Tuesday, February 27, 2024


The Crisis in Constitutional Law Teaching

My friend Jesse Wegman wrote a great piece that came out in the New York Times yesterday, titled The Crisis In Teaching Constitutional Law. A writer who is also a lawyer (in contrast to me, a lawyer who is also a writer), Jesse gets at something I have been thinking about for a while. Here is the heart of it:

[Teaching Constitutional Law] was all based on an underlying premise that has long bound together everyone involved in the project of training the next generation of lawyers: The Supreme Court is a legitimate institution of governance, and the nine justices, whatever their political backgrounds, care about getting the law right. They are more interested in upholding fundamental democratic principles and, perhaps most important, preserving the court’s integrity than in imposing a partisan agenda.

The premise no longer holds today....

Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these justices have moved quickly to upend decades of established precedent — from political spending to gun laws to voting rights to labor unions to abortion rights to affirmative action to the separation of church and state. Whatever rationale or methodology the justices apply in a given case, the result virtually always aligns with the policy priorities of the modern Republican Party. 

Originalism, which turns judges into amateur historians, creates dilettantes whose "expertise" in history bears an unwarranted pontificating certainty that too often comes from those in black robes (or, in some cases, white ones). A focus of late has been striking down gun restrictions because they are pretty sure what restrictions were in place, and weren't,  nearly two and a half centuries ago. Here is part of what Wegman says about that:

Take one of the most glaring recent examples, the court’s June 2022 decision striking down a century-old New York law requiring gun owners to obtain a permit to carry a gun in public.

New York State Rifle & Pistol Association, Inc. v. Bruen was decided 6 to 3, with all the Republican-appointed justices joining the majority opinion by Justice Clarence Thomas. It was the court’s most transformative gun-rights case since Heller, and like that earlier case, it featured the right-wing justices playing amateur historians, cherry-picking and distorting evidence from decades or centuries ago in order to justify their existing opinions — a practice real historians refer to derisively as law-office history.

The thing about history is this: it isn't directly observable. Unlike science, where usually something is directly observed by the analyst, with history we are looking through a glass darkly. It relies on available documents, which can tell part of the story but not the whole, and usually reflects the bias of those who created those documents. It is better at giving us general ideas about the past than specific ideas about a rule or person. 

To look at it another way, people who shouldn't have guns-- because they are dangerous to others-- will have them because a few Supreme Court justices think they know with certainty what happened in the late 1700's. That's a pretty bizarre way to make such important decisions.

Monday, February 26, 2024


Fad poems

 You guys! I thought it would be a rough week given the topic of "fad diets," but you all really came through! 

The Medievalist is on the same diet I am, apparently:

Taquitos and gin,
Steak, lobster and cold white wine,
Rocky road ice cream.

IPLawGuy had one that didn't work:

Osler diet plan
More "breadolin" did not work
Sticking to ice cream.

One that did then didn't:

Did Ideal Protein
No carbs, no fat, lost fifty
Not sustainable

And one that did!

Fad Diet? Not me!
"RAD DIET" at Canale's
A Roanoke Grill

Anonymous followed my lead:

Follow the five rules.
ALWAYS choose the hard option
75 Hard.

While Amy Garrou doesn't buy it:

Diets lost on me!
I hate authority, so
Clothes too tight? Eat less.

And Jill Scoggins bats clean-up!:

Mediterranean, DASH,
MIND, Volumetrics

Said to be the best
But really it comes to this:
Eat less and move more.

Sunday, February 25, 2024


Sunday Reflection: On the Shore


So many of my favorite parts of the Gospels happen on the shore: Jesus calling the disciples as they are fishing, for example, and my favorite part of the whole Bible where Jesus makes breakfast for his followers after his resurrection. And this in a place that was largely desert!

There is something about the shore that seems to be a fulcrum for connecting with the world and something greater than ourselves. Yes, people love the beach, even if they aren't really doing anything-- they just love to be there

To me, the allure of the shore is that it is this breaking point between land and water, between the known and the unknown. We are safe on the land, but the water is full of danger. Some people venture in; others don't. Even the sounds are different than anywhere else, the sound of waves coming in, one after another, gently relentless. 

My brother sent me the photo above, of my dad and I on the shore in Michigan. He was, I guess, on that line between the known and unknown. Did I know that?

Saturday, February 24, 2024


No Fear or Favor

 One thing (of many) that our office is good at is conveying messages through short, strong videos. Here is the latest:

Friday, February 23, 2024


Haiku Friday: Fad diets!


Yesterday IPLawGuy called to confirm some details of our upcoming ski trip. Since he was driving his 1974 Gremlin convertible at a high rate of speed down Virginia's highway 11 near Troutville, it was a little hard to hear him. I told him I was getting ready for the trip by going skiing, and he responded he was getting ready for the trip by going on a fad diet. Apparently, it is called the "Hardee's Diet," where you only eat stuff you can get at a Hardee's restaurant (which was why he was in Troutville, which is far from his home-- he was mixing it up by going to different Hardee's all over his home state of Virginia). 
I hope that works out for him! I've never done a fad diet, but I have to say that the "Hardee's Diet" isn't even close to the silliest one I have heard of. That might be the "Grapefruit Diet," where you eat only grapefruit, or perhaps the even stupider "Grape-Nuts Diet." Yuck.
Anyways, let's haiku about those this week. Here, I will go first:
Seventy Five Hard:
Gallon of water per day?
Hello tinkletown!
Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun!

Thursday, February 22, 2024


PMT: China's not-so-subtle attack


In 2024, much of what was warfare is now fought out on the internet, through cyber-attacks sponsored by hostile nations. They don't bomb a power station to disable it; instead they make it inoperable by taking it off-line. 

 According to the Washington Post,  the Chinese are becoming the bold world leaders at this game. Recently, a tranche of documents was leaked revealing some of the tools and methods they use. The documents are from a private company that contracts with the Chinese government to extract information or disrupt operations all over the world, from India to the United States. Here is part of how the Post described the operation:

ISoon is part of an ecosystem of contractors that emerged out of a “patriotic” hacking scene established over two decades ago and now works for a range of powerful government entities including the Ministry of Public Security, the Ministry of State Security and the Chinese military.

According to U.S. officials, hackers with the People’s Liberation Army have breached computer systems in about two dozen key American infrastructure entities over the past year in an attempt to establish a foothold and be able to disrupt power and water utilities as well as communications and transportation system.

 Intriguingly, one of the services offered to the Chinese government was to manipulate discussions on Twitter.

 Some of these operations are pretty transparent. Ever wonder why that woman you don't know Facebook suddenly finds your Facebook posts fascinating and wants to know more, IPLawGuy? I think we know...


Wednesday, February 21, 2024


It's my birthday!


I have always felt kind of ambivalent about my birthday, since February is objectively the worst month of them all and people tend to be kind of depressed and grumpy. Plus, once you get past 25, there aren't any real benefits that come with the actual birthday.
Still... it's better to have them than to not have them! And I have an awful lot to be thankful for, including my friendship with Vern, the start of the fabled stage show "The Big Test."

Tuesday, February 20, 2024


But is it basketball?


The NBA All-Star game is a weird ritual. Because the game is meaningless, the players have kind of a non-aggression pact; well, really, it is more of a no-defense pact. The score this year was a 211-186 victory for the East. Yes, really-- almost 400 points total, including heaves from half-court. 
I'm not really into the NBA, but this was oddly compelling. If you look at the highlights above, you'll see that the defense played is pretty performative-- a player will make a show of jumping past someone before he shoots, with no real chance of interfering with the play.
If nothing else, it means there are very few fouls (and injuries)!

Monday, February 19, 2024


Shirt poems

 You all came through once again, and with a somewhat challenging prompt!

Hey, Medievalist, I think I had this same shirt!:
A white Munsingwear
Polo shirt with a penguin
On the pocket. Sweet.
And IPLawGuy, I KNOW I had that shirt: 
High School outsider
College, got into a frat
Proud to wear blue shirt.

Jill Scoggins, I did not have that one:

Coral t-shirt from
Laurel always reminds me
of the fun we had.

Des, I know what you're talking about:
My “I met Little
Sebastian” t-shirt always
brings like- minded friends.
Christine, I can see it:
Old dress shirt, taken
No different from others
But worn by my Dad.
And anonymous, why yes I did!: 

Hey! I know that kid!
Didn't he go to Barnes school?
Very quiet guy.

Sunday, February 18, 2024


Sunday Reflection: Detritus as Treasure


Yesterday, someone I love butt-dialed me. I know he didn't call me on purpose, because the call resulted in a five-minute voicemail recorded from his pocket-- this fascinating snapshot into his day.
Yes, it did feature an extended bathroom sequence, which ended with the sound of a hand drier and a door opening, but there was so much more: snippets of people speaking in English until a woman says "en Espanol?" converting the conversation into Spanish; a bit of driving; something that sounds like packing things into a bag; a moment of quiet followed by a sigh. It was beautiful, and I am keeping it.
That's the kind of detritus worth cherishing- the things that fall off the side of these wonderful fellow travelers as they go along. 
The picture above is from my parents' garage, where my dad sometimes worked and where he definitely kept a lot of his stuff. There is a mass of brushes, but most of them had been carefully cleaned. And there are the rags he always had nearby, splashed with the muted reds and blues he loved. There is a black t-shirt, part of his uniform, and in the front and back there are tangled extension cords (his constant companions).  There is a phone and a remote and a measuring tape, and I suspect that only the measuring tape worked. 
The focal center of it all is a flash of red, that bit of cloth. I have no idea what it is, but that fits, too-- there always was some mystery.

Saturday, February 17, 2024


Jon Stewart is back-- and it's good


Friday, February 16, 2024


Haiku Friday: My favorite shirt

Everyone has one-- or did have one until it finally wore out. Let's haiku about those favorite shirts this week. Here, I will go first:

Fifth grade picture day
"Mark, wear a nice flannel shirt"
My mom instructed.

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

Thursday, February 15, 2024


PMT: Bullets, again


Twenty one people were injured and one killed yesterday, when one or more gun owners opened fire on the Kansas City Chiefs' victory celebration. 
It's so wrong, but at this point so predictable.
Those who think guns should be available to nearly everyone, in almost any configuration, usually say that guns are needed to protect people from crime. But, at this point, the proliferation of guns does not seem to be having that effect, does it?
Instead, the message people hear seems to be-- based on the actions of gun owners like the ones in Kansas City-- that guns are necessary to make a person significant. It gives you the ability to scare others, to even kill them. So often these gun owners involved in mass shootings are people who seem to be seeking nothing more than significance, to matter in some way. 
That idea is deep within our culture. I just watched the fourth season of the TV show Fargo, and I hated it-- more with each episode. It concludes with a bloody shootout at Union Station in Kansas City, the exact same place that yesterday's shooting occurred.  The shooters are two female outlaws who have been looking for the significance that comes from shooting guns at other people. Another part of that conclusion features a young boy finally able to stand up for himself by pointing a loaded gun at (bad) people.  
I hated that season of Fargo not only because of the underlying value professed-- personal meaningfulness through shooting people--  but because the execution of the story was just so lazy. Want to create drama? Put a gun in someone's hand. No need for character exposition or a narrative arc; just a gun and some bullets. 
A mass shooting at Union Station in Kansas City in a TV drama one day (for me, anyways), and an actual mass shooting at Union Station in Kansas City the next day. There is no connection between culture and these mass shootings, though-- of course there isn't, because no one gets their values from the culture, right?

Wednesday, February 14, 2024


The Challenge of A.I. to higher education


Traditionally, the role of college has been clear: Teach young people how to think critically and how to express themselves. 
That goal is in danger of being undermined by A.I.  First, because students are using A.I. instead of crafting their own work-- so they neither have to think critically or express themselves other than typing in a prompt. Second, the rest of the world will change with A.I.-- and people like me who create content won't be so important, so why bother to learn critical thinking or argumentative expression? 
Well, yeah, there is an answer to that question. A world with less critical thinking and genuine debate is going to fundamentally reverse the path of civilization to this point. 
And, since A.I. derives its information from what people have already created, once people stop creating it will start referring to... well, itself, and begin to create reality with reference to what machines think about machines. 
It's not going to be pretty.
There will be moments, of course. I asked A.I. to produce a renaissance-style image of "Mark Osler addresses a crowd," and got the image above, which pretty much nailed it. People not listening? Check. Unkempt appearance? Check. No shirt for some reason? Also check.

Tuesday, February 13, 2024


The Best Ad

 I did watch the Super Bowl-- and the ending was pretty exciting. I also watched the ads, which were a real mix. I'm always kind of surprised by the companies that spend $7 million and then don't try too hard. On the other hand, some ad agencies seemed to think that jamming an ad with lots of celebrities is enough-- for example, that failure of an Uber Eats ad with some of the the stars of The Friends Show. 

Ok, I know it isn't called "The Friends Show," but for some reason I always think of it that way.

Here was my favorite ad:

Monday, February 12, 2024


Poems of the Bowl

 When it comes to the Super Bowl, it's hard to disagree with this:

NPR today
Two thousand seven half time:
Prince. Simply the best.
And Jill Scoggins doesn't!:
As Prince, in purple,
sings Purple Rain, the rains rained
down. It was magic.

IPLawGuy wants to steal my recipes again:
Burying the lede:
What famous chicken nachos
Why no recipe?

Christine has a favorite ad:
The Clydesdales adverts
Are always the best during
The Super Bowl show.

But the Medievalist wants to burn the whole thing down:

It’s underwhelming,
Savage capitalism, ick,
Let’s all turn it off.

Sunday, February 11, 2024


Sunday Reflection: Heroes Aren't Perfect


I have a lot of heroes. A lot of them. And they have made my life so much better. In fact, I suspect some of them are reading this.
The reason is that I chose my heroes because there is something about them that I deeply love and admire: a trait, a talent, an act of kindness, a moment of shining goodness. And that's enough-- if that is there, then the rest of them can be messy, imperfect, blindingly human.  I don't care-- they are still my hero.
And yeah, I probably mean you.

Saturday, February 10, 2024


The Pandemic's Greatest Gift

 It was three years ago that this wonderful event happened:

Friday, February 09, 2024


Haiku Friday: The Stupor Bowl!


Yeah, I'll be making my Famous Chicken Nachos and enjoying the game on Sunday-- even though my Lions didn't quite make it this year. What are your plans? Let's haiku about that this week...
Don't follow the game
But commercials and halftime?
Count me in, football!
Now it is your turn! Just use the 5/7/5 syllable pattern and have some fun!

Thursday, February 08, 2024


PMT: The Trump Question


Today the Supreme Court will be hearing argument in Trump v. Anderson, the case involving the Colorado Supreme Court's holding that Donald Trump is ineligible to run for president because he was involved in an insurrection, under a theory set out by my friend William Baude and my colleague at UST, Michael Paulsen.  They rely on the third section of the Fourteenth Amendment, which says this:

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The trial court in Denver found that Trump did engage in an insurrection, but that he was not an oath-taking "officer" of the United States. Which, frankly, is kind of bonkers. The Colorado Supreme Court upheld the finding on insurrection, but reversed the finding on whether or not Trump was an "Officer" of the United States, thus barring Trump from the ballot. If the Supreme Court of the United States upholds that opinion, it will at the least allow states like Colorado to bar Trump from their ballots, and could result in his being disqualified more broadly. 
 Cynical people who have convinced themselves that the Supreme Court has become nothing more than a political vehicle think the Republican appointees on the court (Alito, Thomas, Roberts, Gorsuch, Kavanaugh and Barrett) will obey their master and vote for Trump out of political fealty.
I'm not totally that cynical. I think Alito and probably Thomas will do exactly that. But... I do think there is some chance that two of the other four (Roberts, Gorsuch, Kavanaugh and Barrett) will peel off and vote against Trump, join the three Democratic appointees, and constitute a 5-4 majority.
Will they do that because they are hewing to the textualism and/or originalism that they espouse, when both approaches seem to push against Trump's position? Maybe. Possibly. Probably not.
But there is something else going on, and it is in a way political. None of those four want to see Trump cases endlessly headed their way like shark-nados, a fate that is almost certain if Trump wins-- and each case will be accompanied by Trump's assertions that they are bound by loyalty to protect him. If they vote him ineligible, they could well be freed of that fate. And... and this is important... each of them wants to be viewed as independent, as thoughtful, as something other than bought-and-paid-for. They hate the idea that people think that this court is more about politics than about law.  This case is their chance to shed that image and still be free to be as super-conservative as they want going down the road.
So, maybe that? We'll see.   

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