Osler's Razor

Way back in March (Remember? That month where the first half we were all carefree, and then the second half we were living in a dystopian novel?) I wrote a piece in the Minnesota Star-Tribune urging the state to thin its prison population to prevent deaths from COVID. 

It kind of worked, it seemed. After some false starts, the Department of Corrections set up a system to grant conditional medical releases to people who were most at risk-- the elderly and those with clear risk factors. I even worked with other profs to set up a network of students to answer questions and help people prepare their petitions for release.  That project ended up working with about 2,000 prisoners (out of a total prison population of about 8,000). We hoped to avoid the death that had come to so many other prisons in the country to people who had no ability to space out or protect themselves.

But... the state slow-walked it. Then they were overly cautious about releasing people. I was alarmed earlier in the month to find out that less than ten people had been released. It was a recipe for disaster, for death, and I told them that. Still, not much happened. They worried about who should be eligible, who was sick enough, who might object. They didn't act.

Predictably, death came.  Two have died at the Faribault prison. One of them, Leroy Wallace Bergstrom, is pictured above. He was 71.

There is a deep sadness that goes with this kind of failure as an advocate. I knew what needed to happen, I knew it was urgent, and still I failed to convince those in power to act. And that failure, now, is measured in human lives.

Jill Scoggins does! Here was her haiku:

Spelled boudin, pronounced
boo – dan’. Smoked Cajun sausage
that’s the stuff of dreams.

And the Medievalist actually had a recipe:

Indirect grilling,
Salmon and honey, parsley,
Sweet smoky flavor.

So, after watching this video-- including everything going on in the background starting at about two minutes in-- I have to believe it is the inspiration for Kenan Thompson's SNL skit "What Up With That." I mean, really: there is a woman walking a goat, a girl ballerina, Uncle Sam on stilts, AND both Fab Five Freddy and Jean-Michel Basquiat appear in person.

Here is the imitator:

We last wrote haiku about grilling seven years ago, so it's time to do it again! Here, I will go first:

All about timing
Oh, and heat, and seasoning
And good condiments.

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

I'm devoting Wednesdays to profiling my classmates in the Yale Law Class of 1990.

Tanya Hernandez came to Yale Law from Brown, where she earned her undergrad degree in sociology (which, I have learned as a teacher, is a particularly good preparation for law school, especially at a school where you have to do a lot of analytical writing).  Her published note about bias crimes for the law journal was excellent-- I remember reading it when it came out, and having it make a real impression on me. You can read it here.  She also served as the Note Editor for the Journal.

After law school, she clerked in the US District Court in Puerto Rico for two years, and then began three years of public interest litigation in New York. After that, she began her illustrious academic career at St. John's. She now serves as the Archibald R. Murray Professor of Law at Fordham, and has established herself as a leading scholar of Comparative Race Law. Her scholarly production has been both pretty remarkable and impactful-- her field has become more important in part because she worked to have it matter (as it should).  If you have a while, you can see her full CV here.

Her most recent book is Multiracials and Civil Rights: Mixed-Race Stories of Discrimination, which you can see here. 

Among the members of our class making the world better in an active way, Prof. Hernandez is right up there with the best.

On a college trip with my parents, we drove down Monument Avenue in Richmond. There they were: Robert E. Lee, J.E.B. Stuart, Stonewall Jackson... I remember looking for Mussolini and Hitler. I obviously was new to the South.

Four years in Williamsburg and ten years in Waco, though, did not change my mind about confederate monuments. They celebrate people who fought to preserve slavery, and I found that indefensible. It is important to remember what is being depicted when we are talking about monuments of confederate leaders and soldiers: They are men who are memorialized because they fought to preserve the institution of slavery in a war against the United States, a war which they started.

Over and over, people told me that confederate monuments were not about slavery-- that they were really about "heritage" and "preserving history." Hmmm... these Bible-believers would, I'm sure, agree that Satan is an important part of spiritual history, but they would probably not put a triumphant statue of Satan up in their church.

It is true that the soldiers were "a part of history." The problem is that they are people who fought for something that is thoroughly rejected by American society, which is the enslavement of human beings because of their race. We know that this was their reason for seceding and fighting a war because they said so at the time. The argument that it was about "states rights" is a smokescreen-- the "right" that those states wanted was the continued ability to own other human beings.

To be clear, I'm not talking here about people who owned slaves (like Washington or Jefferson) or were otherwise oppressive of others (that is a different, important discussion)-- I am talking about monuments celebrating confederate leaders and soldiers. It is inconsistent with our values as a nation-- and the professed values of the states where they stand, all of which claim to honor residents of all races-- to allow these to stand.

Take them down.

If you read just one poem this week, make it Jill Scoggins's haiku:

“What’s Juneteenth, Moma?”
“Slaves fine'ly learned they’d been freed.”
“Who kept it from them?”

Silence. A long pause. 
Moma was thinking, thinking … then,
“White people. Like us.”

Meanwhile MKS said hers was a precurser to Christine's, so here it is:

The war was over
For two more years they waited. 
Emancipation.

And here is Christine's:

Juneteenth, not much changed
one hundred and fifty five
years later, waiting...

We had this from the Medievalist:

Juneteenth just shows us
How far we still have to go,
Slavery is bad.

And an entry from my dad! (quoting Janis Joplin, a Texan):

Freedom is just an-
other word for nothing left to 
lose Janis Joplin 

Free to stand up this 
Juneteenth, for many there is still
nothing left to lose

And one I read over several times, from Robert Johnson, a story picture:

A black landowner,
named Salls, would visit Mema
and Papa often.

Mema always had
coffee and coffee cake there,
for him to enjoy.

It sounds like things in Tulsa did not go the way President Trump hoped. The arena was one-third empty (which, on the plus side, lowered the COVID risk) and the overflow area outside the arena--pictured above-- was pretty much vacant.

Randy Potts posted something on Twitter that I thought was really insightful and deeply sad:

"Seeing a new connec between Trump and my grandfather, Oral Roberts: Oral didn’t have friends. Zero. Zilch. His “friends” were the crowd; his social moments happened on stage. He loved his audience *as an audience.* Seeing that with DJT tonight, too. He’s talking to friends."

There is a lot there, in that short statement. At the core, though, is the emptiness of measuring your success by adulation.

I sometimes end a class with a little soliloquy about this: That when you do the best thing in your life, something that really makes things better, they probably won't have a parade for you. The truth is that the brave, good actions are often unpopular. They usually threaten to upset a status quo, change the lives of the rich or powerful, and that is something that the rich and powerful do not like. Think about how many of our heroes were actually killed for the courageous things they did (starting, but not ending, with Jesus).

The roar of approval can lead you to some bad choices. Following adulation is not the same as following your principles or your God. Humiliation and condemnation are more often the rewards for making hard, good choices.

Parenting is like that, too. Sometimes the most important things a parent does isn't the most popular with the kid. I know that was true of my dad- he wasn't someone to be mean or controlling to us three kids, but he was certain to do or teach the right thing even when it wasn't really what we wanted to hear.

It's probably not an accident that all three of us kids have gone on to be adults whose work has been focused not on making money but on making other people's lives better in some direct way.

One thing that fascinates me about my dad is that he is the person who takes the picture, not the one who is featured (as you can see on his blog here). To be good at that, you have to be kind of a visual listener. That takes a certain kind of insistent humility, where you make decisions while not getting the attention the subject of the photo or painting does. I think that has deeply influenced us all.

Aren't we lucky kids?

I'm probably not alone in thinking that President Trump's rally in Tulsa is going to be, um, newsworthy. There is so much that can go wrong, after all. Here's a short list:

1) It turns into a COVID super-spreader event. We wouldn't know about this, of course, for a couple weeks after the infections had developed.

2) Some kind of conflict between protestors and Trump supporters. The tensions seems to be quite high there right now.

3)  Trump may say something so epically offensive--even for him--that comes out of this super-heated and racial charged situation.

Or, I suppose, all three. Yikes.

If you want to keep track of things going on in Tulsa, I would recommend the Twitter feed of my friend Randy Roberts Potts, a native of the place who is writing about events there this weekend.

My Dean's brother Phil put together a very worthwhile (and short) history lesson on race in America:



It's striking how few of my students grasp this broader scope of history and how it impacts things like criminal law today. After all, there were 250 years of slavery here, followed by 100 years of Jim Crow, followed by 50 years of pretending things were all better. History matters-- and it also matters what is happening right now.

I've been talking to a lot of people-- family, friends, people who looked up my phone number, the media-- about police reforms. I'm thrilled people are talking about it, because it is a really important subject which lies at the core of some of the discussions we are having now about race.

I do find that people are having some confusion over some of the basics, so let's cover some of those today.

Q: Does limited immunity protect police officers from being charged when they kill someone?

A: No. Limited immunity is an important concept that need reform, but it is limited to civil law. In short, limited immunity gives individual police officers some protection from being sued for damages by people they have hurt in some way. It affects the way citizens can make tort claims.

Q:  But don't police officers have permission to shoot people in some situations?

A: Many jurisdictions do give police officers an expanded ability to legally use lethal force, usually in situations where the officer acts in self-defense, or someone is escaping custody and may hurt others.  For example, here is the provisions of MN 609.066:

Subd. 2.Use of deadly force.

However, most of the time that police officers are not charged or are acquitted of killing someone, it is under the self-defense provision listed first in the statute above-- and that is a defense that is available to anyone who kills to protect themselves or others. That was the situation in the Jamar Clark and Philando Castile cases (though probably not in the George Floyd case).

Q: Why do police officers get away with killing people so often, then?

A: Like many things in the law, the answer lies not in the statute so much as in the use of discretion by actors within the system-- for example, the discretion of a prosecutor or grand jury not to charge an officer, or the discretion of a jury to acquit. All of those actors are inclined to believe a police officer when they say they were exercising self-defense-- for example, by claiming that the victim was trying to grab the officer's gun.  That, of course, may change as more people see videos that show police officers using lethal force in situations where it is not justified as self-defense.

There were some great haiku last week. You should read them all here.

However, there was one truly outstanding entry.

You may remember that my haiku was this:

I am so confused
You only ate the one plant!
What a dumb bunny.

And here was my former student Gavin's response:

Dear Sir, I’m not dumb.
I take only what I need.
Your kind? Not so much.

That's pretty awesome.

A few weeks ago I pondered an old tree stump next to my house. It was flush with the ground and slightly rotted.

Trying to make something of it, I got an axe and chopped seven holes in it, put in some potting soil and planted some red and white geraniums. The took right away and started to thrive. But, for some reason, a bunny ate one of them. Just the flowers! [It was not the bunny pictured here- my sister drew that one]

Wildlife comes in all kinds of shapes this time of year. Let's haiku about them this week. Here, I will go first:

I am so confused
You only ate the one plant!
What a dumb bunny.

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

I would like to use this opportunity to share this drawing of adorable pigs by my sister, Kathy Osler. Because it is awesome.

You can see a bunch of her drawings here.

My Sunday piece in the Waco paper did not stand alone. That issue also featured another op-ed with a very very very different viewpoint,  titled Looters, Vandals Block Path to a Better America. Here is the colorful beginning:

In short, the piece first conflates peaceful protesters with rioters (because his mom said "birds of a feather flock together"), denies that they have any objective other than selfish destruction, and then proceeds to urge that they all be put down by the military. The coup de grace, after urging this violent response to lawfully assembly, is this closing line:

"A presidential election beckons in November, so quit destroying our country and vote — and no matter who wins, accept the results and be glad you live in a democratic republic brimming with rights."

I'm often surprised how often those who urge a limitation on freedom end with some kind of celebration of freedom. But... there you go.

Who can haiku? Anyone who wants! And this week we got IPLawGuy commenting on his car:

Yes, 280z 
Wish i had one, and Could
Drive on a highway.

Christine stuck to bread:

Measure, mix, take great
comfort in kneading a fine
silky dough, pliant

cover, hope, rising
punch down, knead, punch down again
shape, score, bake, smell, eat.

As did TRW Joe:

Bread, glorious bread,
Don’t we all want to eat it?
Yes! Because it’s good!

Steve chimed in (he inspired this topic):

Funky smell. Sticky.
Wrestling with a sullen dough.
The taste is worth it.

And, fortunately, the Medievalist (with a clever play on the classic haiku line "refrigerator":

Refrigerator,
Home of Hal the starter dough,
Great cinnamon rolls!

If you are interested, I had a piece in Waco's paper today about the events in Minneapolis-- and the too-often-hidden history of racism behind it. You can read that here.

Also, I gave the sermon today at First Covenant Church, Minneapolis, and you can watch that here.

I was lucky to grow up in a very interesting house. Not only were my parents both good and interesting, so were many of their friends. Watching them all together was like a little window into the future, a glimpse at what adulthood would be like. And their friend Dennis Plansker made adulthood look great. He was funny, smart, and kind, and wildly creative-- he was in the advertising business with my dad and some of their other friends, and were constantly creating art. It was fascinating.

When we lived on Harvard Road on the east side of the City of Detroit, the Planskers were our neighbors down the block. My first friend was Jeff Plansker, who has some of the best qualities of his father.

Mr. Plansker passed away yesterday, having contracted COVID-19. I'm sad for all who knew him, and especially the remarkable family he and his wife Geri created. As a father, a teacher, a friend, and as a guy this kid watched with awe, he made a lot of peoples' lives better, and that's a legacy any of us would want.

Yeah, there is a lot going on out there, huh? And I will get to that tomorrow. But for today, I am going to revert to profiling my classmates in the Yale Law Class of 1990.

David Flattum was part of a small coterie of Californians who came East to be a part of the Yale Law class of 1990. He had just graduated from USC.

After law school, he went to work for Latham and Watkins, where he made partner. In 2001, he jumped over to Allianz Asset Management, where he was a Managing Director, COO, and General Counsel (which seems like a lot of jobs to have!).  Currently, he works for PIMCO, a ginormous asset management firm, as Managing Director and Global General Counsel.  It's an impressive career.

Boy, I am not doing justice to this guy's accomplishments. So, yeah, I'm not feeling it this week. Sorry, David Flattum. It's not your fault. I'm just feeling kind of overwhelmed by the failure of our society to adequately address racism, and unless I am missing something there really is no internet-obvious nexus between that and your career. And, frankly, not enough of a nexus between solving that problem and my own career. We left law school with the potential to do so much-- and in fact, as this series has shown, we have done a lot. But much of it was directed towards our own financial security or political ambitions or personal interests, rather than the yawning abyss of need in our country. I look at us, and see a lot of people who are financially comfortable, secure, happy in most senses-- and I am one of those people. But I wish I could look at the broad scope of our work, including my own, and say that we made any kind of dent in the mountain of legal problems in our country that were made very plain to us while we were in school. A few of us, like Cornell William Brooks, fought hard and well on the national stage (and continues to do so). Others made quieter but also important efforts. But I wish we who received all these advantages, as a whole, had led the way to a place where racial prejudice didn't drive us to the precipice we have arrived at. We always had a voice, and too often did not use it for what matters most.

A few years ago, I said that the true test of President Trump will be when he faces a crisis. My worry then was that the talent needed in those dark moments is creating unity and division and... well, that's not really his skill set.

Now we have not one but two crises-- COVID and the George Floyd killing. And, as I feared, there seems to be little effort from our national leader to bring unity as we face very stark challenges. Of course, this is an almost unbelievable set of unfortunate circumstances, but that only raises the stakes.

Now is when the president needs to stop worrying about re-election and instead worry about the success of our nation. Real leadership takes sacrifice, and part of that sacrifice has always been a willingness to go to one's political enemies in times of crisis and present a united front. Ronald Reagan did that-- it was a part of his legacy that ensured he would be well-remembered.

The events last night, though, are a chapter that suggests that division and tumult are not only our present, but our future.

This haiku from my dad:

1935
until a few years ago
didn’t have a clue

Then friends reached
out to me, only later
I saw them as black

That was just a start
I still can't put my head 
around their ordeal

I have felt some pain
It goes away but prejudice 
inflicts pain every day, 

And Bob Darden sent this:

Hard time, oh hard times
They say hard times never last,
It just seems that way.