Tuesday, June 30, 2009


The Madoff Sentence

Bernie Madoff, perhaps the greatest financial shyster of our time, was sentenced to 150 years yesterday. As the judge made clear, this was a "message-sending" sentence which far exceeded Madoff's natural life.

Was it justified?

As a scholar of sentencing, I usually look to the traditional goals of punishment, incapacitation, deterrence, and rehabilitation. A sentence like this, because it is so much longer than the period of time Madoff will live, does not serve the goals of rehabilitation or incapacitation any more than a 20-year sentence would (keeping in mind that there is no parole in the federal system). As for punishment, it may in a vague way serve a purpose, in that there is a humiliating aspect to such a long sentence. Perhaps the only real justification for a 150-year sentence is to deter others. It might serve this goal because it has been so widely reported, and utilizes such an extreme figure.

Still, if the Madoof sentence is justified for deterrence purposes, is that the best way to deter white-collar crime? I would argue that it isn't. The better way to deter others in his position would be to impoverish Madoff's family, arrest him publicly, and televise the conditions of his confinement. All that, and a 20-year-sentence, would make the kind of statement Rudy Giuliani did when he busted inside traders by making them do the perp walk out of their office past horrified colleagues as news cameras rolled.

Vindictiveness is not a valid sentencing goal, and neither is "setting a benchmark" in the absence of mandatory guidelines. Above all else, sentencing should be a firm consideration of the convicted individual, and in this sentencing the judge seemed more directed to the cameras and others than the felon before him.

Monday, June 29, 2009


Who's to Judge?

I am lucky to count among my friends several people who serve as judges. I use the term "serve" in its purest form, too-- the job requires sacrifice that many people don't realize. Perhaps most importantly, the judges I know uniformly are making less money than they would otherwise. Also, the job can be tremendously isolating; judges don't have a natural peer groups in their profession. They are surrounded by attorneys they must keep at arm's length, and clerks who are a generation or more removed from the judge. Finally, they face tremendous restrictions on what they can do and say in public-- they do not have free speech, political and otherwise, in the way the rest of us do.

There is something else, too... for a lawyer, I would think it must be tremendously frustrating to preside over a trial in which people are not doing a good job. I have seen this happen: Watched the pained face of a judge who knows that the advocacy is not what it should be. It is like an athlete watching his own sport played by lessers.

Yet still, people want the job, and I'm glad they do.

Sunday, June 28, 2009


Sunday Reflection: Death of an enigma

Friday morning I had the pleasure of a visit from Dustin Benham, with whom I have worked and had many adventures. I'm so glad that Dustin is and will be teaching at Baylor Law. Dustin said the most insightful thing I have heard about the death of Michael Jackson, and I am going to repeat his observations here.

Dustin had taught that morning, and some of his students reacted to the news that Michael Jackson had died with some derision-- obviously, they were not Michael Jackson fans.

Dustin's reaction was to remark that if you have a problem with Michael Jackson, then really your problem is with our dysfunctional media-driven society as a whole-- because Jackson was the personification of so many of the problems we have created in our culture. Racism? Check-- Jackson obviously tried to get away from being black by changing his appearance. Sexualization of children? Check. Financial irresponsibility? Check. Narcissism? Check.

In other words, Jackson embodied much of those parts of our culture that pull us away from a spirit-filled life. His death makes me sad, in part because he never did redeem himself, and neither did we. The forces that created him are still powerful among us, and we do too little to turn away from them.


This just in...

Got a tip on this from TallTenor. He probably didn't know that my brother once wrote lyrics for the Canon, which (I think) won them third place in a "Battle of the Bands" back in high school. The winner, I think, was a band called "Sweetleaf." It was the 70's, ok?

Saturday, June 27, 2009



There is a way in which this photo was a mistake, but I love the way it turned out... as always, you can click on the photo to enlarge it.

Friday, June 26, 2009


Haiku Friday: Texas

I spent much of my week in rural Texas near Marble Falls, where I took this photo on Wednesday. It's the kind of country that Texans love, and this picture shows one reason why-- the beautiful sky, that even on a brutally hot day is hard to ignore.

I was on a cabin porch when a reporter from the AP called to ask about some breaking news-- the Attorney General's comments on federal sentencing. Though the reception was spotty, I offered some thoughts while looking out at the scene pictured here. Apparently, those comments made it into over 500 news outlets around the world, including the Washington Post, the Miami Herald, and even Fox News (gasp).

Texas is like that. You can sit out in the country and ponder an issue, and the next day that thought is all over the world. It is this amazing combination of tradition and what is most modern, the high desert and Dallas, with some sense that the two are connected.

So, let's haiku about Texas:

If I stand right here,
Behind this old mesquite tree
I can see the whole.

Now it is your turn-- you can haiku about Texas weather, Texas summers, Texan Farrah Fawcett, Texas style, Texas sunsets, the Texas Rangers...

Thursday, June 25, 2009


Political Mayhem Thursday: Will the Republicans come back?

As someone uncomfortable with one-party rule, at least for very long, I'm sad to see how badly the Republicans are floundering. They are led by the far right of their party, who showboat for the base, and make few moves to attract the moderates who win elections. If they don't change course, they will continue to become a regional party, not a national one.

Will they come back? When? How?

Wednesday, June 24, 2009


Texas Death Camp

It is over 100 degrees every day this week. I think we all are going to die soon here. Send water.

Tuesday, June 23, 2009


The myth of international law

I am often shocked at how many people come to law school hoping to become a practitioner of "international law." They often imagine a globe-trotting life of trying cases in international tribunals. I have sad news-- there really is no such thing as that type of international law, at least on any large scale. Instead, there are many lawyers whose practice involves international clients or transactions, but this is just one part of their practice. Few are able to maintain a wholly international practice.

Of course, you might consider immigration law to be international (and it is), and there are people who do that full time. My friend IPLawGuy has a significant international practice, but he is an IP lawyer first, and those clients ask the same questions as the others.

My advice is this: If you want to have an international practice, don't think you will work in "international courts." Few people do, and almost no Americans. Rather, pick a specialty that will lead you to have international clients, such as patent work, immigration, or Intellectual property. The excitement is there, believe me, and the practice can be fulfilling.

Monday, June 22, 2009



I am reading about what is going on in Iran, but I'm baffled in part by the news. I want to be outraged by the government and cheer on the protesters, but it seems unclear whether there was a problem with the election at all. While the government certainly should be condemned for cracking down on the protesters, this is one of those things where the point of conflict seems to be unimportant relative to other things going on.

One of those things is a demographic time bomb. Iran has a majority of its population under 30, which is more of a baby boom than even the US experienced in the 60's. And we all know what that was like here...

What should the US do?

Sunday, June 21, 2009


Sunday Reflection: Who you are

When you describe yourself to a stranger, do you include your faith as part of that description? I find that most people don't. I often do, and I have gotten some strange reactions-- as if that isn't supposed to be relevant to one's public persona.

It is surprising how an open admission of faith makes people uncomfortable, whether that proclamation takes the form of what you say, what you do (pray before a meal) or what you wear (a headscarf, for example).

Where does that discomfort come from? Sometimes I think it comes from a fear of being evangelized to, or from being rejected or harmed by the faith asserted.

How public are you with your faith? And how public do you think I should be?

Saturday, June 20, 2009



Congress Debates Merits Of New Catchphrase


Tom Featherston Honored

Tom Featherston, my colleague and neighbor, received the Distinguished Probate Lawyer Lifetime Achievement Award from the 7,000-member Real Estate, Probate & Trust Law Section of the State Bar of Texas during a ceremony in Houston last week. He seems pretty young to be getting a "lifetime achievement award," but that guy has always worked fast.

It really is an impressive thing. Much of the reason Tom is so respected in his field is that he spends a lot of time analyzing and helping reform Texas law in that area, and because he devotes what otherwise might be "free" time to providing continuing legal education to estate lawyers in Texas. Both of these things are important and always speak well not only for Tom but for Baylor.

Originally, I thought that after receiving the award Tom entertained the crowd with selections from the hit musical "Mama Mia!," but it turn out that the singing was by his grand-daughter Cameron. Not that Tom couldn't do that, too...

Friday, June 19, 2009


Haiku Friday: Summer Music

It seems like every summer there is a song that I pick up on the radio, by the pool, everywhere. This has been true back to the days when my car had only an AM radio. Still, a song from some summer back there will trigger memories.

So haiku about summer. It doesn't have to be about a song. I'm easy. Just don't haiku about health care policy. Ah, whatever-- if you want to haiku about health care policy, let your freak flag fly, man.

Maybe I've been spending too much time in Austin.

Anyways, here is mine:

Girl in the next car
Is singing; open the window:
"C'mon get higher..."

Now it is your turn:

Thursday, June 18, 2009


Political Mayhem Thursday: Health Care

I'll admit that I still don't much understand the Obama health care proposals. They include a lot of things that McCain's plan featured as well: More efficient record-keeping, more preventative medicine, and lower overhead.

First, critics of the Obama plan need to accept one thing-- that it does not mandate European-style single-payer health care. In fact, it primarily seeks to expand the availability of health insurance from private insurerers. However (and this is the most controversial part right now) Obama want to allow a public insurance plan that would compete with the others. Essentially, this would be an extension of Medicare-- that is, people could buy into the public Medicare system that presently covers only older Americans.

The advantage of this is obvious. Medicare would compete with the private insurers, making them more efficient. Coverage would be also be expanded so that many more people would have insurance.

Is this a good idea?

Wednesday, June 17, 2009


Looking doofy, feeling authorish

Yesterday was a great day. The reading at Bookpeople down in Austin was wonderful-- a big crowd, including some of my former students whom I was really happy to see.

The attendance was probably helped by the article in yesterday's Austin American-Statesman. That paper also had a teaser at the top of the front page, which featured me in a goofy, looming-over-something pose which I only enhanced by making some kind of chucklehead expression. Nice. Fortunately, Patrick Beach's article was very well done, and certainly well appreciated by me!

Tuesday, June 16, 2009


The Smoker's Friend?

My good friend and blogging hero, the Spanish Medievalist, recently reflected on his ideas about smoking. In a nutshell, here is his take:

If you smoke, I'm not going to get on your case unless I care about you, but if I do care, watch out because I'll fight tooth and nail for your life.

I'm torn on this issue. If you love someone who smokes, is it worthwhile to try to get them to quit? What is the trade-off between making that attempt and the damage it might do to the relationship? How much should we respect the habits of others, even if they are dangerous?

When I was a kid, my dad smoked cigars. We really got on him about it. At one point, we shoved broken cigars into the air vents in his car, even. Some of these stunts made him angry, but he did quit at about that time.

Still, when I think about our attempts to make him quit, I still feel guilty about it, like I was a bad kid. Certainly, we were dorky and pushy about it. I don't think I will do that again to anyone.

Should you try to get someone you love to stop a bad and fatal habit?

Monday, June 15, 2009


Tonight they're gonna rock you, tonight!

Conan just announced that his guest tonight is legendary band Spinal Tap. If you are up, tune it in!


On Becoming a Professor

Periodically, I will get emails from people wondering how to become a law professor. It's a tough question. Different schools look for different things, and timing matters a lot. That said, here are some things that (too) many law schools look for:

1) Advanced degrees besides a JD
2) Federal judicial clerkships, the more prestigious the better
3) Class rank and law review membership
4) Published scholarship (yes, before you become a professor)
5) The law school you attended

By these common measures, a Stanford grad who clerked for Scalia, was at the top of her class and on law review, who published an article her first year out of school, and has a Ph.D. in economics is going to get a LOT of interviews.

What's wrong with that picture, though? First, none of those things in any way indicates that she will be a good teacher. Second, this list of attributes does not include experience practicing law, which is the enterprise she will be training people for.

Many people with this background turn out to be great teachers and scholars, in the end. Others do not. The problem, more than anything, is that what some schools look for is the ability to produce scholarship to the exclusion of all else, including the ability to teach or to actually create change through scholarship.

Sunday, June 14, 2009


Austin Sunday and North America's Largest Taco

Things went great at the First United Methodist Church in Austin this afternoon-- I had an audience of informed and fascinating people who had lots of intriguing questions. It seems like a wonderful church.

Before that, though, I had lunch with TJ and Jaime Turner (and their son Cameron) along with Chris Philley (the "Secret Canadian") at Juan in a Million's down on Cesar Chavez. I got the Don Juan Taco, which turned out to be a giant plate of eggs, cheese, bacon, and potatoes served with some tortillas. It was excellent. I'm still pretty full, in fact...


Sunday Reflection: Denominational Mismatches

Through the course of my life, I have principally worshiped with Congregationalists, Quakers, and Baptists. It's not as strange as it might seem-- all of these groups allow for a broad range of individual thought and belief.

However, I know many people whose beliefs don't match their denomination. I know some Baptists who long for a magisterium, and Catholics who don't believe in most of the distinctive beliefs of that church. These mismatches become more apparent as I get to know people.

I really don't have much insight into how this comes about. Are you a mismatch? If so, how did that happen?

Saturday, June 13, 2009


A kind word from a Jazz Theologian

Robert Gelinas, the lead pastor of the Colorado Community Church, had a very kind review of Jesus on Death Row over on his blog, Reflections of a Jazz Theologian. It was a good affirmation as I switch gears from Juvenile Life Without Parole to the death penalty this week in Austin.


One of my favorite photos

I really do like this. Do you? What do you think it is?

Also, if you live in Austin and aren't doing much this week, please come over to First United Methodist Church at 2 pm tomorrow for about as good a time as a person can have talking about the death penalty.

Then, if you are still under-stimulated, come to Bookpeople at 7 pm on Tuesday. I will be waving my hands over my head and yelling as Judge Manske takes cover nearby. The Austin Chronicle, in its listing for this event, promises that "MARK OSLER brings capital punishment to the bloody door of the self-righteous with his Jesus on Death Row." Crikeys! That's a lot to live up to...

Friday, June 12, 2009


Dark German Haiku Friday

It is night. I am in my office. There is a broad unmoving river out the window behind me and a glowing screen before me. I am listening to Kraftwerk and restructuring the DNA of my thoughts. Also, doing some grading.

For Haiku, you may do any of the following:

1) You may write your haiku in German, or have a theme of:
2) Minimalism
3) Technology
4) Music
5) Bauhaus aesthetics
6) Nuclear power
7) Airports
8) Gestalt
9) Nihilism
10) Sandy Duncan

Here is mine:

Florian, Karl, Wolfgang,
May I buy a Moog and play?
Digitize me now.

Now it is your turn...

Thursday, June 11, 2009


Political Mayhem Thursday: Post-Haircut Thoughts About Sarah Palin

OK, enough about juvie life without parole (though if you want to read my written testimony, you can get to it here).

Instead, I'd like to reflect on something I stumbled on in yesterday's Washington Post. It appears that Sarah Palin is starting to cheese off some establishment Republicans by failing to keep track of invitations. Most recently, she was invited to be the keynote speaker at a big GOP fundraiser this week. Apparently, she did not respond for a while, then her staff said she couldn't come. Then, after they booked Newt Gingrich to give the keynote, she said she could come.

The gist of the Post's article was that Palin isn't keeping track of things, and thus is unqualified to be President.

I think that is ridiculous. A president typically gets a large enough staff that the staff can take care of the invitations and schedule. Sure, as governor of a lightly-populated state Palin probably is not used to the crush of attention she now enjoys. Still, if she was elected, this would be taken care of by people who are good at scheduling.

There is, of course, a reason that Palin should not be President, and that reason is that too often she doesn't seem to know what is going on in the world, and often loses track of what she is talking about in mid-sentence. Eloquence and knowledge are good things, especially in a President of the United States, and there is a bare minimum below which we should not troll. Palin is below that line. No one else can take care of that vital part of the President's base of knowledge and manner of speaking in the way they can scheduling.

Wednesday, June 10, 2009


A few short observations...

I'm on my way back to Texas now. I will report more on this fascinating experience over the next week, I'm sure, but in the meantime, a few notes:

1) In preparation for my appearance here, I got what must be the worst haircut I have ever had. Really... and that is saying something.

2) The hearing itself was fascinating. The room was packed, with people standing along the back wall, and the room itself was as intimidating as I imagined.

3) I think I did well, though it is hard to judge from my own seat. It was not on C-SPAN, and I'm not sure if it is online somewhere or not.

4) What I got right was largely the result of the work of Chris Rusek and Kaye Johnson.

Tuesday, June 09, 2009


Enough about me-- what about Mr. Lego?

I'm sorry if the blog has been a little self-indulgent lately. I realize there is a lot else going on in the world right now.

One question people often have is "what is going on with Mr. Lego?"

The fact is that I don't really know, and haven't heard from him since April. Does anyone know what he has been up to? That is other than this:

Monday, June 08, 2009


City of Law

I have an ambiguous relationship with Washington, DC. I have have had some bad experiences (that unfortunate incident at the Roy Rogers, leading to unfounded rumors I had robbed the place) but also many wonderful moments. Things are very different for me here than my usual life in Waco; I wear a suit, and people recognize me for different things than at home. It is almost like having a secret identity.

One great thing about DC are the public monuments. I love several of them, but the Lincoln Memorial most of all. There is a little marker where Martin Luther King, Jr. stood, and I always make sure to spot it. On the other side of the mall, the Capitol and Supreme Court are monuments in their own way (though a little intimidating at the moment). My favorite may the Vietnam memorial, which fits its place and message so well. The Smithsonian, though-- that place is crazy. I saw a movie about it.

What is your favorite DC place?

Sunday, June 07, 2009


Sunday Reflection: Balance

In preparing my testimony for Tuesday's hearing, I incorporated a short section on faith. It follows a much longer section about the context of sentencing at present, which I see as a period of moderating past excesses of retribution, not a time of wholesale change. Here is that portion:

The present trend towards incremental changes in which we back away from the most retributive parts of our criminal justice scheme is not only consistent across jurisdictions, but echoes the traditional religious value of seeking a balance between the virtues of justice and mercy.

In what has become one of the best-known scriptural passages in this nation, Micah 6:8 advises the people of Israel thus: “And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God.” To those in criminal law, the passage presents a challenge. If justice means to treat people equally and with a sense of punishment, and mercy means to offer an unearned chance for redemption, the two are in tension.
This tension reveals at least two truths: That we are to be humble in considering the question, and that our justice systems must incorporate some elements of both justice and mercy.

This requirement of balance between justice and mercy speaks directly to the bill at issue, which does stake out territory somewhere between purely retributive justice (life without parole) and mercy (release or a short sentence), and neatly incorporates aspects of both. The bill allows for retributive sentences, even of life in prison, but also offers the hope of redemption in the form of parole. Notably, this hope is different than the promise of a shorter sentence, and is tied to the behavior of the prisoner himself, as parole will more likely be granted to those who have turned away from violence and drugs.

The child sentenced to life with the possibility of parole is still likely to perceive the weight of a nearly overwhelming punishment. The position of such a convict is perhaps best described in Lamentations 3:27-29: “It is good for a man to bear the yoke while he is young. Let him sit alone in silence, for the Lord has laid it on him. Let him bury his face in the dust—there may yet be hope.”

Life with the possibility of parole for a child will encompass precisely this balance between values Americans treasure.

Saturday, June 06, 2009


Oh, no, not that...

Yesterday a great group of people, including professors and students, helped me run through my testimony and prepare for questions by taking on the personas of various members of Congress who sit on the committee I will testify before on Tuesday. I just hope the real thing goes better than this:

Congressman's Son Won't Shut The Hell Up During Hearing\

The hearing itself, on H.R. 2289 (The Juvenile Justice Accountability and Improvement Act of 2009) has been moved to 3:00 pm on Tuesday, in Rayburn 2141. If you can't find, maybe you can just listen for "Dylan"...


I can't believe I lost track of this...

I've been busy. Not to busy to blog, of course, but busier than summer should be, and somehow I lost track of the Stanley Cup finals and didn't know that Pittsburgh had won game four until a kind soul filled me in on that fact late yesterday.

Now the series is tied 2-2. Yikes. Maybe it is true that Detroit can't afford a parade.

Friday, June 05, 2009


Haiku Friday: Hated Sports Teams

Sure, anyone can be a fan of a team. That's easy. What's more interesting is to really loath some other team, preferably the rival of your favorite team. My personal top loathed team is the Colorado Avalanche from about 1998-2005. Grrrr. See above. Other most despised: Ohio State (any year), Miami football (1980's-90's), and the California Angels. I really have no reason to loath the Angels, but for some reason I do. Perhaps it is the pretentious name...

So, that's our topic: The Hated Rival.

Here is mine:

Oh, that Woody Hayes!
He's the grouchy old neighbor
With cheeks like two hams.

Now it is your turn...

Thursday, June 04, 2009


Political Mayhem Thursday: Tell It To Congess!

Today I received a very nice letter from Rep. John Conyers, the Chair of the House Judiciary Committee, asking that I testify at a hearing this coming Tuesday on a bill which would restrict the use of life without parole sentences for juveniles. I've been scrambling to get my testimony together, but with the assistance of Kaye Johnson and Chris Rusek, I think it will work out fine. The hearing will be at 3:00 on Tuesday in Rayburn 2141. If there is nothing more interesting going on, it will probably be on C-SPAN.

As an academic, there is something really wonderful about getting to speak directly to lawmakers. I know some of my colleagues, such as Tom Featherston, have affirmatively changed Texas law through this route, and it seems so much more efficient than writing articles and then hoping someone reads them.

It doesn't make sense to rehash the topic itself-- Sadly, we have already discussed the subject of life without parole for juveniles. Still, I would like to pose a related question:

If you got two minutes before Congress, what would you urge them to do? Assume (unrealistically) that you would have their undivided attention, and perfect attendance.

Wednesday, June 03, 2009


Summer Movies

I see that the summer movie lists are beginning to proliferate. It's hard for me to generate much enthusiasm for anything other than Firestorm V: Return to Explodar City. Rink Allegro is back as Jack Dagger, the bold cop with the big gun and a quick wit. This time, Explodar City is threatened by the Ungars, a giant pod of 6-foot white locusts. White collar crime is their game, and they play it exceptionally well. In the end, Allegro is seen leaping from a giant explosion. In theaters this August.


Sports, in rank order of quality

The top five:

1) Ice hockey
2) Lacrosse
3) Auto racing
4) Skiing
5) Baseball/softball

The bottom five:

127) Donkey basketball
128) Ice dancing
129) Kicking
130) Candlepin bowling
131) Fish snagging

Tuesday, June 02, 2009


Hummer finds a "buyer"- and real men drive a school bus

Apparently, GM has reached an agreement to sell Hummer, the maker of gigantic SUVs. GM will not disclose the buyer or the price.

I suspect that the price is something close to $0.00. Would anyone venture a guess as to who the buyer might be?


William Ayres and Rush Limbaugh

One of the legitimate criticisms of Barack Obama during the election was that he did not show good discernment in accepting the support of William Ayres, a formerly violent left-wing radical who remained ambivalent about the use of violence in opposing the government.

Ayres was a part of the Weather Underground, which used bombs to try to accomplish their goals. The members of that group, like others, built their political ideals on the words of overheated commentators who hated their opponents. What these commentators taught was that those who disagreed with you about politics were your enemies, and enemies of the nation. People like Ayres repeated and acted on that perversion of political discourse.

Rush Limbaugh and his ilk did not urge anyone to shoot an abortion doctor in church (in fact, Rush pretty much ignores religion). They did, however, create a climate on the right wing where political opponents are consistently described as enemies of the nation and people to be hated. To do this, on the right or left, is not the same as actually becoming a violent terrorist. Being a hate mongerer should not be made illegal, but it is still (like many other things which are not illegal) wrong, dangerous, and irresponsible.

Monday, June 01, 2009


What's Important and What's Not

Today GM is converting to a government-owned enterprise via bankruptcy. This is wrong and sad and important in a number of ways. As I mentioned a few years ago, GM is a victim, more than anything, of arrogant management.

Meanwhile the Red Wings won game two of the Stanley Cup finals. This makes me happy, but it is not important.


The Journalism Teacher

I was tipped off yesterday that my old journalism teacher, Mr. Amberg, passed away last week. I got the tip from one of the other people in our class, Lex Kuhne, who wrote a fascinating reflection on our little group of cub journalists. That class of about ten people produced a varied but successful group of adults. Believe me, though-- I don't think anyone saw that coming. We felt like a bunch of goofs at the time.

That fits in with a theory I have had, though-- I don't think anyone remembers themselves as particularly popular or successful in high school. Even those who had a lot of success during that period of their lives tend to remember themselves as loners or geeks.

So,... were you the exception? Were you the popular kid at high school who realized it? Or were you like us?

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