Osler's Razor

I have been using Wednesdays to profile my fellow classmates in the Yale Law class if 1990. Strikingly, most of them have found wonderful vocations. However, law is a difficult field, and the stresses in big firms, in particular, can be overwhelming.

When we all got to New Haven, Chuck McKenzie was in many ways like me: a state-school guy from the middle of the country in a place full of Ivy League grads. It was easy to feel unsophisticated-- I know that I did.

Chuck was a straight-A student at Memphis State who had all the academic tools necessary to compete in our weird environment. There weren't many of us from the "fly-over" states, and we tended to know each other.

After graduation, Chuck snagged a plum job at Cleary Gottlieb, the big New York firm (as did, at the same time, last week's featured classmate, Hiram Chodosh). At the time the big New York firms were paying the best of nearly any job available to us, and Chuck had about $40,000 in loans to pay off. Partners made about $900,000 a year-- in 1992 dollars.

It didn't go well. According to an article in the Washington Post, Chuck told his dad he was on pace to bill about 3,000 hours of billable work in 1991-- a workload that requires working at least 11 hours a day, five days a week. His wife did not see him much.

In October of 1991, McKenzie began to suspect that he was being targeted with tasks by partners trying to drive him out of the firm. It's unclear whether or not that is true.

He clearly was not doing well, and on October 26 Chuck's wife Janice went to talk to some of the partners. He was given a leave of absence.

At this point, I have to interject my own sympathy for Chuck. I worked for a big firm and have known many, many people who have. Some have thrived; many others have not. It must have felt like a terrible failure to him at that time, especially given the expectations we were sent out of school with.

In January of 1992, he jumped off the roof of an 18-story Marriott hotel in Charlotte, North Carolina. His suicide was widely reported. I remember hearing about it on the news and feeling flattened.

There is a truth here that I try to convey to my students: The "plum" job that pays the most and that everyone seems to want may not be the best job, or even a good job, for most people. Big law firms are strange beasts. In the future, I will profile some of my classmates who have done great and good things while working at big firms. However, those firms have particular dangers. Overwork is one-- they can be perilous to the idea of a work-life balance. Amorality is another: big firms take cases based on who pays them, not on what is right or good. They may be entirely ethical in their discrete actions, but that "ethical" conduct often favors the strong over the weak and the rich over the poor.

When a former student comes to me who is burned out from working at a firm, I always think of Chuck, the classmate who was a lot like me. I take time to work it through with those former students, and open their minds to different options. I make calls.  I suppose that if nothing else, Charles Ford McKenzie's death created that good thing-- that those of us who knew him and now teach took to heart the lesson of his death.

Ahead of tomorrow's edition, I thought I might offer a recap of the classmates I have profiled so far, in the order that I profiled them:

Kathleen Clark (Professor and national ethics expert)

Joseph Tsai (Entrepreneur)

Michael O'Connor (Professor and social justice advocate)

Richard Sullivan (Prosecutor and Judge)

Cornell William Brooks (NAACP President, Professor, and advocate)

Fred Phillips (Camel merchant and financier)

Denise Morgan (Social justice litigator and professor)

Alex Whiting (War crimes investigator and professor)

Hiram Chodosh (International justice advocate, college president)

I love what Gavin does with topics like this. For example, last week:

Dear flat oval rock,
It took eons to shape you. 
Now, I must skip you.

And then it is hard to ignore my dad's revelation:

so much time staring
at the water still fearful 
of ever going in

And my Waco Friend has an important memory, too:

First Tuesday Month 9
Day spent with buds in the lake
starting school with colds!

It's summer, and for many of us that means going near to a lake or ocean. We are drawn to those places where water meets land, aren't we?

Let's haiku about that this week. Here, I will go first:

Lake Saganaga
Teeming with life, but so calm
A minnow explores.

Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun!

Wow, that was a long day-- especially for Robert Mueller! Here are some of my observations after watching or listening to much of the testimony:

1) Rep. Hakeem Jeffries of New York seemed to actually use the template I offered here on the Razor! You can see his questioning here, and note how it tracks my suggestions-- even including Mueller's "I would refer you to my report" almost exactly when he said that. I'm not saying he actually saw it-- who knows?-- but I did tweet it to him on Tuesday.

2)  Robert Mueller is a distinguished public service with a career that should be inspirational to all of us. But he is also 74, and one thing I am seeing overall is the problem with leadership by elderly people like Trump and Mueller. He seemed distracted, at times confused, and certainly not happy to be there.

3) The "bombshells" people are citing from the testimony (ie, that he decided not to subpoena Trump in the interests of efficiency, his emphasis on the Russian interference, his statement that the report did not exonerate Trump) weren't new-- they were all in the report in the first place. I read the report, and I found myself rolling my eyes at the questions from people who obviously did not.

4) One thing is clear from all of this: Robert Mueller thinks his report is primarily about Russian interference in the election and the problems that presents. He's right about that. The only member of Congress who seemed to genuinely grasp that was Republican Will Hurd of Texas, a former CIA officer. I thought his line of questioning was excellent, and went right to what really matters: the threat to our nation presented by foreign interference in the operation of democracy. Hurd is a fascinating figure who confounds our easy categorizations: a black Republican in a 2/3 Hispanic district, who speaks Urdu and was student body president at Texas A & M. In a more normal democracy, I would think Republicans would see his experience, talent, and ability to win over diverse voters and promote him for a higher office. But, it seems, these are not normal times.

I have been using Wednesdays here at the Razor to profile some of my classmates at Yale Law. It's been a project that has been profoundly humbling-- I really admire what so many of these friends have done.

This week we will meet Hiram Chodosh, a guy who was a standout even in the rarified atmosphere of Yale Law. I have a distinct memory of him in class, completely (and correctly) peeling apart an argument I had just made. He used facts. He's that kind of person-- a kind we need more of these days.

Hiram came to Yale Law from Wesleyan, a Connecticut school somewhere between the tiny and medium-sized (and also the alma mater of some of my favorite writers, including Jesse Wegman).  After law school, he practiced at Cleary Gottlieb, a big New York firm, and then started teaching at Case Western in Cleveland. He was there for 13 years, winning all the awards they had, and then in 2006 he was named the dean at the University of Utah's Law School.

At Utah, Hiram didn't just raise money and greet students. Along with teaching, he founded the Global Justice Project: Iraq with a $10m grant from the State Department. That kind of involvement in international development wasn't new to him; previously he had worked on projects in a dozen countries and fostered the development of mediation in India.

In 2013, he made a fascinating swerve and became the president of Claremont McKenna College, a prominent liberal arts college in California that peacefully co-exists with a diverse group of schools in a consortium that includes a women's college (Scripps) and a STEM-focused school (Harvey Mudd). There, Hiram has done what presidents are supposed to do: raise money (over $135m), start new initiatives, and inspire students.

I imagine that the students there love him-- both for what he has done for the school, and for the stories he has to tell. Both are important.

People seem pretty fired up about Robert Mueller's testimony in Congress this week. I think it probably will be frustrating for many. The DOJ has already instructed him to limit what he says to what is contained in his report.

I think that the questions will be more important than the answers, in a way. He will probably only answer "yes," "no," and "I would refer you to my report." Someone needs to craft a way to ask questions such that the substance of his report will make the case. If I was on the committee, here is what I would ask:

Me: As someone with a long and admirable career in law enforcement, you would agree with me that charging decisions are evaluated through an analysis of the elements of a crime, since in the end a prosecutor has to prove each element to be true, correct?

Mueller: That is correct.

Me: In your report, you identify three elements of the crime of attempted obstruction of justice, is that right?

Mueller: Correct.

Me: And in that report, you describe the amount of evidence going to each element, don't you? [here, I would quote from that section of Part II of his report, specifically going to the directive given to Don McGahn]

Mueller: I did.

Me: And your conclusion was that there was substantial evidence as to each element of the crime of attempted obstruction of justice?

Mueller: I would refer you to my report.

Me: That's what I am talking about-- you literally said that there was "substantial" evidence in your report as to each element of the crime of attempted obstruction of justice as you analyzed those elements, right? [again, I would use exact quotes]

Mueller: That is correct.

Me: If there is not substantial evidence as to each element, a prosecutor should not pursue a charge, correct?

Mueller: Yes.

Me: And it is fair to say that a prosecutor should only pursue a charge where there is substantial evidence going to each element?

Mueller: Yes.

Me: And here, the prosecutor of the President of the United States is the House of Representatives, through the process of impeachment, correct?

Mueller: Yes.

Me: And Congress is one intended audience of your report, right?

Mueller: I would refer you to my report.

Me: You are familiar with the regulations governing your report, which describe a report of this kind potentially being made available to Congress?

Mueller: I am.

Me: And there is substantial evidence on each element of the crime of attempted obstruction of justice, according to your report, right?

Mueller: Yes.

Me: And one would expect this body only to seek impeachment if there was substantial evidence, correct?

Mueller: Yes.

And that would, I think, make things clear to those with eyes to see and ears to hear.

You know who is having a good summer? Anonymous is, based on this haiku:

Dawn, bike to the beach
Breeze wafting over the pier
Blue water, blue sky.

Christine is doing pretty well, too:

Adirondack chair
a good book, gin with tonic,
bird song all around.

Meanwhile, Gavin is letting his freak flag fly:

Jump in feet first... nude. 
Sink down, bob up, tread water
Skinny dipping rocks!

I do not have a great memory. It's kind of a plague, in a way: I am terrible at remembering names and important numbers. I had to make up a little tune to remember my social security number, even. This has been true my entire life, and in my studies and vocation has sometimes put me at a disadvantage relative to those who have a photographic memory.

There is one wonderful feature to my forgetfulness, though.

It seems to be somewhat selective. I remember good moments with people, and sometimes my memory really embellishes it, too. It has happened several times that I have recalled a kindness someone showed me, and that person can't remember it or thinks I am adding to the story.

Conversely, I don't remember--with a few important exceptions-- bad moments. There are countless insults, awkwardnesses, and offenses that just aren't in my head anymore. People will apologize for things I have no memory of.

It's not something I do consciously, but if I could, I would. It has probably preserved a number or relationships and made me happier overall.

So, unless you did something big, don't think I am going to expect an apology. Instead, I might remember something great that you never did!

I really enjoyed this piece about my favorite Beatles song:

It's hot. Even when it is raining it is hot. Even at night it is hot. The humidity hangs in the air like a blanket over everything.

How are you dealing with that?

Let's haiku about that this week. Here, I will go first:

Wished for summer
And now it is here. Melty!
But kind of a rush...

Now it is your turn! Just use the 5/7/5 syllable pattern and have some fun!

This has been a pretty terrible week for civil discourse. And the fault lies at the feet of President Trump, who has been focused on race-baiting and whipping up his followers against Congresswoman Ilhan Omar and others. It's ugly.

I'm appalled that it has worked, too-- Republicans who know better are defending him, and at a rally last night his followers changed "Send her back!"

One trope that Trump has revived is that there are two choices: either refrain from criticizing the United States and its government, or leave the country. It used to be summed up on bumper stickers that said "America- Love it or Leave It!"

That (along with "better to ask forgiveness than permission") is one of my least favorite sayings of all time.

What makes America great is freedom of dissent. And, of course, those people bleating about "love it or leave it" are the same ones who spent eight years of the Obama administration criticizing our country and its government. They didn't "leave."

What bugs me the most is that this is a put-down that substitutes for any actual discussion of issues. It is a tactic of bullies. And I am really really sick of those.

On Wednesdays at the Razor, I am profiling some of my law school classmates. 

I'm finding that in digging up old classmates to talk about, I'm never tempted to say that someone was unimpressive or quiet in law school. The truth is that they all seemed brilliant and sophisticated and somewhat intimidating, given that my own background at that point was serving as a process server and flower delivery guy in Detroit.

Alex Whiting has done a lot of amazing things. After law school, he clerked for a federal judge in the Eastern District of New York and then served as a federal prosecutor for ten years in DC (with DOJ's Civil Rights Division) and in Boston (for the US Attorney).

That's when things got interesting (not that being a federal prosecutor isn't interesting--believe me, it is!).  In 2002 he became a prosecutor for the International Criminal Tribunal for the Former Yugoslavia in the Hague, and prosecuted a veritable rogue's gallery of war criminals, including Dragomir Milosevic. Later he served as the investigations coordinator for the International Criminal Court in the Hague.

In 2013, Alex returned to the US and joined the faculty at Harvard Law School, where he teaches criminal classes and works with the students there in a variety of settings. I have been lucky enough to collaborate a few times with Alex in the last several years: once on a debate with Rich Sullivan at Harvard, and again when I went up to Cambridge to work with his clinic students on clemency.

Right now, though, Alex is on leave. Why? Because he is spending the next few years as the Head of Investigations for the Special Prosecutors Office on Kosovo. There are few people with his skill set, and it is consistent with his character that he is using those skills for the common good.

One of the important debates in my field is about deterrence: specifically, the question of "does a long prison sentence (or a death sentence) given to one person deter others from committing a crime?

Sadly, the debate is mostly between people who know what they are talking about (on one side) and people who have no data, just "how they feel." The former think that deterrence is insignificant based on data or experience, while the latter believe deterrence happens and is very important because that is how they feel it should work.

Take a look at this report from the National Institute of Justice, a branch of the US Department of Justice. There isn't much bias here-- one would expect, after all, for the DOJ to support the idea that its actions deter crime and thus are worthwhile.

Instead, here are the five key (and interrelated) data points the report sets out:

1) The certainty of being caught is more important in deterring crime than long sentences.
2) Sending someone to prison is not a very effective way to deter crime.
3) Police can actually reduce crime by increasing the perception that people will be caught and punished.
4) Increasing the severity of crime does little to deter crime.
5) There is no proof that the death penalty deters crime.

In terms of what we do on the ground, it is the first point that is most important (and if we pay attention to it, the others will follow). Quite simply, solving more crimes is more important than punishing crimes harshly if the goal is (as it should be) to reduce crime.

There is a lot going on! Yesterday, Pete Buttigieg became the fourth candidate to explicitly adopt (with attribution!) the plan Rachel Barkow and I laid out for clemency reform.

Also, I had a piece in yesterday's Waco paper about the campaigning in Iowa. Check it out here.

Meanwhile, in haiku news, Christine revealed what probably is a real-life incident:

Late night radio
In-A-Gadda-Da-Vida
DJ on a break.

I'll admit that I am intrigued by Tesla cars. They look great and seem to be packed with great tech. And I suspect that electric cars are a big part of our future.

Here is the rub: I love long road trips, and they just don't seem practical for that. Any Tesla drivers out there want to weigh in?

There were some really terrible songs in the 70's. There were also some fantastic songs. And, of course, some that were just fantastically terrible. Love it or hate it, it is hard to forget it! Let's haiku about that this week.

Here, I will go first:

The had me in awe:
The Clintondale Dragonettes
And this was their song.

Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun!

I am devoting Wednesdays on the blog to profiling some of my classmates at Yale Law. I'm really amazed by what people have done-- each time I research one of them I have discovered a fascinating story.

Like a bunch of the people I have profiled already, Denise Morgan was double Yale-- she graduated from Yale College in 1986 before coming to the law school there.  Her parents were from Montserrat, and she grew up in the Bronx.

After law school she did... pretty much everything. She worked for a big firm. She clerked for a federal judge. She was a beloved law professor at Florida State and at New York Law School. She was an advisor to the nation of Eritrea as they drafted their constitution. She married and had a daughter.

In 1995, she took over a crucial school financing case in New York, representing the state's Black, Puerto Rican, and Hispanic legislative caucus. In 2003, that case resulted in a ruling that the state had shortchanged minority students in New York City schools in financing-- a disparity that advantaged suburban students by about five billion dollars a year. It was a huge victory for what is right.

And then, in April of 2006, she died.  It chokes me up to write that; she did such good in the world in her 41 years.

Lives like hers raise a challenge to the rest of us, who have the good fortune of longer lives, and the moral obligations to our society that come with it.

So... I sank a little money into a new project in Waco-- a bookstore called "Fabled," which will be located downtown not too far from the Silos.

It is close to opening. I love this shot of the interior, and imagining those shelves full of books.

I've always been a little curious about the whole Disney legendarium-- Mickey Mouse, Donald Duck, Goofy, Pluto, etc.-- that seem to exist as kind of free-floating ideas rather that characters with any kind of back story that anyone is familiar with.

For example, Mickey is a mouse. He has a pet dog, Pluto. That's ridiculous, of course, because the dog in a carnivore who will eat the mouse in any kind of a reasonable universe. Then, making things even more strange, Mickey also has a friend who is a dog, Goofy. Doesn't it seem odd that Goofy doesn't object to Mickey having enslaved one of his kind?



Anyways, Goofy presents all kinds of narrative dilemmas. For example, at some point he has a wife, identified as "Mrs. Goofy." But, apparently, they kill her off for some reason.



And don't even get me started about Pluto...

IPLawGuy got it right (in haiku):

American Music
Stephen Foster and Sinatra
Chuck Berry, Springsteen.

For most of my life, the idea of the trinity was pretty much meaningless. I got what the three parts of the trinity were--God, Jesus, Holy Spirit-- but it did not intersect much with how I thought about faith.

Like a lot of things relating to my faith, that changed once we started to do the Trial of Jesus and I had to dig in deeply to the Gospels and study almost everything Jesus said and did in preparation for using it in the case. I had to reconcile and connect Jesus both to the Old Testament and to our own time.

That is when the trinity fell into place. Each part is eternal, but our interaction with each changes with epoch. Before Jesus, the Jews saw themselves as directly interacting with God. While Jesus was on Earth, people directly interacted with him. In the era since, we directly interact with the Holy Spirit, as Jesus promised.

What does it mean to live in the era of the Holy Spirit, who Jesus said would come after him? In part, I think, it means we are left with principles and reason and what it is that Jesus taught, and that there is within us a counselor that guides us.

There are at times what I think of as "Holy Spirit Moments," where I intensely feel that counsel and comfort. Sometimes it even brings transcendence.  It is... a hard thing to describe, but very real, and very important of late.

I recently saw the movie "Yesterday," and was really moved by it. In a way, it was like hearing the Beatles songs for the first time. There is a scene, too, with John Lennon, that I have been pondering ever since.

My gripe with the Beatles is that so rarely-- at least in their prime-- seemed to be a band, able to play a song in front of a crowd so you could see their dynamics and process. Albums like Revolver and Sgt. Pepper hid behind technology to some degree, and that both lent a mystery to the songs and a sense of alienation (at least in me). The Beatles stopped touring in 1966, so there is almost no visual record of my favorite songs being played.

The exception is the "concert on the roof" from 1969, and it is worth the time....

I really would recommend going about thirty seconds into the video about to hear the start of President Trump's address yesterday, where he recalled George Washington's Continental Army taking over the airports. I'm not sure I knew about that, but there has been a lot of history uncovered over the last few years.

The United States is a wonderful place for many of us; one of many on this big Earth. Hopefully, Independence Day helped us to remember the good.

Let's haiku about that today! Here, I will go first:

USA? Someone
Get me a cheeseburger. We
Love our eccentrics.

Now it is your turn! Just use the 5/7/5 syllable formula and have some fun....

Earlier this week, I went down to Iowa to check out the political scene during the caucus run-up. I got a chance to see both Bernie Sanders and Amy Klobuchar, and it was exactly what I hoped for: intense, informal and fascinating.

Amy Klobuchar's meet-n'-greet was on the back patio of a brewpub in Muscatine, Iowa, hard by a (very active) rail line and the Mississippi River. I loved the crowd: a mix of fans and those curious about Klobuchar's candidacy.

Her stump speech was impressive: informal, funny, warm, and smart. She tends to emphasize her ability to get things done-- she is the master of the possible. Her policy proposals are much less ambitious than Bernie's, but much more attainable. For example, instead of free college for all and the elimination of all student debt, Klobuchar promotes free community college and a doubling of the amount of each Pell grant. That's a smaller ask, but attainable, and potentially life-changing for the people who benefit.

Klobuchar and I are from the same field: criminal law. There, you realize what the stakes are in human lives when the government acts. You learn the value of what's possible, and that making the changes you can accomplish will probably help more people than advocating things that are unlikely to happen.

IPLawGuy taught me a lot of what I know about American politics. One thing he talks about is "change" elections. For example, in 2016, people wanted change and only one candidate, however flawed, offered that. I suspect that this is a change election, too. Superficially, that would seem to favor Bernie, but the truth is that practicality and accomplishment would be the biggest change from what we have now.

The trip made me love the way our country does some things. To be president, you have to go into a basement gym or a brewpub by the tracks and make your case to whoever shows up. How great is that?

 I am devoting Wednesdays on the blog to profiling some of my Yale Law classmates. Everyone knows about Brett Kavanaugh, but there are so many other people who are fascinating and accomplished!


Fred P. Phillips IV ’90 from Yale Law School on Vimeo.

Yeah, I remember Fred Phillips from law school. He breezed in from Cornell with an additional degree from Oxford, and was smart, kind, thoughtful, and capable of surprising you. His life has followed a path made possible by those qualities-- like some of the others I have profiled, he chose a zig at the start of his career, then a zag towards innovation. I suppose that is part of what we were taught at YLS: to be confident and willing to take risks.

As he describes in the video above, Fred clerked for the Chief Judge of the 9th Circuit, and then went to work for the Civil Appellate division of the Department of Justice (where some of our classmates still work). But then he zigged.

First he took a Fulbright fellowship in the Philippines. After that, instead of just flying home over the Pacific like a normal person, he headed across central Asia-- a trip that began with "buying seven camels" to travel across the high deserts, then selling them  and continuing on by bicycle through the Himalayas into Pakistan. Geez, Fred! My life story will probably never include camel-buying.

After that, he worked for a firm, where he was unhappy. So then he zagged international finance, and set up new companies that have done well.

I really admire three things about Fred's career. First, he obviously was intentional in heading in the direction he did, quite literally. He followed his own path, not the one neatly laid out. Second, he clearly is a creator in the business sector, something that is just as important as other types of creators (and some would argue more important). Finally, the guy seems happy, doesn't he? Doing well and and doing good... it's a great combination.