Osler's Razor

 For 2020, people had some pretty good Thanksgiving meals! 

Gavin whipped up some new things:

Desiree, predictably, avoided the turkey:

Brocolli, onions,
mozzarella, anchovies.
Paisans save the day!

As did, in her own way, Christine:

Unconventional
Leg of Lamb with cranberry;
a French Apple Cake.

And the Medievalist, too!:

A rack of lamb ribs,
A salad, shrimp and apples,
Mince meat pie dessert.

# posted by Mark Osler @ 1:00 AM 0 comments

 In today's Star Tribune, I explain how Joe Biden is like America's bass player. You can read that here.

There's a bass-forward sound here:

# posted by Mark Osler @ 1:00 AM 0 comments

Thanksgiving is my favorite holiday. I love that it is about a simple and good idea: gratitude. It's not particularly nationalistic or commercialized. It has only the simplest and most ancient of traditions: feasting. What's not to love?

I'm grateful for all of you. It is a pleasure and an honor to reach out into the world every day and know that what I write is read, by people I love and people I do not know. I have posted every day for the last 14 years, and it has brought me great joy. 

Right now I have a piece up at The Atlantic on the spiritual elements of clemency. They connected it to the Flynn pardon, which is ok-- but the headline (which I don't get to write) doesn't really fit the piece. Still, it lays out the heart of what I think about clemency. You can read that here, and I hope that you will. 

# posted by Mark Osler @ 1:00 AM 1 comments

Phil Steger was a great guy to have in class-- the kind with good answers and even better questions-- but perhaps even better outside of class, as a part of our community. He came to St. Thomas after getting a theology degree from St. Johns, a beautiful little school about an hour northwest of here where he was an All-American swimmer. Then, for thirteen years before coming to law school he... did a lot of things. Here is how his distillery's (er, more on that later) website describes it: "[Phil] lived in a monastery, served the homeless and desperate migrant workers, smuggled medical supplies into war zones, and helped preserve ancient manuscripts in some of the world’s most dangerous places."

And then he came to law school. And all of that may have had something to do with why it was a lot of fun to have him in class.

When we first did the Trial of Jesus, I asked him to play the role of Peter, who was by far the most important witness (after all, he pretty much saw everything). I was surprised when he showed up in a hoodie, but he pointed out that he was a fisherman, so that's what he was wearing. Then, on the stand, he was fantastic-- he knew the Gospels backwards and forwards, and revealed this authentic reverence for Jesus, who he referred to as the "Teacher" or the "Master." 

After law school, Phil clerked for Diana Murphy on the 8th Circuit, then worked for a big firm here, Dorsey & Whitney. 

But he also founded the Brother Justus Whiskey Company, a local distiller where they "make whiskey the Benedictine Way." And there stuff is really good.

Or at least it is, to drink, when what they are making is whiskey. When the pandemic hit, Phil and his crew switched over to making hand sanitizer. Which is exactly what I would expect. 

And you thought my Yale Law classmates were interesting?

# posted by Mark Osler @ 1:00 AM 0 comments

 No, "Grosse Pointe Antifa" is not a traditional haiku subject (usually they are about nature). But it brought some good work to the fore!

Christine, from Grosse Pointe, was first and best (she is referring to the "Phyllis Osler Singers," who are no longer affiliated with Phyllis Osler):

Dressed in their finest
from Brooks Brothers and Hickey's;
Martini in hand

Grosse Pointe elite
Loot the local village stores
with Amex in hand

While sidewalk strolling
Osler's - Grosse Pointe Antifa
sing silly carols.

We also heard from IPLawGuy, who has been to Grosse Pointe, but mostly was thinking about the movie:

John Cusack knew it!
Went back to stop "The Grocer"
Antifa Ackroyd.

My dad (who was, I think, referred to as "Commander Spike" in an unrelated, anonymous poem) gave us this clever twist:

Planning to overturn
some pancakes.. perfect cover
green pants and pink shirt.

The Medievalist came in with this one:

Secret antifa,
Destroying Amerika,
Vote Michigan.

And an anonymous Grosse Pointer brought us this:

Lilly Pulitzer
THE Country Club of Detroit
Grosse Pointe Antifa.

# posted by Mark Osler @ 1:00 AM 0 comments

 I often find myself confronted with people who want to use the Bible as a tool to promote a harsh, retributive view of the world: one which allows Christians. to focus on condemning others, on protecting their own "liberty" rather than serving others, and to defend their politics.

These Christians are so different than me; they seem to read the same book to come to opposite conclusions. How can that be?

I think the answer is that we read this one book in two very different ways. I read it as a story that has a beginning, a middle, and an end (which we are living out). It also has a protagonist, Jesus, and remarkable and beautiful story arcs that carry throughout the entire book. There are directive, normative lessons in that story (including the direct teachings of Jesus) that apply very much to our modern lives. One part must be read in the context of the others. Chapter two does not make sense when read on its own, and reading one paragraph of chapter two alone tells you almost nothing.

Some people, though, read it as a quote book-- you can just lift out any passage at random and then hold it up to modern life, without context or a relationship to the story as a whole. Reading it that way, you can defend almost anything. 

Not helping are people who describe the Bible as an "instruction book." Especially when we tell kids this, raising the expectation that if you just look on p. 12, you will see how Tab F is supposed to fit into Slot B. (Actually, looking for the answer to that would probably lead kids to Song of Solomon, which would change the adult's tune about the importance of context!).

# posted by Mark Osler @ 1:00 AM 0 comments

 I can't believe this was created in 2005:

# posted by Mark Osler @ 1:30 AM 0 comments

People remember and identified with their small group professors. Mine was Drew Days III, who passed away on November 15. He was a remarkable teacher, a good man, and a profound influence on me and many many others.

He graduated from Hamilton College in upstate New York, where he was a beloved alum. (Kind of like Craig Anderson at Colgate, which, confusingly, is in Hamilton, New York).  He attended Yale for law School, graduating in 1966. He then joined the Peace Corps and served in Honduras for two years before returning to the US and work as a lawyer for the NAACP's Legal Defense Fund. His principal work was in school desegregation, including the successful desegregation of the Tampa schools he had attended. He then headed up the Civil Rights Division in the DOJ during the Carter administration before starting his remarkable teaching career at Yale in 1981. I learned the basics of law from a civil rights pioneer.

He took a detour from teaching after I was his student-- President Clinton chose him as Solicitor General, the government's top advocate in the Supreme Court, and a job held by Thurgood Marshall, Elena Kagan, and others. 

Then he came back to Yale to influence the lives of hundreds more. All along, he was a singer--a tenor in the Yale Russian Chorus-- and involved in some of the more difficult episodes both locally and nationally. 

I know this for certain: he was kind. He was kind to me, and to many others I knew, at a place and time that was not always that way. 

And that example may have been the most profound for the many of us who teach.

# posted by Mark Osler @ 1:00 AM 1 comments

It was hard to miss Gordon Davenport at Baylor Law-- he is a big guy, and pretty unforgettable all around. He came to Baylor from undergrad at UT-Austin, where he was a part of the famed Trial Advocacy program there. He had--and has-- a particularly good skill set for trial work, thoughtful, thorough, and able to describe complicated things clearly. It was clear from the start that he was going to do great things, and he has.

During school, he was on a trial ad team I coached, and then after school he helped me coach others. He was able to do so because he was clerking with Walter Smith, the federal judge in town. He's a person you can count on, and I have.

After clerking, Gordon took a job as a federal prosecutor in Tucson. I urged him to do that, because I think it is imperative that people of compassion and good judgment take on that role, and Gordon was exactly that. He has thrived, and now is a leader there in taking on public corruption cases. Abuse of public authority is especially pernicious close to the border, where abuses can be hidden and especially dangerous. He's brave that way, and I'm proud of him. Since my friend and colleague Hank Shea spends much of the year in Tucson, I get to see Gordon fairly regularly-- and I'm always happy to see him. 

Here's why: teaching people like Gordon, and seeing what he does, makes me feel like I am in the right business.

# posted by Mark Osler @ 1:00 AM 0 comments

 Wow! What a lot of haiku! And so good.. thank you all.

This is from my Mom (I recognize her reading list, though she was "anonymous"):

A ray of hope in 
Robert Putnam’s “The Upswing”
A new day may dawn

Sam Pepy’s diaries
Tell of plague, war, London fire.
Hard times are not new.

David Best has been reading deeply:

a poetic friend
capturing pain and heartbreak
in the written word

beautiful honest
she writes from experience
teaching others well.

Not surprisingly, so has Megan Willome:

California goes dry
worst case scenarios come
but teens conquer all.

("Dry" by Neal Shusterman and Jarrod Shusterman, a YA thriller)

Desiree is keeping up (and knows something about being a courageous mom, I suspect):

Small girl all alone.
Courageous mom right behind.
Ruby Bridges' tale.

And I might follow the Waco Farmer's lead:

John Wayne: The Life and 
Legend by Scott Eyman. Truth.
Goodness and Beauty.

We had this from Gentlemen Prefer Gamera:

Martin Amis writes
autobiographical
novel about loss.

And IPLawGuy chimed in:

Self help books, again
Hope to understand daughter
and maybe my wife.

As did Christine (such variety!):

Some Michael Cohen,
Poems by Alison Swan,
and fav John Grisham.

But my dad best captured my own sentiments:

Currently I am 
reading wonderful haikus
in Osler's Razor.

# posted by Mark Osler @ 1:00 AM 0 comments

 I had a great time this week talking to Mike Pesca for Slate's podcast, The Gist. Like a lot of people these days, he wanted to talk about how Trump might use clemency.  You can hear it right here!

# posted by Mark Osler @ 1:00 AM 0 comments

Yesterday, President-elect Biden chose Ron Klain to be his chief of staff. It may not seem significant in the way that a cabinet position might be viewed, but to those who know the White House, it is seen as a key role-- at least in the right hands. Though it is not defined by law, the position has developed into a particular kind of power center over the past 40 years.

The chief of staff basically runs air traffic control, deciding who gets access to the president and what roles senior officials take on. Though there are ministerial tasks, the job also involves protecting the president.

Most two-term presidents end up having several chiefs of staff (George W. Bush was unusual in having just two), since the average tenure is just 18 months. It is a high-burnout position, as you might imagine. Obama had five, and in just one term Donald Trump has run through four (Reince Priebus, John Kelly, Mick Mulvaney, and Mark Meadows).

Klain seems well-positioned for the job. He's a lawyer, and a graduate of Harvard Law School who clerked for one of the more interesting Supreme Court Justices, Byron "Whizzer" White. He first worked for Biden when the President-Elect was a senator, in 1989. He has already done two stints as chief of staff to two vice-presidents, Al Gore and Biden. 

He has also been in the middle of two prior crises that seem to give him some very relevant experience. First, he headed up the Gore campaign's efforts in the Florida recount in 2000. Second, under Obama he was the "Ebola Czar" in what was an effective effort to prevent a pandemic. 

This should be a hopeful time. And competence in key positions should be part of what gives us hope.

# posted by Mark Osler @ 1:00 AM 1 comments

Charles Brown was one of the more memorable people in our class. I remember sitting directly behind him during the first week of class and thinking "that guy sure has a big head." But, that was pretty much true of all of us at one time or another.

He came to Yale Law after earning a bachelor's degree from Brown University, followed by a master's degree in political science at Princeton. At law school, he was notable for a certain quirkiness and his distinctive sartorial style; he was also one of the few students with a pet. He had a unique and somewhat depressing perspective on the law. His Law Journal note, "Good Grief, 7th Circuit: A Reflection on Rule-Shifting and Power Dynamics in Cost Apportionment Under ERISA" was singular in its dark and hopeless tone.

After law school, he clerked for Hon. Mel Dickson of the 2nd Circuit, and then worked in the Clinton administration in the Department of Labor. After that, he became a partner at Winston & Coie in New York, focusing on labor law and representing large employers. His clients have included Wal-Mart, General Motors, and several food companies. In 2015 and 2018 he was named a "Super Lawyer" in the field of labor law.  He also serves on the governing board of Friends of LaGuardia, an organization which donates money to struggling airlines serving New York and environs. 

Unfortunately, his unpopularity with employees of his clients led to frequent attacks and a profoundly unflattering Broadway play (one of three classmates to have been the subject of Broadway or off-Broadway plays):

# posted by Mark Osler @ 1:00 AM 2 comments

You all did a great job with a weird subject. It appears I was not the only one who has been losing sleep.

Gavin had the best all time reason for being up in the middle of the night! (and a great poem):

3 am. She’s up
I feed her. She grasps my thumb. 
Smile, our blue eyes lock. 

The Medievalist was up at 3 too:

Three a.m., oh my!
I am not at all sleepy,
Bad insomnia!

IPLawGuy was also up at three:

 3 AM, my time

To cruise the empty back streets

And blast Manilow.

Christine made it an hour later:

Out cold around 9
Then wide awake around 4
Disruptive sleep.

We heard from my dad:

One two three AM 
Four five six seven o'clock
Now daylight streams in.

Desiree has identified the source, at least:

Sound asleep and then
Snore, snore, snore. Poke the culprit.
Try to sleep again.

DDR has, too:

And Kitty knows wha the problem is, too (along with a pretty good solution)!:

Hot flashes at 1
Bathroom to pee at 4:10
I miss sleeping in

The election is past
Counting the votes continues
Peace and love for all

# posted by Mark Osler @ 1:00 AM 0 comments

No matter who you supported in the election, we are going to enter a new era this next January together. The transition from Obama to Trump was abrupt and jarring. This transition will likely be less so. 

As I've said before, it is important to keep politics in perspective. The truth is, almost always the choices we make in our daily lives impact us much more than the person who holds any political office. Whether we exercise is more important than who is the Senator from our state. Whether or not we forgive those who hurt us is going to mean more than who the President is. Our ability to focus and do well at our jobs is going to make a bigger difference in our lives than who the mayor is.

I voted for Joe Biden and am glad he won, but I don't imagine that his being president is going to change my life in any dramatic way. We are responsible for our own fulfillment. 

After four years of President Trump, I fear that we have taken to viewing politics as a form of entertainment more than anything. We elected a reality show star, and suddenly we were all in a reality show!  But politics has to be something other than entertainment.

And so does faith. This administration has been a kind of mega-church with a charismatic pastor and not much else; quite a show, but not authentic. 

# posted by Mark Osler @ 1:00 AM 2 comments

As the election dragged on, a lot of people I know were literally losing sleep. 

It happens to all of us sometimes, for a lot of reasons (or sometimes, for seemingly no reason at all). We do different things in those moments-- some people wander the house, others lie in bed, some people play keno on line-- but it is frustrating for everyone. 

But... also very human. So let's haiku about that this week. Here, I will go first:

Now I walk downstairs

To turn on the news, a minute,

Well, that did not help.

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

# posted by Mark Osler @ 1:00 AM 7 comments

I like politics, in the sense that it is about policy-- decisions made by people in power to benefit the country. However, I'm not a huge fan of politics in the sense of party politics and horserace watching, which is hard to avoid right now, as we wait to see how the presidential election finally ends up.

The Trump campaign seems to want it all to end up in court-- in fact, the president seems convinced that the Supreme Court will hand him the election in the end, one way or another. But there are a few issues the Trump team faces with that.

One is having an issue. The election seems to have been pretty clean, and even when they have raised an issue, it involves very few ballots. As Justin Levitt of Loyola Law School in LA put it (in what has to be my favorite quote of the entire election cycle): "A lawsuit without provable facts showing a statutory or constitutional violation is just a tweet with a filing fee."

The other is having some kind of legal talent working for you. From what I hear, the Trump team is having a very hard time finding good lawyers-- and sending Rudy Giuliani to Philly is not exactly deploying top legal talent (though, to his credit, he did find someone who goes by "Thor" to file the Michigan suit). A track record of not paying vendors doesn't help. Neither does the fact that representing Trump will repel the clients of some top firms (not to mention the lawyers themselves-- and yes, good lawyers do turn down clients because they don't like them). 

If Biden prevails in the end, the next important question will be this: is Donald Trump capable of accepting defeat in a way that reflects the best interests of the country?

# posted by Mark Osler @ 1:00 AM 0 comments

 I'm pretty sure that Sushma Soni was in my "small group"-- a set of 16 students who traveled through the first year together. She was super-smart and an original thinker (there were a lot of people in the class with the first quality, fewer with the second). I do have a distinct memory of a bunch of us-- including Sushma-- going to see "Fatal Attraction" at the theater together, and most of us almost passed out when Glen Close rose out of the tub.

 Sushma came to law school after not only getting an undergrad degree from Northwestern, but a Masters from the Kennedy School at Harvard (a place I find pretty fascinating).  She came in with serious intellectual cred, and was one of those people I would look for in confusing discussions to make a point that was clear, brief, and insightful. 

After law school, she clerked for Judge Butzner on the Fourth Circuit and then, in 1991, went to the Department of Justice. And (in a departure from the template set by some of us who wandered around a lot) she is still there! She is married to a classmate, too-- Jeff Bartos, already profiled here.

Sushma works as an appellate lawyer in the DOJ's civil division, and is (I think) the only person I know who has argued a case in every Circuit Court. In an interview with the Yale Law Women, here is part of what she said about her job:

A typical day in my job involves research and writing. The Appellate Staff has two primary responsibilities, both of them writing-intensive. First, we produce legal memoranda for the Solicitor General, making recommendations as to what course of action the Justice Department should take in particular cases (whether to appeal initially, whether to petition for cert before the Supreme Court, and so on).  Second, we handle briefing and argument for those cases that do actually go to the appellate level. Right now, I’m drafting a brief defending a judgment in favor of the government before one of the courts of appeal.

As a Staff Attorney, I manage all aspects of my appellate cases with only moderate review from a supervising attorney. I also collaborate with attorneys in the Solicitor General’s Office to draft briefs for Civil Division cases that continue on to the Supreme Court. Finally, I help provide comments on briefs submitted by other divisions (such as the Civil Rights Division, the Environment and Natural Resources Division, and others) in pursuit of their own appeals. One of the best parts of my job is the huge variety of legal issues I encounter: Although reviewers generally specialize in a specific area (e.g. intellectual property, antidiscrimination law, or the First Amendment), staff attorneys do not, so at any given moment I will be handling cases in several different subject areas.

 I totally get what she is saying about the joys of being a generalist-- there is lot to be said for learning something new with each case! 

# posted by Mark Osler @ 1:00 AM 0 comments

One of the great joys of my life is that I get to live in Minnesota and still keep connected to my friends in Waco. One way I have been able to do that is by writing regularly for the Waco Tribune Herald as part of their Board of Contributors. 

The reason I get to do that is because of a great editor and writer named Bill Whitaker. He is unfailingly gracious about my work, and has made it better with his editing. 

And he is a great writer. The paper has gotten smaller and the staff has shrunk in the last several years, as has happened across the country. But the quality of the writing has remained high because of veteran journalists like Tommy Witherspoon and Bill Whitaker. 

One of Bill's great gifts has been to offer opinions without mean edges or bitterness-- something that is far too rare these days.

He retired this past Sunday and wrote a wonderful column to reflect on his tenure and comment on this moment in our national history. (It includes a classic insult directed at me by a reader). You can, and should, read it here.

# posted by Mark Osler @ 1:00 AM 2 comments

 It was another good week, even though the subject (the back of your closet) was super-weird!

The Medievalist has the same shirt I do!

I forgot I still
Had that small green t-shirt from
Nineteen eighty-one.

As does Christine (and from the same place, Hickey's):

Pink oxford cloth shirt
Late 1978
Bought in The Village

Hangs next to my kilt
That was bought in Toronto
Both worn in high school.

And Desiree does, too!:

The back of closet
yields flannel shirt. Perfect for
spirit day -- yee haw!

My dad has quite a closet (and a trenchant observation):

They look familiar
put there by someone thinner
I'd better leave them.

While Amy used an excellent word for it (archeology):

Sister's clothes left here,
and dad's effects, make for strange
archaeology.

# posted by Mark Osler @ 1:00 AM 0 comments

 Today I am giving the sermon at First Covenant Church-Minneapolis. You can see it here, starting about 31 minutes into the service.

The text is Matthew 23:1-12:

23 Then Jesus said to the crowds and to his disciples, ² “The scribes and the Pharisees sit on Moses’ seat; ³ therefore, do whatever they teach you and follow it; but do not do as they do, for they do not practice what they teach. ⁴ They tie up heavy burdens, hard to bear,^[a] and lay them on the shoulders of others; but they themselves are unwilling to lift a finger to move them. ⁵ They do all their deeds to be seen by others; for they make their phylacteries broad and their fringes long. ⁶ They love to have the place of honor at banquets and the best seats in the synagogues, ⁷ and to be greeted with respect in the marketplaces, and to have people call them rabbi. ⁸ But you are not to be called rabbi, for you have one teacher, and you are all students.^[b] 9 And call no one your father on earth, for you have one Father—the one in heaven. ¹⁰ Nor are you to be called instructors, for you have one instructor, the Messiah.^[c] 11 The greatest among you will be your servant. ¹² All who exalt themselves will be humbled, and all who humble themselves will be exalted.

# posted by Mark Osler @ 10:52 AM 0 comments