Osler's Razor

I found this kind of mesmerizing (and familiar):

1) Johnson "prorogues" Parliament (Funkadelic remains unaffected)

As part of his efforts to get a no-deal Brexit, UK Prime Minister Boris Johnson asked the Queen to suspend (or as he called it, "prorogue") Parliament until October, which will limit the time that Parliament will have to come up with an alternative.

I'm pretty sure the Queen felt she had to agree, but hated doing it. Here is why:

A no-deal Brexit would be very bad for two parts of the United Kingdom: Northern Ireland and Scotland. For Northern Ireland, it would likely mean the re-institution of a hard border between it and the Republic of Ireland, which will be a dramatic change that very few people there want. For Scotland, the concomitant exclusion from the EU customs union will hurt the economy without providing any discernible benefit. This makes two things much more possible: the unification of Ireland, and the departure of Scotland from the UK. And for the Queen, both are very bad outcomes.

2) Trump tells staffers to seize land for the wall, and suggests that he will pardon them if they commit crimes while doing so

This is ugly--but right in my wheelhouse. According to the Washington Post, President Trump has directed officials to "aggressively seize private land" in order to build big new portions of a border wall, disregard environmental rules, and that "he will pardon them for any potential wrongdoing should they have to break laws to get the barrier built quickly."

There is a lot wrong here, of course. The abuse of eminent domain appears to be just another one of those things (like blowing up the federal deficit) that Republicans care deeply about until Trump does it. Plus, it seems pretty clear to me that Trump's offer (if it was fairly specific, which is unclear from the story) could constitute bribery.

The relevant federal bribery statute is  18 U.S.C. 201:

(b)Whoever—
Importantly, the statute does not require money be paid, but rather a thing of value-- and the immunity of a promised pardon is certainly a thing of value. I'm not sure that (b)(1)(A) would apply, since Trump can order subordinates to do things straight up, but I'm more certain that (b)(1)(C) would be the stronger charge. Of course, a different section of the same statute covers influencing testimony through bribery, and the same argument regarding bribery would apply to an offer of a pardon if someone gives false testimony.  This does not mean Trump would be indicted while in office-- that is very unlikely--but it could be a ground for impeachment.

I'm devoting Wednesdays to profiles of my law school classmates. This week I check in on Amy Adler, who is the Emily Kempin Professor of Law at NYU Law School.

Back in law school, Amy Adler was at the other end of the cool spectrum from me-- she had it together, and was one of those people who made a day there more interesting (in a good way-- I realize that could go either way). We had overlapping friend groups, and I went out of my way to overhear what she would say; it was always fascinating and worthwhile.

Like a lot of the others I have profiled here, Amy was double-Yale, so she knew her way around. She's from what must be an interesting family: her brother is potter, designer and artist Jonathon Adler.

After a clerkship and stint at a New York firm, Amy landed at NYU, writing and teaching about art law, feminism, and the First Amendment. She is a rare breed of academic writer, whose work is consistently readable, well-grounded, and interesting.  I think the first article of hers that I read, years ago, was Girls! Girls! Girls!: The Supreme Court Confronts the G-String. It made me want to add more of an edge to my own work, which of course made it better.

Out of a plethora of great quotes in an interview with Amy in Bomb Magazine, I found this one especially compelling:

It seems as if there’s some sort of magical fantasy of authenticity imbedded in the art market right now. There have been some fascinating cases. One case was about a Calder that seemed to be perfect, but was discovered to be a fake. A bunch of dealers saw it and at first they said, “It’s beautiful. It’s magnificent.” But as doubts arose, they went to Klaus Perls who was for a time the expert on Calder. Perls said, “No, it’s a perfect fake!” At that moment, the work went from being worth God knows what, to being unsalable. It’s interesting to consider, Why? If it looks the same, why is it worthless? Why is it no longer art? The value of an authentic work is based on some fantasy of the artist’s touch or presence in the object that’s still there, that we still yearn for, or that we monetize, I’m not sure which.

There are a lot of us out there teaching in law schools. But out of the whole lot of us, my bet is that Amy is among the few whose classes most fascinate students.  And that, like the work of so many of my other classmates, is good for the world.

Good haiku on fairs last week, but I have to reprint this classic from Christine:

October brings us
the NC State Fair, cooler
weather and fall days

NC State Ag school
makes the best milkshakes, bar none...
No butter sculptures

Culinary School
food truck always in'tresting
stuffed jalapenos

The Lions Club thinks
they sell the best Brunswick Stew
Horace calls them in...

But the truck serving
Chocolate dipped bacon is
the absolute best.

This week, I drove up to Pine County, which is between Minneapolis and Duluth. Pine County is the boyhood home of Baylor Law prof Larry Bates. It is also the home (since 1933) of the Sandstone Federal Correctional Institution, which was where I was headed.

I receive mail from prisoners all over the country. I answer most of it, and sometimes begin a continuing correspondence with a few prisoners. One of those has been Luke Keller, who is incarcerated at Sandstone. In a letter to him about something else, I off-handedly suggested that I would be happy to come up to the prison and discuss clemency. A few days later, I heard from prison officials that they thought this was a good idea. I booked the date.

Over the years, I have talked about clemency at Harvard, Yale, Penn, Stanford, the White House (seven times there!) and a lot of other places from Alaska to Atlanta. But never, until now, had I given a talk about clemency in a prison. And that is awful-- it really is the one place I should have been giving talks all along. Clemency is about people who are or have been incarcerated, after all-- and those are the people who have a real need for the information I have about how the system works, who gets fair consideration and when the window might open.

I have been going into prisons and jails for about 23 years now, for one reason or another, going back to my days as a prosecutor. Never before, though, had I gone into a prison to teach.

They capped attendance for my talk at 100, since that was all the room there was in the chapel. A lot of the people in the room were older men serving very long sentences, who have longer to go. Their behavior in prison, their movement towards rehabilitation, had been exceptional enough to earn them a spot in this low-security facility.

The hardest thing to tell them was this: clemency is a very long shot, and for some of them it is no shot at all. To get it, you have to genuinely accept responsibility for the crime you were convicted of, and it is important to have a life trajectory towards the good, something that is very hard to fake. There really is (unless you are on Fox News) no short cut or trick or chance occurrence that was going to save any of them; those things are almost exclusively reserved for the rich and famous.

I saw, too, for the first time the true cruelty of how clemency is being used. Men saw their only hope as being to somehow reach reality star Kim Kardashian, who successfully implored the president to release Alice Johnson. That, I told them sadly, is a sample size of one, held up against the 13,000+ pending petitions on which there seems to be no movement. Celebrities won't save them-- only a better system and the will within a president to do right will offer that chance (and even then, it will only be a chance). I know that I will keep trying to make that happen.

There were men that I knew, or knew of. Shon Hopwood's cellmate was there, and people I had corresponded with, and a few with kids who are students at my school. They all told me their stories. There was, too, Stephen Spears, whose case I had taken to the Supreme Court (where we prevailed after a series of setbacks). We had never met; my heart stopped when he introduced himself.  I was supposed to be there for an hour for the lecture, but it turned into two and a half hours pretty quickly.

I left with a sadness I can't shake. The Framers of the Constitution intended clemency to be a sharp, shiny tool in the president's hand, wielded with conscience and precision in the service of mercy. Instead, it has become a clumsy club clutched tightly by the Department of Justice and segment producers at Fox News. Something elegant and soulful has been made ugly and cloddish. It is a small part of the world, but an important one, and it is the one that I know.

There is much more to do.

Next to the Hockey Hair Team, this may be the most Minnesota thing in sports:

By now we are kind of used to headlines that sound like they are from the Onion, but this one is a doozy: Trump Scraps Trip to Denmark, as Greenland is Not for Sale.

It was kind of hard to tell if the Trump administration was joking or not about the whole Greenland thing-- after all, the President himself tweeted the above picture with the tagline "I promise not to do this to Greenland"--  but apparently they weren't.  Trump had been invited to visit by Denmark's queen, and a series of talks were scheduled for September 2 and 3. But... because the Danes wouldn't consider selling Greenland, Trump cancelled the trip.

The Prime Minister of Denmark, Mette Fredrickson, had the same confusion. “Greenland is not for sale,” she told a Danish newspaper this week. “Greenland is not Danish. Greenland belongs to Greenland. I strongly hope that this is not meant seriously.”

So... is this as weird as things will get?

Elizabeth Warren is fond of saying "I have a plan for that." She just came out with her criminal justice agenda, and her plan for clemency is exactly what Rachel Barkow and I laid out in a 2015 University of Chicago Law Review article. 

You can read the whole thing here-- and, to her credit, Warren embedded a link to the Univ. of Chicago article in the plan itself!

As I mentioned a little while ago, IPLawGuy came up to Osler Island this year. In that last post, I mentioned going down to Grand Marais to meet up with him. I did, and we went up to the island and had a great time. Then, I packed everything up, locked up the cabin and headed home.

A few days ago, I was watching ESPN4, and they were covering the Washington Nationals' "Bullpen Cart Appreciation Day" during the Nationals' game against the Padres. They scanned the crowd of 627 people (attendance is off this year for a variety of reasons), and I realized I didn't see IPLawGuy, who is a season ticket holder and rarely misses a game.

That's when it hit me... I had forgotten to bring him back from the island ten days before.

So, naturally, I raced back there, jumped in the boat, motored over to the island, and there he was, sitting on a rock trying to catch a fish to eat (see illustration).  He had managed to survive by building a crude lean-to out of sticks and a piece of plywood. Luckily, he still had a case of Boxer beer and a 64-pack of Velveeta slices he had brought. Also, it turned out, he had killed a bear, skinned it, eaten much of the meat, and fashioned a hat, a life preserver, a pair of fuzzy slippers, and underpants out of the pelt. IPLawGuy, after all, was an Eagle Scout, and I suppose that training comes in handy.

He seemed healthy, except for a long scar at the base of his neck and what looked like a tattoo he had given himself of the Episcopal shield.

And yes, I feel really bad about forgetting him! Luckily, he is now back at his law firm, safe and sound. I just hope someone asks about his new hat.

Wow! You guys kinda like California, I guess-- nice haiku!

We had this from Christine:

Why is it that so
many disaster movies
destroy San Fran?

And the Medievalist had some family history:

The Top of the Mark,
Drinking beer with Clark Gable,
Grandpa and Grandma.

IPLawGuy had a take I liked:

Dodgers, Giants, A's
Padres, Anaheim Angels
Five good baseball teams

But Kaya... she knows what she is talking about!:

Zip codes tell futures
Like the fault lines we ignore
At our own peril

Bernie Sanders is the latest candidate to expressly embrace the idea Rachel Barkow and I have promoting: in his criminal justice plan he pledges to:

• Revitalize the executive clemency process by creating an independent clemency board removed from the Department of Justice and placed in White House.

I'm a writer and a teacher. My life is defined by working with words. But sometimes words are a cage, or a clumsy wooden club.

There are things that are not well described by words, and there are ways that words twist and mold and change meaning. Words to describe joy, a good kiss, a bad fall, pain? Really? The English language is an 8-bit processor trying to depict an infinitely complicated creation of God. It fails, over and over, even in the most able hands.

There are times I have written about an experience--often here on the Razor-- and then gone back to re-read the post years later. The words are at best an invitation to the real memory, to the fully formed and subtle hued reality that I lived. But they are never fleshy enough to fill in the folds and curves of real lived life. There is always something left out, or made less important, or hidden behind a wall of verbiage.

And that is the problem with law, perhaps.

Law takes the endless complexities of human existence and tries to mash it into the poorly-defined and too-large holes that language allows. We are so clumsy in defining actions and thoughts--conspiracy, felony-murder, possession--and arrogantly defend these "bright lines" as somehow rational when they are not.

And theology, too. Words to describe the divine?

Better, sometimes, that we observe in silence and see the whole and turn to someone we love and sigh with contentment.

For a guy in Minnesota, I realize I really have a California thing going right now. Anyways, last night I went to see the new Tarantino movie, Once Upon a Time in Hollywood. I liked it a lot, though I'm not totally sure why.

There isn't much of a plot, though things do come together in the end. Tarantino meshes together historical narratives (the Manson Family and the Tate murders) with fictional characters, and it really works. It helps to know the story of the Manson Family before you go to the movie; the story seems to assume that the viewer has that basic knowledge.

If nothing else, Tarantino creates atmosphere--the sense of a place--better than anyone. And that's worth eight bucks (more in you live in, well, California).

I was fascinated by this New York Times article on Cordelia Scaife May, an idle heiress who turned into a rabid promoter of nativism, based on her belief that the United States was being "invaded" by immigrants who "breed like hamsters." She spent her half-billion dollar fortune on anti-immigration causes, and her foundation continues to fund the most rabid Republican immigration opponents, 14 years after the death.

She sounds like a dreadful person and the basis for a great argument to impose a wealth tax. I grew up around aimless people awash in money they didn't earn, and used that money to subsidize every kind of excess and stupidity.  It is not a good situation for them or for us. I can't think of one of these idlers whom I admire (though certainly I have met many people from wealthy families who have done great good-- some of whom I have profiled in preceding Wednesdays).

Cordelia Scaife May and others were successful in converting the Republican party into one that is thoroughly anti-immigrant, with a bitter hostility to both legal and illegal migrants. That wasn't true until recently-- but the transition seems to be complete.

Which leaves many people with a conundrum, I suspect. A good number of my friends who are Republicans have historically been admirers of immigrants (and even immigrants themselves). They rightly recognized the work ethic of immigrants, and the sacrifices they made for their families and their new home. If I were one of them, I would be very uncomfortable with the new views of their party.

Of course, no person of conscience is going to have principles and policy goals that align perfectly with their party of choice-- there are always compromises. But I wonder... will this be too much for some people?

On Wednesdays, I have been devoting the blog to profiling my remarkable law school classmates. They are a fascinating and surprising group!

Back in law school, Kelly Carlson was a warm and funny person, and seemed to get everything right away-- all of which came out through a quiet humility that was unusual for that time and place. I can't remember what it was that she said, exactly, but there was a moment that she made an observation that cracked me up for days. Which means she might have been the smartest of us all.

She came to Yale from Westminster, a small college-- 700 students-- in her hometown of Fenton, Missouri (a suburb of St. Louis).  She graduated as the valedictorian, and chose Yale over Harvard for law school.

After law school, she went to work as a lawyer for the State Department, continuing to follow her interest in international law (she had been the Editor-in-Chief of the Yale Journal of International Law). There, her work included issues related to uranium supplies, which seems pretty important to everyone.

Then, in 1993, something happened. On Christmas Day in 1993, her cousin Drew died in an apartment fire. The event shook her-- and the spiritual side of the loss played a role in her decision to leave law behind and go to divinity school, at the Graduate Theological Union in Berkeley, California.

She now serves as the Associate Rector at St. Peter's Episcopal Church in Ladue, Missouri, not far from where she grew up. It sounds like a beautiful place, a 150-year-old congregation in a leafy suburb. Reading about it made me want to go there. There is a wholeness and peace to Kelly's story that I really admire. I suspect, too, that what she learned in law school in some way continues to inform what she does-- as does every other stone on her path.

I love this photo. It was taken in 1940 by Kenneth Heilbron, backstage at the Ringling Bros. Barnum & Bailey circus (which went out of business two years ago after a 150-year run).

I'm not a sad clown, or generally sad, or a clown, but I really emphasize with this guy of late.

Thanks everyone!

So... Amy has definite ideas about what I should get:

Do you want cuteness?
Or do you want horsepower?
Mini Cooper's both!

While Andrew thinks I need to be more like Larry Bates (a lot of people do, of course):

Your old friend Larry
Would say to get a Beemer
Germans know their cars.

Gavin rests on (irrefutable) general principles:

Good cars get you there. 
Great cars move your body, soul. 
But it will cost ya!

Meanwhile, IPLawGuy offers a cautionary tale:

Plymouth, Mercury
Oldsmobile or Pontiac
Not any of these.

While I was away at Osler Island, the Waco Farmer made a very intriguing comment on Political Mayhem Thursday, and I think it is worth reprinting here:


I agree that not much problem-solving goes on in Washington these days. Of course, "these days" implies there might have been a golden age of problem-solving back there somewhere. Remember that time we solved the problem of the Great Depression. Remember when we defeated the Soviet Union in the Cold War. Remember when we created Social Security, Medicare, and passed ADA. Remember when we put a man on the moon (man on the moon).

All true but also somewhat misleading, I think. We created a system of national government back in the beginning that was intentionally hamstrung with lots of divisions of power: three so-called co-equal branches within the national government and then real questions of sovereignty between national power and state power. Those internecine institutional battles continue to rage.

For more than a hundred years dysfunctional Washington did not matter much because we did not ask our national government to do all that much--and, when we did, we generally paid the price for it (the Civil War is one example that springs to mind). One way of reading American history is that Congress has always equaled the keystone cops, but historically they just had a lot less responsibility. The presidency has always employed flawed and weak men (some more flawed and weaker than others--especially the ones in between GW, AJ, AL, TR, FDR, and RR). We just paid less attention. The Courts were a mess of human foibles and cloistered ideas--but that was okay because it could not do much damage most of the time (with a few famous and egregious exceptions that we all can enumerate).

By the turn of the century, Woodrow Wilson believed the Constitution had aged out. He advocated a more efficient national government with an administrative state peopled by experts and activists and a Congress that would defer to vigorous and wise presidential leadership. This worldview was not without its virtues--but it was also a bit Utopian. And Wilson's early version of sanguine Progressivism ran aground. Progressivism 2.0 and 3.0 scored great victories and dominated the next 100 years--but it never could quite overcome the c. 18 liberalism inherent in the founding document and controlling legal authority.

I am a nationalist (that is, I believe in an American national government). I am also a constitutionalist, an institutionalist, and a federalist. I believe in as much localism as practicable. I believe a healthcare solution for my family and my community will likely be found much closer to home than in the think tanks and halls of power in Washington. But I could be wrong. I agree we have big problems getting bigger every day. I would add the national debt to your list--like climate change it is not something that is NOT going to kill us tomorrow--but it is a looming crisis of unsustainable assumptions and policies.

I fear we ask too much of Washington and our politicians and our experts and our activists. I continue to believe we can stave off national disaster--but we will need to save ourselves first. And I think that probably means personal and local responsibility and personal and local solutions.

Having said so much and so little all in one long nearly incoherent rant, let me close with this: 

"We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature."

So, for the past ten days or so, I have been away from the news and the internet at remote Osler Island. It is always a shock to come back, so I'll need a few days to adjust.

One thing that is hard about re-adjusting is that you get ten days of news all at once. It can be a little overwhelming.

This time, of course, what I learned about was the shootings last weekend.

The familiarity of this is depressing. The inaction in response to these tragedies is reprehensible. The solutions are hard and probably partial (as I have discussed here before). Yet, we need to move toward solutions to those problems measured in lives lost.

We have an epidemic of terrorism that must be addressed.

On Wednesdays here at the Razor, I am profiling my classmates from law school. For a recap of those profiled so far, go back to Tuesday of last week-- they are turning out to be a fascinating bunch. 

Liz Barrett-Brown came to Yale Law from Brown, and had already done substantial work towards her continuing passion, the environment. Even before law school, she had worked for the National Resources Defense Council and Senator Frank Lautenberg on things like toxic chemicals.

I remember her as someone I admired from the first moment: unlike many of us (including me) she had already found what animates her and it shone. (I also seem to remember her really kicking my ass in a game of squash, too).

Her life since law school has been a fulfillment of the promise I'm sure our profs saw in her. She went back to the NRDC as a lawyer, and has worked on global climate treaties addressing climate change, biodiversity and ozone depletion. She has also played a role in the fight against the Keystone XL pipeline and the expansion of tar sands oil extraction in Canada.

More recently, she and her family took over a 13th century estate on the Spanish island of  Majorca, where they raise organic olives and sheep (she is still a consultant for the NDRC, too). The estate, Pedruxella Gran, sounds like quite a place. You can volunteer to work there, actually, which seems like a pretty good deal if you get to enjoy all the area offers. And I imagine it might be worth the trip just to talk to Liz and her family.

It's amazing to uncover these stories, one by one. If nothing else, we were not a boring bunch.

If we know one thing about Garfield, it's this: he hates Mondays.

That's always confused me. After all, he's a housecat-- one day is exactly the same as the others, right? Wander around, eat lasagne, take a nap, etc. It's not like he has a job or any responsibilities.

Anyways, if you want a deeply existential view of the world I recommend Garfield Minus Garfield, which tells the story of Jon, a man with not much going on other that to wonder about things great and small.

Over the course of my career, I have been to prisons many times. As a prosecutor, I went there to take proffers on cases (that's when a prosecutor and agent meet with someone to get information that may be helpful in the prosecution of others, usually given in the hopes of a break on the cooperator's sentence). More recently, I have been to a number of federal prisons to meet my pro bono clients in clemency and other kinds of cases.

The experience is always striking. It is rare that we enter environments quite that controlled, and it takes some getting used to, even as a visitor. The gates slamming and the control room process is part of it, but only a small part. I'm often taken by how quiet it can be-- that is, when it is not very, very loud.

Over the years, I've given talks about clemency all over the place: at many universities, to local groups, at the White House (twice), and in the media. Never, though, have I given a talk to a group about clemency in a prison.

That is about to change. On the 22nd, I am going to do exactly that at a federal prison here in Minnesota. I'm told to expect about 100 people to be there. I'm excited.

In Matthew 25, when Jesus taught "when you visit those in prison, you visit me," if feels like that was directed straight at me. The directive of Christ completely transforms the project, of course: it makes it more real, and more important.

I can't wait to see how this goes.

Last week, two kids in Edina pulled a gigantic sturgeon out of the little creek by my house-- in fact, they were at a bridge just a few blocks away.  They were tubing, spotted the 6-foot behemoth, and pulled it out with a rope around its tail. That's a novel fishing technique! They released it after taking some pictures.

Why there is a giant sturgeon in Minnehaha Creek is an interesting question. According to the Star-Tribune, the fish is probably about 70 years old, which is not particularly old for a sturgeon.

Peut-être avez-vous lu à quel point il fait chaud ici en France cet été! Il a été bien plus de quarante degrés certains jours (qui est en degrés normaux, pas le système inventé fou que vous utilisez).

L'autre jour, mon oncle est allé à la boulangerie et à son retour, il avait brûlé sa baguette. Maintenant, ça fait mal de pisser, dit-il.

As many of you know, I like pie.

Once, I made a pie myself, and ate the whole thing. I stayed up all night.

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

Highest and best use
Of fruit is in a nice pie
Beauty you can eat.

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

It's mostly bluster in DC these days-- very little in terms of problem-solving by government seems to be occurring.

Whether you are ok with that depends on your view of government, of course. To libertarians, an inoperative government is not such a bad thing. To those who look to government to address real-life problems like climate change or health care, though, the lack of any real action is problematic.

As I've said before, this administration appears to view governing as a reality show-- the goal is primarily to get a lot of time on TV, control the agenda, and riff off of that. Very little of it has to do with actual policy, though.

Meanwhile, in the Democratic debates we hear mostly about policy. Is that something people will actually pay attention to?