any of that.


So, what should the professor do?

I have pretty much finished grading the PR finals, and coming up with quarter grades. Should I put them out now, or is that bad timing given that the PC students have two more exams to before the end of the week?


Getting done with finals, going to New York

After finals and graduation on Saturday, I will be heading to New York next week to do some work on my next writing project. It will be great going back to the big city-- I really do love it there, and get a lot done.

One thing I always here when I talk to New York is people saying that "it isn't like it used to be." Which is, regardless of your reference point, true. Change is a constant, and that is part of what marks the place in an eternal way. How terrible if it didn't change! Right now, the thing to be nostalgic for is the period around 1977, when the city was on the brink of collapse, the power was going out, and "Son of Sam" was the serial murderer du jour. It was a dangerous and edgy place, and if you wanted you could rent an apartment in an unsafe neighborhood (there were plenty) for reasonable rent.

Sunday, April 27, 2008


Commencement speakers

I swiped this list of spring law school commencement speakers from Paul Caron's Taxprof blog, which in turn I found through Leiter's blog:

* Akron: Bedford Biles
* Albany: Jeanine Pirro (TV legal analyst; former District Attorney, Westchester County, New York)
* American: Stephen Breyer (Justice, Supreme Court)
* Baltimore: Ted Turner (media mogul)
* Boston College: Michael Mukasey (Attorney General, United States)
* Boston University: Niki Tsongas (Member, U.S. Congress)
* Brooklyn: George Bundy Smith (Partner, Chadbourne & Parke; retired Associate Judge of New York Court of Appeals)
* BYU: Matthew Durant (Justice, Utah Supreme Court)
* Capital: Jennifer Brunner (Secretary of State, Ohio)
* Cardozo: Dennis Jacobs (Chief Judge, U.S. Court of Appeals, Second Circuit)
* Case Western: Mark Dann (Attorney General, Ohio)
* Catholic: Samuel Alito (Justice, Supreme Court)
* Chapman: Erwin Chemerinsky (Dean, UC-Irvine Law School)
* Chicgao-Kent: Lisa Madigan (Attorney General, Illinois)
* Cincinnati: Billy Martin (Partner, Sutherland Asbill & Brennan)
* Columbia: Cynthia McFadden (Co-anchor, ABC News)
* Cornell: John Blume (Professor, Cornell)
* Duquesne: Richard Thornburgh (former Governor, Pennsylvania; former Attorney General, United States)
* Duke: William Neukom (President, ABA; Partner, Kirkpatrick & Lockhart Preston, Gates Ellis)
* George Washington: Daniel K. Inouye (Member, U.S. Senate)
* Golden Gate: Lee Baxter (former Judge, California Superior Court)
* Harvard: Cory Booker (Mayor, Newark, NJ)
* Hofstra: Adam Liptak (Reporter, New York Times)
* Indiana-Bloomington: Richard Lugar (Member, U.S. Senate)
* John Marshall (Chicago): Jonathan Turley (Professor, George Washington; TV legal analyst)
* Lewis & Clark: John Lewis (Member, U.S. Congress)
* Loyola-L.A.: David W. Burcham (Executive Vice President & Provost, Loyola)
* Loyola-New Orleans: Scott Turow (legal novelist)
* LSU: Bobby Jindal (Governor, Louisiana)
* Michigan State: Marilyn Kelly (Justice, Michigan Supreme Court)
* New England: Larry Lucchino (President & CEO, Boston Red Sox)
* New York Law School: Dennis Archer (Chairman, Dickinson Wright; former President, ABA, and former Mayor, Detroit)
* New York University: Anne Milgram (Attorney General, New Jersey)
* North Dakota: Ralph Erickson (Judge, U.S. District Court)
* Northeastern: Stephen Breyer (Justice, Supreme Court)
* Northwestern: Jerry Springer (TV show host; former Mayor, Cincinnati)
* Notre Dame: A.J. Bellia (Professor, Notre Dame; winner, Teacher of the Year award)
* Pace: Theodore Jones (Judge, New York Court of Appeals)
* Penn State: Michael Apfelbaum (Partner, Apfelbaum, Apfelbaum & Apfelbaum)
* Pennsylvania: Bill Richardson (Governor, New Mexico)
* Pittsburgh: Debra Todd (Justice, Pennsylvania Supreme Court)
* Quinnipiac: Barry R. Schaller (Justice, Connecticut Supreme Court)
* Richmond: Henry Hudson (Judge, U.S. District Court(
* San Diego: Thomas O'Brien (U.S. Attorney, Central District of California)
* South Dakota: Stephanie Herseth Sandlin (Member, U.S. Congress)
* South Texas: Richard Anderson (CEO, Delta Airlines)
* Stanford: Joe Bankman (Tax Prof, Stanford; winner, Hurlbut Award for Excellence in Teaching)
* UC-Berkeley: Mary Schroeder (former Chief Judge, U.S. Court of Apeals, 9th Circuit) & Anne Joseph O'Connor (Professor, UC-Berkeley)
* UC-Davis: David Rosenberg (Presiding Judge, Yolo Superior Court)
* UC-Hastings: Willie Brown (former Mayor, San Francisco)
* UCLA: Morgan Chu (Partner, Irell & Manella)
* USC: Erwin Chemerinsky (Dean, UC-Irvine Law School)
* University of St. Thomas: Edward Toussaint Jr. (Chief Judge, Minnesota Court of Appeals)
* Vanderbilt: Nicholas Zeppos (Chancellor, Vanderbilt)
* Vermont: Madeleine May Kunin (former Governor, Vermont)
* Virginia: Timothy Finchem (Commissioner, PGA Tour)
* Wake Forest: Jim Talent (Fellow, Heritage Foundation; former member, U.S. Senate)
* Washington & Lee: William Webster (former U.S. District Judge, CIA Director, and FBI Director)
* U. of Washington: Sherman Alexie (author)
* Washburn: Dennis Moore (Memberm U.S. Congress)
* Whittier: Linda Sánchez (Member, U.S. Congress)
* Western New England: Reena Raggi (Judge, U.S. Court of Appeals, 2d Circuit)
* William & Mary: Sandra Day O'Connor (retired Justice, Supreme Court)
* Wisconsin: Thomas Barrett (Mayor of Milwaukee)
* Yale: Kenji Yoshino (Professor, Yale)

At Baylor, the commencement speaker will be our own Jeremy Counseller, who did an amazing job the last time he was called to this duty (Winter, 2007, I think)-- the best commencement speech I have heard at Baylor. The picture above (of student speaker Heather Davenport) was taken at that commencement-- my habit of taking photos from the stage sometimes produced something worthwhile.

Saturday, April 26, 2008


The lesson of Carmen: Federalizing state crimes can make for difficult proofs on a temporal showing of intent

Carmen, by Bizet, is one of the most-performed operas, and for good reason. In the clip above (which stars "some other guy" rather than TallTenor), we see the final scene. Spoiler alert! Well, maybe that doesn't work the same in this genre.

In short, Carmen tells the story of a gypsy woman who works in a Spanish cigarette factory. She is a wily temptress who draws in a soldier in the Spanish army named Don Jose. Eventually, having lured Don Jose away from the army and into a life of crime, she abandons him for a well-known bullfighter. Heartbroken, Don Jose follows her and eventually kills her. The story allows for a wide range of expression and themes of reversed gender roles, the threat of sexuality, and the dark side of passion. It is both rooted in a historic place and time and thoroughly modern, which must contribute to its powerful effect on modern audiences. It provides three showpiece roles, including that of Don Jose, which is played by Placido Domingo in the clip above. TallTenor (William Joyner) has played this role throughout Europe and North America, with many of the most prestigious opera companies in the world. This is the role he is now playing the Austin Lyric Opera production, and when I saw him on Thursday night he was great.

Many of my students are probably now wondering the same thing I was pondering during the Austin production of Carmen: Were Don Jose's actions a violation of federal law pursuant to 18 U.S.C. Section 2261A? The answer is probably yes (assuming venue in the United States), but it may be a difficult case to prosecute. The difficult element to show would be intent-- that is, that the travel in interstate commerce (to the bullfight arena) by Don Jose was with the intent to kill, injure, or harass Carmen. No doubt, Don Jose would argue that his intent at the time he traveled was for the purpose of loving Carmen, not killing her. His carrying of a knife was typical of travelers at the time, and (he would argue) was not for the purpose of killing Carmen. There was, after all, no history of operatic violence between them. This case perfectly illustrates the problem of federalizing state crimes: It often creates a difficult federal nexus element of intent which can be difficult to prove and can lead to acquitals in cases that really belong in state court.

Anyways, the clip below does show TallTenor-- he's the guy in the gold headpiece.

Friday, April 25, 2008


Haiku Freakin' Friday, Already!

[click on the picture for a larger, more terrifying chef/law review editor-in-chief]

So, I just finished having a nice chat with TallTenor after his performance in Carmen tonight, which was excellent. I'll post more about it on Saturday.

For now, though... it's Haiku Friday, finals week edition. The categories (never mandatory) for this week include:

1) So, what's so bad about repeating PC, anyways?
2) Opera
3) Skylab
4) Bullfights
5) Prison
6) Tom Jacob made my breakfast
7) The worst fast-food joint of them all
8) Gumby
9) Bunnies
10) Things not to do in Austin

Here is mine:

Eggs, carpet, mouse poop
This is the worst breakfast, ugh-
Thanks a lot, TJ.

Now it is your turn--

Thursday, April 24, 2008


Midnight Breakfast

For you non-BLS folks, Midnight Breakfast is a thingee where the professors serve breakfast to the students at the start of finals. As with most things involving free food, it is pretty popular.

Last night I got to serve pancakes, which is a great job, because pancakes are both yummy and fly well if tossed the right way from a distance.

The rest of today will be fun, as well. I'm lecturing in Austin to the federal panel attorneys, a crowd that hopefully will include Razor friend Squeeknsqueeker, then I'll be attending the Austin Lyric Opera's performance of Carmen, starring Razorite Talltenor. Woo hoo!


The tiny cells multiply wildly within the organism, eventually choking off vital functions

1) Cancer is such a fascinating disease, and I'm always amazed by the researchers in that field. So many advancements have been made in my own lifetime that we look at the disease differently. It is survivable now, rather than meaning almost certain death, and there are survivors all around us. I don't have the talents for it, but if I did I would love to be on one of the teams working on these projects, trying to unlock mysteries and save lives. The Race for the Cure is coming up in a week or so, and I always find the sight of the runners moving, even if I am not one of them.

2) The American prison population continues to be the world's highest per capita, and some of the statistics relating to this are shocking. We obviously are committing our treasure to this project of incarceration, and it is fair that the results be debated. Part of that debate, obviously, has to be the simple fact that imprisoning more people, even if they are chosen at random, will reduce crime because part of the population is incapacitated, and that effect is multiplied if we simply incarcerate the uneducated. Locking up everyone lacking a high school education, for example, would undoubtedly reduce crime, as that group provides so many of the people who commit crimes.

Wednesday, April 23, 2008


Polygamist Fashion-- The Next Big Thing?

Yesterday, the Waco Trib did a great job of breaking down polygamist fashion. Here's the really informative part:

The puff-sleeved, pastel dresses worn by the women in the sect are a combination of original 19th-century wear and 1950s clothing that was adopted when the church took a conservative turn, according to Janet Bennion, an anthropologist who studies polygamist women.

The dresses are meant to show modesty and conformity: They go down to the ankles and wrists, and are often worn over garments or pants, making sure every possibly provocative inch of skin is covered.

John Llewellyn, a polygamy expert and retired Salt Lake County sheriff's lieutenant, says the women cover themselves "so that they're unattractive to the outside world or other men."

The appearance of unity through uniform dress, however, can belie the jealousy that often arises when the women — who might all look alike to an outsider — find themselves in competition with one another over the affections of the same man, Llewellyn says.

The clothing is also stitched with special markings "to protect the body and to remind you of you commitment," Bennion says. She declined to go into detail about the stitchings because she said it would be an infraction against the community — a fundamentalist sect that broke from the mainline Mormon church, which disavows polygamy — to talk about their sacred symbols.

Pastel colors evoke femininity and don't come across as bold or strong, says Bennion, a professor at Lyndon State College in Vermont.

Then there's the question of the elaborate hairdos.

The women never cut their hair because they believe they will use it to wash Christ's feet during the Second Coming, Bennion says. A Biblical quote says a woman's hair should be her crowning glory.

The bangs are grown out and rolled (but usually not using a curling iron, because that would be too modern). There are sausage curls on the sides and often braids down the back.

The exact history of the hairstyle is unclear, but it is reminiscent of the Gibson Girl image of the 1800s. It's a pre-World War II look, exaggerated with the pompadour, Llewellyn says. Chloe Sevigny's character in the HBO show "Big Love," about modern polygamists in Utah, has mastered the 'do.


Is a caption even necessary?

I don't watch enough television. I have no idea what is going on in this picture. Usually, in situations like this, I end up having IPLawGuy explain it to me.


Baker and the church

I highly recommend this post by newly minted Baylor grad Stephen Baker.

It's seems that for many people, part of their faith journey is a period in which they are angry at God, at the church, or at both. I can't say that I have had that period in my own life, but I find it moving when I hear about people dealing with that. In Oral Advocacy, Marc Ellis talked about the anger that some Jews have over the holocaust, and it is hard to imagine how a Jew would not have anger at God, the God of the Covenant, over that. I see it in Catholics (like Baker) and in my brother Baptists (over the SBC split), too.

The very idea of God is a complex one. On top of it, if God is superior to us in His powers and understanding, then it must be that there things about God we will never understand. The power of faith and God, though, is reflected in the fact that in the middle of anger, the question of who God is and what He wants is still there, seeking answers.


So, what's your major?

As usual, the Leiter blog is full of intriguing information, including this report on how various undergrad majors do on the LSAT, compiled by the philosophy department at IUPUI (Indiana Univ./Purdue Univ. and Indianapolis). Perhaps not surprisingly, philosophy majors are reported as doing pretty well. Here's the rundown:

The highest scoring majors:

Physics/Math (157.6)
Philosophy/Religion (156.0)
Economics (155.3)
International Relations (155.1)
Chemistry (154.5)
Government/Service (154.4)
Anthropology/Geography (154.1)
History (154.0)

And the lowest scoring:

Management (149.4)
Sociology/Social work (149.3)
Bus. Administration (148.6)
Health Profession (148.6)
Education (148.2)
Prelaw (147.3)
Criminology (145.8)

Tuesday, April 22, 2008


The Baylor Tenure Kerfuffle

Along with about 200 other professors, I attended yesterday's State of the University presentation by Baylor's President John Lilley. Provost Randall O'Brien was also there, but didn't answer any questions during the time I was there (I had to leave a few minutes early because of a make-up sentencing class).

Most of the questions at the meeting reflected the issue faculty are most upset about right now-- that 40% of those up for tenure this year were denied. We did not have anyone at the law school up for tenure this year, so we weren't directly affected, but of course we are all affected in one way or another by the tenure policies. Quite a few of us made the trek over to Bennett Auditorium to hear the presentation.

Unfortunately, I don't think much got cleared up. Because of privacy concerns, the administration can't say much about how the decisions got made, and the faculty were frustrated at not knowing how the process worked. It was, sadly, one of those times when communication probably did not make things better. I know people on both sides of the disputes, and the whole thing makes me sad.



Today was the last day of PR. It's always kind of draining to teach that last class of the quarter; I use the first and last classes to frame the content of the others, so it takes special attention. Notably, I incorporated Lane's suggested paintings into the lecture.

Any suggestions for test questions? I will give all due consideration.


Thank you for your fine suggestions, Lane

It's rare that I pull something from the comments and make a post out of it, but commenter Lane's ideas were so intriguing I had to bring them to the front. He though, first, that my art history lecture should include something from the school of Socialist Realism, such as this painting of Stalin with some adoring Communist Scouts:

Second, Lane believes that there should be room somewhere in the PC curriculum for Goya's famous work (which he painted directly on the wall of the dining room in his house), depicting the Roman myth in which Saturn devoured his own children:

Any more ideas, friends?

Monday, April 21, 2008


The mystery of the Sentra and Jackson Pollock

Last August, I saw one of my favorite things ever: A grey, 1987 Nissan Sentra being driven by a an overweight teen-age girl. The striking part was what she had had written on the back window: "This is Why I'm Hot!" I thought that maybe she had no air conditioning in the car, which would be a killer in a Texas summer. Ever since, I've been looking for that car again, but so far haven't spotted it to get a decent photo.

Of course, she probably has taken the song title off the window by now. It might have been a high school graduation thing, and I know something about that. We thought it would be a great idea to paint up a van as the "Jackson Pollock Mobile." In the style of the abstract expressionist Jackson Pollock, we threw paint at it with a spoon and rolled a tricycle with paint-dipped wheels around on it. The effect was awesome, but no one got it (even after we neatly lettered "Jackson Pollock Mobile" on the front). It seems that not every family shared the Oslers' interest in art history.

How nerdy is that? Hard to beat.

Tomorrow, of course, I briefly return to those roots for the last day of PR.


Yet another reason to hire a Baylor Law grad (and not me) as a federal judicial clerk

Friend of the Razor " _B_" sent along this shocking report, which shows that judges who hire clerks from certain high-falutin' schools get reversed more often. Crikeys!


My take on the Eldorado FLDS

Several commenters has asked for my opinion on the raid on the FLDS compound in Eldorado, Texas. I have several thoughts:

1) As to the charges, my time as a prosecutor has taught me NOT to have an opinion until the facts are known publicly. It could be that some of the women or children being held are making statements which reveal rampant sexual abuse, or it could be that they aren't. I just don't know, so I can't opine. What I learned from being on the inside of investigations is that they are intentionally opaque to people on the outside.

2) I'm pretty sure there will eventually be a law in Texas that pre-emptively allows a search of any place described in the media as a "compound" and located within the state's borders. It's a regional thing-- in Texas a compound is full of religious kooks, while in New England, a compound is where the United States President and his family go on vacation in the summer.

3) I would agree with The Ladybird that the FLDS women appear to be doing something inhuman with their hair. That kind of wavey-knot thing on the front... how do they do that? Right now, my hair looks like some kind of gardening accident, so the idea of maintaining such order and control on top of one's own head is beyond my comprehension.

4) In a few weeks, I am lecturing down in Del Rio, and it appears that Eldorado is on the way. If so, I will stop in, hoping that it is as interesting as my last such stop in Rock Springs.

Sunday, April 20, 2008


I have been to Virginia's 11th District and it is pronk

Congress Debates Merits Of New Catchphrase


Sunday Reflection: Church and the soul

[You can click on my photo to make it bigger]

Today I missed church; I was in Houston with friends of a different faith who didn't go to church this morning. It doesn't feel right, somehow.

I have a lot of friends who both identify themselves with a faith and don't attend services. Many times, they will say "I'm Christian, but I can't stand church people," or assert that they have had a bad experience with a church. Neither describes me.

I really can't judge those people who don't attend church-- I got out of that business of evaluating the faith of others a while ago. I do know, though, that for me, I need church. If I don't worship in community, by spirituality starts to fade, and the sharpness, the directiveness, of my faith withers. It becomes ghostly and distant, and inactive within the machinery of my life and decisions.

Recently, I have started to ponder why this is. I don't look to church for easy answers to spiritual questions, since I do believe that we have to figure those out for ourselves-- I believe in both the priesthood of the believer and soul competence, and am not cut out for any denomination with a magisterium or creed. (Thank goodness for traditional Baptists!). Given that, why do I need church? I suppose there are two principle answers. First, I need church so that I can feel affirmed in the basics of my faith, and share worship with (somewhat) like-minded people. Second, I need the intellectual and spiritual challenges church provides to the answers I have come up with. I often find that in Sunday School or during a sermon I find an idea contrary to my own, leading to a re-examination and sometimes a change in my own beliefs. It keeps faith real and meaningful and active, and when that is true I can be at my best.

Saturday, April 19, 2008


Academic freedom and the power of debate

Brian Leiter has taken sides in the debate over John Yoo's job at Berkeley, and I think he has taken the right side. One great danger to the academy is the impulse to eject some people because we think their ideas are wrong. It is, after all, the intellectual engagement with those we think are wrong that defines academic debate, and such debate is our second-most important function as professionals (after teaching). Without those we disagree with involved in the discussion, it can hardly be called either academic, intellectual, or a debate.

For those of you who have not been following the kerfuffle, John Yoo is a former DOJ official (with the Office of Legal Counsel) who is now employed as a law professor at UC-Berkeley's Boalt Hall school of law. During his time with the DOJ, he was a principle author of several documents which justified the use of torture and argued for an expansive view of presidential authority at the expense of individual rights and governmental checks and balances. Because of this, some strongly believe that he should be removed from the faculty at UC-Berkeley.

Some of the same issues arise in the new Ben Stein movie, Expelled, which was reviewed this morning by Razor Hero of Writing Carl Hoover. Intriguingly, both Ben Stein and John Yoo went to Yale Law School. This may be surprising to some people, given the liberal reputation of the place, but other grads include Pat Robertson, Justices Alito and Thomas, and current Attorney General Mukasey (whom I got to debate on the pages of the Waco Trib a few weeks ago). From my own experience, I can say that the diversity of strong opinions within the student body there convinced me of the need for a variety of voices within any worthwhile discussion.

In my present life as a law professor, there are people in the intellectual worlds I inhabit with whom I strongly disagree, but I count some of them among the smartest people I know, who regularly hone my own ideas. Without that diversity of thought, we academics would be a bunch of like-minded people sitting around complaining about "the others," and that is not a role going unfilled in American society right now.

Friday, April 18, 2008



It looks like I'm coming up on 200,000 hits. How should I celebrate? If I remember correctly, Chris Frankenhooker of "SoTheBearSays" celebrated with some monster truck stunts, but I'm not sure that is my style.


And now some calming haiku...

It's been a long week here at Razor central. With class and practice court mini-trials, I've had about eight hours with students every day, turning everything else into a rush. It's time for some... calming haiku.

I realize that a picture of Patty Hearst with an automatic weapon might not qualify as "calming" to everyone, but relative to the rest of the week, it's close. As for the haiku, let us consider these topics:

1) The Symbionese Liberation Army
2) Finals approach
3) Things Osler should do
4) The Eldorado polygamists
5) Gumby
6) The Baze decision
7) Cars
8) Ironman
9) Summer approaches
10) Graduation Day

Here is mine:

Patty Hearst, heiress
Stockholm syndrome darling girl
What Symbionese?

Now, you take a crack at it...

Thursday, April 17, 2008


Recurring Dreams

Since one of the mandates of the blog is to discuss repressed memories, it may be time to revisit that rich field of lore.

As a kid, I had this recurring dream in which I was at the bottom of a pit, and pilgrims (hats with buckles, etc) were looking down at me. It was unclear whether they were there to help me or if they had put me down there.

Now, the pilgrims have returned. In the new dream, I am arguing a case in the Court of Appeals (I think the Second Circuit), and at the table for opposing counsel are those same pilgrims! What's with that?

If you have any insights into what this may mean, let me know, and feel free to share your own recurring dreams. Finals, of course, seems to unleash nocturnal musings, so I suspect there may be a lot of material here...

Wednesday, April 16, 2008


Update: Texas announces intent to resume executions hours after Baze is announced

Predictably, Governor Rick Perry announced immediately after the Baze decision that Texas meets the standards announced in that opinion, and would immediately swing the execution process back into action.


The Supreme Court decides Baze, and upholds the three-drug lethal injection method

The decision is in, and the months-long effective moratorium on executions is now over. Here is the key blurb from Scotusblog (the masters of summarizing):

In a widely splintered decision, the Supreme Court cleared the way for executions to resume across the country, concluding that the most common method of lethal injection does not violate the Constitution. The final vote was 7-2 in Baze v. Rees, although there was no opinion that spoke for five or more Justices. The Court’s plurality adopted as a standard for assessing the validity of an execution method whether it poses a “substantial risk of serious harm.” It rejected the death row inmate’s proposal that the standard be “unnecessary risk.”

As you might have expected, I have previously discussed Baze here. The subject, in fact, is the topic of one chapter in my upcoming book, excerpts of which are available here.

For another take on this, check out the many posts by Doug Berman on the subject.


Study Methods of the Gods!

One week from today classes are over, which means that a student's mind turns to finals. I would imagine that there are many study methods-- probably even classes on how to study-- but most of us develop our own style early in our careers as a student.

My own personal method was certainly, well, personal, but usually effective. There were three basic steps:

1) Create a master outline of the material, incorporating class notes and the reading. I would also throw in a few critical analyses of my own-- ie, ideas for essays on possible topics.

2) Review the master outline and reduce it to an even shorter outline.

3) Finally, create a third, very short outline which would hit the main points and critiques. Often, after this, I would go back to my first master outline and review it.

This format worked best for tests that consisted of a few essay questions, which is mostly what I saw in law school. For example, as my classmate Brett Kavanaugh remembered when visiting here a few years ago, our property exam had one question: "Communism v. Capitalism. Compare."

So, what is your method?

Tuesday, April 15, 2008


Ron Beal Rocks Ad Law

Well, as much as Administrative Law can be "rocked," Prof. Beal rocks it. As described in this article, Professor Beal recently caused the Texas Supreme Court to substantively alter an opinion after it had been issued by submitting a letter to that Court.

I don't know much about administrative law, but as I understand it the case involved administrative rule-making related to payments made to hospitals. The Supreme Court, on hearing the case for the second time, ruled while relying on two Court of Appeals decisions, remanding to the administrative agency. While agreeing with the outcome, Prof. Beal realized both that the decisions cited involved a different kind of rule, and that the remand should have been to the lower court, not to the agency.

Though he had no personal financial interest in the case, Prof. Beal realized the these aspects of the opinion were faulty. He wrote an amicus letter to the Court, which then revised the opinion (without citing Prof. Beal). Thus, Prof. Beal didn't get paid for this, got no credit for it, yet changed that important opinion in the best interests of the law. In serving as role models for our students, I can think of no better example than Prof. Beal's actions, and it reflects well on both his expertise and integrity that he sees this as a part of his work as an attorney.


My favorite last assignment

For the last class in Oral Advocacy, I assigned a video. I'll be interested to see what people think of it...

Monday, April 14, 2008


Scholarship Stuff

Almost exactly one year ago, I blogged about a great article by David Skeel entitled The Unbearable Lightness of Christian Scholarship. Last week in Boston I got to spend some time with David, a law prof. at Penn, and it only deepened my respect for his work. I continue to think that "Lightness" offers a valid critique, and identifies a void that I am trying to fill (in some small part) with my own faith-related work.

Speaking of that work, I spoke to my publisher last week, and things are looking good for publication of my book within the next ten months.


The search is over! And the answer is... none of the above.

Not so long ago, I asked for advice on buying a new car, and got 52 responses. As you might remember, my top listed options were the Acura TL, the BMW 328i, the Honda Accord, and the Infiniti G35.

I am now the owner of a new car, and it is none of the above. Instead, I'm the proud and happy owner of a car costing much less than any of those-- a black Mazdaspeed3. It's great little car which fits all of my requirements, and is a technological marvel. If you love to drive, and I do, it is a wonderful little friend to have.

On the road to this decision, a bad experience with Vandergriff Acura soured me on having to deal with out-of-town dealerships for the the long-term relationship I usually have with a car. My new Mazda was purchased from Charles Silmon down at Miller Mazda here in Waco, and it will be easy to bring it back in. It fits me in a way my BMW 530i (in many ways, a perfect car) never did-- the bigger car was always kind of ostentatious, and that is not me, or at least I don't want it to be me.

0-60 in 5.4 seconds. A great short-throw manual transmission. A rockin' stereo. A back seat. I'm a happy driver.

Sunday, April 13, 2008


Sunday Reflection: The devil inside

This morning in Sunday School, we talked about the events described starting at Acts 19:11, in which some magicians are attacked by evil spirits they are trying to exorcise. This business with evil spirits also plays a major role in the Book of Mark, in which Jesus drives out a number of evil spirits.

Theologians I trust tell me that the ancients were fascinated by evil spirits because they explained things about the natural world which were not then understood. Still, there must be some eternal message there-- about an evil inside that can be banished. As I sat there in class, I realized that this is at the heart of an eternal and ongoing debate in criminal law-- the debate between putting incapacitation or rehabilitation at the center of sentencing's goals.

Evil spirits, as described in the Bible, exist in a person but are something other than that person. That is, the person (good) is filled with an evil spirit (bad). As told repeatedly in the scriptures, once the bad evil spirit is removed, the person who remains is good, often immediately praising God. The idea of evil spirits supposes a good vessel with something bad in it which must be removed.

This fits with the idea of therapeutic rehabilitation, which holds that a convicted criminal is fixable once the bad thing (drug addiction, pedophilia, etc.) which is at the root of the crime is removed. The criminal is essentially good, and the key is to remove the evil spirit, often conceived of as an illness of one type or another.

The idea of incapacitation as a primary goal, on the other hand, holds that the person IS the bad thing, that the evil spirit and person are the same thing, and the best we can do is hold them away from the rest of society. Rehabilitation is not worth the effort, and we gain safety by building more prisons.

I know very well that rehabilitation very often fails, and can be almost futile in some areas. Still, as a Christian, it is hard for me to accept the second construct, at least in whole, because it does not allow for redemption. More deeply, perhaps, I accept that what Jesus did must somehow still be possible-- to remove the evil from a person and leave the good vessel whole. We aren't very good at it, and it can be expensive, but I'm not ready to abandon the defining idea of man which so clearly informed Jesus. He saw the evil and the person as separate, and so must I.

Saturday, April 12, 2008


Another new blog emerges, and deep thoughts about Pokemon

Hey! Yet another new BLS blogger has been spotted, Nathan Winkler. He's doing well in law school, and is good at statistical analysis, which is... kind of something I will need help with this summer. Huh, I gotta get to know this "Nathan Winkler."

Anyways, I was flipping channels at the gym, and saw part of the cartoon version of Pokemon, which is popular with kids of a certain age. Here's the schtick-- kids make their pets fight until they "faint," which looks a lot like killing them. The pets are poisoned, shocked with electricity, burned, stabbed, frozen, shaken, and hit with plants. Now, how is it that this is terrible for Michael Vick to do, but fine for children's entertainment? Then again, having seen Ultimate Fighting Championships (also available on television), we also think some of it is ok for humans, but not animals.

Of course, it follows in a long line of children's entertainments which involve horrible fates for children and animals. The little match girl freezes to death-- thanks for that terrifying bit of my childhood, Hans Christian Anderson!

Friday, April 11, 2008


Yet another Not-3L Blog emerges!

Finally, these people are getting the hang of it! Welcome to "Time With The Thompsons, which is currently chronicling the exciting world of intramural moot court.


Good news for Baylor Bears...

According to the Waco paper of record, Baylor penned a long-term contract with men's basketball coach Scott Drew.

Baylor AD Ian McCaw is very good at what he does.


Haiku Friday in the Spring....

As if you couldn't guess, the photo above was taken earlier this week at Boston College, at the lunch with Provost (and Baylor grad) Bert Garza. I love the light coming in from the windows, diffusing through the room and lighting the room with sharp contrasts.

Here are this week's haiku topics:

1) Baylor as Hogwarts
2) BLS Staff shout-outs
3) Worst 1Q moment
4) Boston
5) If there is such a thing as reincarnation, what will Chicago come back as?
6) The Simpsons
7) Bates! The Musical
8) Advice for IPLawBaby
9) The most dangerous part of Waco
10) The Olympic Torch Relay

Here is mine:

Don't take VP Dick Cheney
As your Godfather, please!

You can follow 5/7/5 if you want, but I really don't care so much about structure anymore... just write a haiku-ish thing.

Thursday, April 10, 2008


Excellent new blog alert!

Today I found a promising new student blog, appropriately title Self-Infliction of Emotional Distress. It started its existence with a tidy little post properly comparing Baylor Law to Hogwarts, noting each of the following:

1. Baylor Law, like Hogwarts, has its own castle near a body of water.

2. 1Q Legal Research is taught by one Prof. Quarles. The equivalent Hogwarts class, Defense Against the Dark Arts, is taught by a Prof. Quirrles. A mere change in spelling!

3. The phrase "Ten Points from Gryffindor!" was actually coined by Baylor Prof. Jim Underwood, who still holds the original copyright.

4. The Hogwarts grounds are inhabited by mystical creatures. This is a clear reference to the Baylor Law grounds and its well documented Serr Bear population.

5. The Hogwarts headmaster speaks with the portraits of past headmasters to gain advice. Everyone at Baylor Law knows that Dean Toben talks to the portraits of past Deans after the library closes at night. Why else are they on the same floor as his office?

6. Alan Rickman was selected to play Severus Snape only after Prof. William Jeremy Counseller turned down the job.

7. Some Hogwarts professors had been teaching there for almost a century. Baylor contracts Prof. Larry Bates has this record beat by almost three decades.

7. Hogwarts students strictly avoid interacting with muggles. Obviously Rowling observed the relationship between Baylor law students and undergrads.

8. The game of quiddich is a very thinly veiled reference to Baylor's world-class intramural basketball teams.

9. Sorting Hat? Moot Court point class round? No further explanation needed.


The Heart of the Law School

Visiting Harvard Law last week, I was struck by how separated the students were from the faculty, and, physically, from one another (since the school is in several buildings). Baylor has the advantage of being much smaller, and one thing that comes from that is that people know one another. In fact, I have never been at a school where so many of the students know a member of the custodial staff by name, and I think that is a wonderful thing.

As I prepare to go into school (and perhaps get one of Maria's great breakfast burritos), I was thinking about those members of our community who aren't heralded.

Who deserves recognition, my friends?

Wednesday, April 09, 2008


A lot of people are thinking creatively about law schools

Prof. Ryan tipped me off to this entertaining site, a mobblog which offers up all kinds of ideas on what law schools are doing, might do, and should be doing.

I was especially interested in one recent post on single sex schools. While I was in Boston, I visited a family friend who is a freshman at Wellesley, which in itself (given the success of its graduates) is a pretty good advertisement for single-sex education.


I escaped the incompetence of American Airlines!

Yesterday evening, my plane touched down in Dallas to an eerie sight-- there were no planes on the runways or taxiways. The pilot announced that everyone's connecting flights had been cancelled.

Inevitably, everyone feared the worst. Perhaps there had been another 9/11, and all flights were grounded. Maybe a crash, or other disaster.

Of course, as we all now know, the FAA had grounded most of American's Dallas fleet due to maintenance issues. American claims that these are simply "technical" issues, and has implied that the grounding was unnecessary. However, it seems that the problem was this: The FAA identified improper wiring in American's planes last month, and ordered it to be fixed. American said it was fixed. Then, yesterday, the FAA re-inspected the wiring and found the problem still existed on several of the planes they checked. To put it in terms of law school, American got a second memo, and probably deserved it.

Tuesday, April 08, 2008


Opening Day at Fenway

I'm at Logan Airport getting ready to head back to Texas, but here in Boston it is opening day at Fenway Park. The World Champion BoSox are back in town, and that's big news here. I drove past the park today and saw the crowds heading in, and wish that I was a part of it. Fenway is a fascinating park-- as the diagram here shows, it is a bizarre shape, with left field shortened and then covered up with a giant green wall. Baseball is an odd sport in that there is no standardization as to the size of the playing surface-- it is as if in football some fields were 80 yards and others were 120.

Boston is intriguing in a number of ways. The toll taker calls you "boss," and the hot dogs are served in regular bread. To emphasize things, they tend to put words in quotes rather than underline, bold, or italicize them. Thus, you end up with a sign that says "Please... "no" smoking." Now, to my reading, those italics signify that they don't really mean "no," but that is "not" a proper Boston interpretation.

Plus, you can't find a decent fried pie in the whole state.

Monday, April 07, 2008


I had forgotten how cold it can be in April...

At least it is cold here-- I am in Boston at this conference. This morning I spoke to the group about some of the things we do at Baylor, and got a good response from an audience which included six law school deans-- a great group to hear the good news about Baylor.

Boston College is a remarkable place. I love the town and the college itself, even though it is about 40 below zero outside. I had the pleasure of being seated for lunch not only with Dean Starr and Dean Brauch, but Bert Garza, who is the Provost here at BC. He is a Baylor grad twice (BS and MD, before getting a Ph.D. from MIT), and has been very successful here. I was surprised to find a Baylor guy in charge of academics at Boston College, but perhaps I shouldn't be. It seems lately that I am running into impressive Baylor grads all over the place.

After the sessions (and before dinner in the North End), I went out with Rory Ryan to visit his sister who is a first-year at Harvard Law, which is supposed to be pretty good.


Look! It's the newest IPLawBaby!

Name: Miriam Shriver Brooke
Nickname: "Sandra Day"
Length: 4'2"
Weight: 57 lbs.

Way to go IPLawFamily!

Sunday, April 06, 2008


TallTenor to perform in Austin!

College buddy and Razor commenter Bill Joyner will be performing this month in the Austin Lyric Opera's production of Carmen. Performing the role of Don Jose (a role he has played around the world), Bill is described in this blurb as "one of the most sought-after tenors on the international opera scene."

The production will play on April 18, 20, 24, & 26, and you can buy tickets here. I know I'll be there, probably on the 24th, as I am giving a lecture that day in Austin. Do you think Bill would find my lecture on changes in narcotics sentencing as interesting as I will find Carmen? Er, probably not. But, since he is my only opera star friend, it doesn't have to be a mutual exchange.

So, Austin experts, what advice to you have for Bill as to what he should be enjoying while spending the month in Austin?

Saturday, April 05, 2008


Thanks, Tyd...

Fellow Grosse Pointe eccentric Tydwbleach sent along this, which is certain to further burnish Detroit's image.


Hey-- Good Job, CSO!

One idea that people have had over the past months is to extend Baylor's job placement by having initial interviews in places like Dallas and Houston. Well, it sounds like Heather and the CSO is moving in that direction! Here is the notice that went out yesterday:

Baylor Law School will be hosting its first Off-Campus Interviewing Program this spring. Through this program, Dallas area employers can prescreen resumes of new graduates (people who have graduated or will be graduating in Nov. ’07, Feb. ’08, May ’08 and July ’08) and select up to 20 people to interview. All interviews are held in the employers’ offices on one date – Tuesday, May 6, 2008. There is no cost to participate.

Important Dates:

April 11, 2008 Employer Registration Deadline.

April 16, 2008 Student resumes will be batched and e-mailed to employers for review.

April 23, 2008 Deadline for employers to select students for interviews.

April 25, 2008 Employers can view final interview schedules.

May 6, 2008 Baylor Off-Campus interviews held in employers’ offices.

To Register:

Reply to this e-mail or call Ms. Monica Wright, Career Services Office Manager, at 254.710.1210.

Don’t miss this chance to interview some of the best new attorneys in the state! Please contact our Asst. Dean, Heather Creed, at 254.710.7617 or with any questions. We hope to see you Tuesday, May 6, 2008!

Friday, April 04, 2008


Haiku Friday!

I just can't hold it in anymore! I'm bursting with haiku! So, we'll start early this week.

This week, we will stick with the relaxed standards inspired by Jack Kerouac's haikus. In fact, let's go all the way in abandoning tradition and use two-line poems without any syllable requirements. If you feel the need for three, well, no problem-- let your freak flag fly.

Here are this week's topics:

1) Liturgical dance
2) 0-60 auto acceleration testing
3) Singing in French
4) Ballistics
5) Post-modern literary theory
6) Mime
7) Ranching
8) Tenure
9) The right car for Osler
10) The best fast-food hamburger

Here is mine:

Only one place--
Husky Boy Burgers.

Now-- you go, dogs! Go!

Thursday, April 03, 2008


Osler needs some serious help!

I'm looking for some research assistants for this summer. I have a bunch of projects going on, all of which are fascinating in one way or another (at least to me). I would like assistants who are strong researchers, who have an interest in criminal law, and who are at least a 4Q. If you are interested, email me at

In addition, talent in one of the following areas is a plus:

1) Liturgical dance
2) 0-60 auto accelleration testing
3) Singing in French
4) Ballistics
5) Post-modern literary theory
6) Mime
7) Ranching.

Wednesday, April 02, 2008


Thanks for all the ideas!

I kept the last post up all day because I was really enjoying all the great advice on cars. I loved many of the suggestions based on your own experiences. I can't say that it eliminated any of the options, but it did make me feel like it is a good group to choose from and gave me new perspectives on each.

I'm hoping to decide by the end of the month-- we'll see how that project goes!

For now, I'm thinking about class. My performance in PR yesterday was sub-par and that means I have to make tomorrow above average...

Tuesday, April 01, 2008


Help Prof. Osler Buy a New Car!

It's time to get a new car (which means, of course, that if you are in the market for a loaded 2001 BMW 530i with 79k miles, you know who to talk to). Cars are important to me, in part because I'm from Detroit and that gets in your blood, and in part because I really love driving.

So the question is, what to get? My needs are complex. I don't really need a beautiful car, but I do like one which is quick, handles well, not too large, and has a back seat. There is an additional complication, too. I'm having a bit of a spiritual crisis, as well-- I can tell that my desire for nice cars is probably contrary to my faith. At the least, I want a car with good mileage and that won't shout out arrogance as I drive. I also prefer a manual transmission and rear-wheel drive. Here are the candidates:

1) Honda Accord V-6

The Accord is unpretentious, utilitarian, has decent power, and plenty of room. It is also very reliable and can be serviced in Waco. It is the only car of this bunch which runs on regular gas-- the rest take premium. Front-wheel drive, and no manual transmission.
0-60: 7.4 seconds
21 MPG

2) Acura TL

This is basically a jazzed-up Accord. It is a better driver's car than the Accord, but costs about $4,000 more (about the same as the next two). The basic version, sadly, comes only with an automatic transmission. I'm not sure whether or not it can be serviced in Waco. Front wheel drive.
0-60: 6.7 seconds
23 MPG

3) BMW 328i

This comes in sedan and wagon style, though the latter might make me look like Bates. It's a great driver's car, available in a stick, and gets better mileage than the Accord. Kinda pretentious, though, not the most reliable, and hard to service in Waco.
0-60: 6.9 seconds (with automatic)
24 MPG

4) Infiniti G35

A nice sedan that really goes, and is decently reliable. Comes with a stick. I'm not sure about servicing it locally. Rear wheel drive, but not so great mileage.
0-60: 5.4 seconds
19 MPG

So, what do you think? Any opinions?


Top 25 Law School Starts Bold New Program (That looks pretty familiar...)

Washington & Lee Law School in Virginia, which consistently ranks in the top 25, has announced this bold revamping of their 3rd year program. Here are some of the specifics:

-- it will be mandatory for all 3rd-year students
-- it relies heavily on simulations of trial and other legal practices
-- it is sharply focused on practical skills

Does that sound like, oh,... Practice Court? Which has been around for 80-some years? You bet it does. Even a broader discussion of the change reflects the same perceived strengths and concerns people have about PC after some 8 decades. There is the possibility, it seems, that the broader legal academy may be considering a move back towards the practical education Baylor always provided, using the methods we have long promoted such as the extensive use of simulations. (In fact, I find it odd that no one from W & L came to talk to us as they developed this).

Notably, the W & L program does diverge from Baylor's Practice Court in significant ways. Specifically, it will allow for simulations other than civil litigation, and it will include a clinical component.


A bad consumer experience

If you need your car repaired in Waco, I would discourage you from taking it to Freddie Kish's Car Care Center out on Franklin. I had a really disappointing experience there today. Long story short, I admire their clean lobby but doubt their honesty.

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