Friday, November 30, 2007


Haiku Friday: Debate Edition

It has been a big week here at the Razor, dominated by just three events: (1) The Art Briles hire as football coach at Baylor; (2) Trash-talking in preparation for the debate Monday at 7 pm at the law school; and (3) Britney broke up with Justin Timbertoes. So, may we haiku? Yes we may:

Serr is opponent,
Chicago moderates,
Will I get to talk?

Now it is your turn:


The Wall Street Journal is Reading the Razor?

Intriguingly, This excellent Wall Street Journal Online post links to this little blurb in the Razor. This online community is apparently smaller than I thought.

Thursday, November 29, 2007


Serr Campaign video released


Prof. Serr's candidate is very interesting...

While preparing for the debate Monday with Prof. Serr, I have been doing some research on some of his influences. As many of you know, he is a big supporter of presidential candidate Mike Gravel. Gravel is, uh, kind of hard to figure out. For example, here is one of his actual campaign ads (you have to wait until about a minute in before anything happens):

Here is Prof. Serr's candidate then explaining what this all might mean:


Serr caught on surveillance camera preparing for debate

Late last night, Prof. Serr was caught in this security camera video entering the law school with two of his goons.

He probably has a nefarious plan to pull underhanded tricks at our debate on Monday...

Wednesday, November 28, 2007


Art Briles hired as new Baylor Coach!

According to ESPN, University of Houston Coach Art Briles has been hired as the new Baylor football coach. He has been successful in reviving a moribund U of H program, and seems a good fit with our needs. Plus, there are many legends about his toughness. For example, they say that when Art Briles does pushups, he doesn't push up-- he pushes the earth down. If fact, his shotgun formation is unique in that it utilizes an actual shotgun.


Law, Brains, and Behavior

Doug Berman tipped me off to a fascinating development at the Baylor College of Medicine-- they have started an Initiative on Law, Brains, and Behavior, with the goal of hosting a major conference in the Fall of 2008. The official web site reveals that the point of this initiative is to address "how new discoveries in neuroscience should navigate the way we make laws, punish criminals, and develop rehabilitation. The project brings together a unique collaboration of neurobiologists, legal scholars, ethicists, medical humanists, and policy makers, with the goal of running experiments that will result in modern, evidence-based policy....Emerging questions at the interface of law and neuroscience include: Is it a legitimate defense to claim that a brain tumor ‘made you do it’? Do the brains of minors have the same decision-making and impulse control as adult brains – and how does that change punishment? Can novel technologies such as brain imaging be leveraged for rehabilitation? How should juries assess responsibility, given that most behaviors are driven by systems of the brain that we cannot control?"

These are fascinating issues, and this is exactly the type of interdisciplinary collaboration a field like criminal law needs. Practitioners like myself talk about (for example) how a juvenile evaluates risk differently than an adult would, but we don't really know in a medical sense how that works. It's time to find out.


Kind of cool, in an odd sort of way...

In the post below, I dropped in an old video for the Kraftwerk song "Tour de France" (since it was in German, my theory was that it kind of related to Dieter from Sprockets). Anyways, I noticed that there was also a French version of the video. There are three things which seem to distinguish the French version from the German version of "Tour de France"--

1) They are in different languages,
2) They have similar, but different, images, and
3) Musically, they are two totally different songs.


Tuesday, November 27, 2007


May I recommend a limerick?

I know a guy from the theater
Danced with a monkey like Dieter
A contest he's having
On Limerick crafting
The Drummer, I'll surely beat her!


Football Coach Update

Things are moving fast in the world of Schools-Hiring-Football-Coaches. So far, Baylor's brief dating period with two potential coaches has led to no permanent relationship. First, Mike Singletary took himself out of the running, and now former Arkansas coach Houston Nutt has been announced as the new coach at Ole Miss, rather than Baylor. Rats-- I was hoping for an old Razorbacker.

The scuttlebutt now is that Art Briles, head coach of the University of Houston, is being interviewed today. More news to come...

Monday, November 26, 2007


America's Worst Bathrooms!

Poseur took a shot at describing the worst bathroom ever yesterday, and I have to admire his efforts. Personally, I haven't tried to stop on I-10 in Louisiana, since it seems like if I opened the car door "Dueling Banjos" would start playing from some unseen, malevolent source.

Of course, yankees have their own terrible public restrooms. Not in Iowa-- Iowa has great rest areas. Each one has a theme, which is very well executed. Highway 61 on Lake Superior's North Shore in Minnesota used to be a death run in terms of bathrooms (just stepping behind the RV seemed to be the preferred course), but they fixed that. The rest areas in Illinois are unique but kind of scary-- they are on bridges right over the highway, so you look down on the traffic.

Sticking to horrific-bathroom tradition is Indiana. Desperate once in the southern part of that state, I stopped at something called "Ski World," which had a small, rocky hill and chair lift and a teeny lodge. The sign out front said "Liquor Lotto Cigs SKI WORLD." [I see that Ski World has now added camping to the mix] The bathrooms featured about four inches of standing water. Well, I told myself it was water...


Sad news for the B, and the World

Over at Bearmeat, "Red" Andrews has announced that he is once again dead. Given that BearMeat has been silent since Tuesday, it appears the blog may die with him, and this makes me very sad.

I think we tend to get a little goofy about sports. I'm a fan, myself-- I have season tickets for Baylor football, men's basketball, and women's basketball, and have also been to Baylor softball, volleyball, and baseball games (I'm working on equestrian, Adjunct). I have a great deal of admiration for many of the people involved in Baylor sports, especially Ian McCaw and Matthew Driscoll, the Assistant Head Coach of the men's basketball team, who are among the most hard-working and competent people I know at Baylor.

That said, I think sometimes we take sports far too seriously in terms of imagining they are important in and of themselves. The fate of this University does not rest on who the next football coach will be. Who wins the Super Bowl doesn't really matter in the same way as public education or environmental degradation or criminal law policy.

But that doesn't mean sports don't matter. They matter in the same way that Shakespeare or The Godfather matters-- by defining us and providing us with ways of either evading or framing our own struggles.

At their best, sports stories are basically human interest stories-- tales about a person or group struggling to succeed. They are analogies to our own struggles, proxies for our own tragedies we may not want to dwell on, and ways of being part of a group. Who wins the Tour de France won't affect my life much; that is, unless I choose to pay attention and take inspiration from Lance Armstrong in the same way I do a person I know personally, like Allison Dickson.

I don't know if Ian McCaw reads BearMeat, though I'm pretty sure he took some flack from some alums for their humorous approach. In the end, though, I suspect that he sees the value in someone making fun of things which need that context, which on their own can become false idols. Right now, he's hiring a football coach, and that's important, but somewhere there is also a committee hiring a lab director for a cancer research project with a $50 million budget and a chance of success. Both need to be in proper perspective. And regardless of who the new coach is, I'll be at the first game next year listening to Prof. Serr's predictions and searching the sideline for that walk-on who might just get a chance to play.

Sunday, November 25, 2007


Worst Cars Ever, part deux

Saturday, November 24, 2007


Now THAT was a car!

For reasons I don't fully understand, IPLawGuy mailed me the Washington Post's "Auto" section from January 16, 1971. It is awesome.

The best ad of all is for the 1971 Gremlin produced by the American Motors Corporation. It was one of a trio (along with the Ford Pinto and Chevy Vega) of the crappiest cars ever made. The move to smaller cars was motivated by rising gas prices and new Japanese competition. The Gremlin sold for $1899, and you got a free 12" black and white television. Whooo! Here is the ad copy for the Gremlin:

America's newest and lowest priced car! It outweighs Pinto and Vega-- it's [sic] standard 232 cubic inch, six engine outpowers them all. Wider stance gives more stability in handling!

Friday, November 23, 2007


Turkey Coma Haiku Friday!

You know... I almost forgot Haiku Friday. Doh! That's what happens this time of year. Anyways, write a Haiku below.

You can have your haiku be on any topic at all. My own involves a discussion involving my parents, myself, and another law prof:

What does LARC stand for?
Uh... "Legal Analysis and
Ritin' Correctly?"

Give it a go, my friends!


Pardons, shopping, and destruction

It's good to see that the President of the United States is back in the news, pardoning turkeys. Interestingly, as Doug Berman notes, he hasn't pardoned many other people. While the pardon power has at time been abused (most recently by President Clinton in his last days in office, when he pardoned Marc Rich and others), there are often good reasons to utilize that tool for something other than political favors. For example, it is a very fast way to resolve a case in which DNA or other evidence has undermined a conviction, or for elderly prisoners or those who were convicted under racially-motivated laws.

Meanwhile, today is a very big shopping day at places like "Wal-Mart," which is one reason I won't be there today.

Instead, my Dad and I are going to be tearing down an old rotten pergola behind the house. Ka-boom!


Singletary not coming to Baylor

According to press reports, Mike Singletary removed himself from consideration for Baylor's head coaching position.

I'm not an expert on football or sports administration, but I do know that Baylor Athletic Director Ian McCaw is very competent. In the end, he will bring in a good coach. In the meantime, it will be fun guessing who that might be...

Thursday, November 22, 2007


Thanksgiving 2007

I have always found Thanksgiving to be a very spiritual holiday, if you let it be. Thankfulness is a wonderful thing. One thing the act of being thankful does is to force you to be selfless for a moment, to recognize something besides yourself. We all need that sometimes; I certainly know that I do.

Whatever successes we have, we rarely accomplish them alone, though too often we take credit for it alone. Whatever talents we have, someone taught us, the wealth we have is rarely the fruit of our sole efforts, and even the capacity to love and be loved most often comes through another who has and shares that ability.

Once we recognize the fact that we have done nothing alone, that we are in part made by those good people around us, it is easier to see what God has done, and how.

Wednesday, November 21, 2007


Date, time set for Serr v. Osler

Chicago just stopped by and confirmed that the Serr-Osler debate sponsored by the Federalist Society will occur at 7 pm on Monday, December 3, here at the law school.

Professor Serr (pictured at right) has, apparently, been doing some trash-talking, but I'm keeping myself above all that and simply look forward to the pleasure of a thorough discussion of the issues.

The question, then, is "what issues?" If you have any questions that you believe should be thrown at us, please slap them into the comments box below. The following topics, however, are off-limits at Prof. Serr's insistence:

1) The Third Amendment
2) Arrest records
3) Video of sophomoric antics which may or may not have appeared on Youtube
4) Any events taking place in June, July, or August of 1999
5) Hard fouls in intramural basketball

Tuesday, November 20, 2007


"That's what Thanksgiving is really all about-- spending time in the airport, together."

Americans Enjoying Thanksgiving Tradition Of Sitting Around At Airport


I have a new favorite t-shirt!

Today two very kind student gave me a t-shirt (pictured above) which is perfect in every way. It is what I plan to wear for Thanksgiving, since it is turkey colored. Thanks, guys!

Here is the text:

Haikus are easy
But sometimes they don't make sense


Death Penalty Benthamites

While much of the news about the death penalty of late has focused on the Baze case, in which the Supreme Court is considering the legality of how people are put to death by lethal injection, there are really two more important issues out there. First, fewer executions are occurring. In fact, the number of death sentences and executions recently have been about half what they were in the late 90's. Second, studies are showing that the death penalty may have a deterrent affect, as most recently reported on the front page of last Sunday's New York Times.

These two trends work against one another, of course. If the death penalty deters crime, why would we be doing less of it?

That question seems the right one if your frame of reference is a strict (and overly simplified) form of Benthamite Utilitarianism-- that is, if you measure the morality of actions simply in terms of what creates the greatest good for the greatest number. However, most of us are not Benthamites. While that practical measure may truly inspire many opinions, many of us at least claim to draw our moral principles from other sources such as the Constitution or Christian faith, and if those things are truly our gauge, it may be that we are against the death penalty regardless of whether it is effective or not at deterring crime. As Jack Balkin points out, torture and the execution of thieves would also deter crime, but even our Benthamite impulses do not lead many of us so far as to support those techniques.

In reference to the Constitution, the Eighth Amendment plainly sets out a check on criminal law, and specifically a limit on actions which a strict Benthamite framework would support-- that there can be no cruel and unusual punishments. Certainly, there is an originalist argument against revisiting this issue, which we will no doubt hear articulated in the Baze opinions.

And what of faith? If Christ calls us to something that is not practical in the Benthamite sense, must we follow that call? For example, in John 8 Christ comes upon an execution authorized by the law and stops it by telling the executioners they do not have the moral authority to go through with the killing. Should that be directive to Christians, despite the deterrent effect that executions may well have?

Monday, November 19, 2007


Could the Baylor Bears do the Shuffle?

With all the talk about Mike Singletary being considered as the new coach at Baylor, it seems appropriate to drag out his appearance in the "Super Bowl Shuffle" with the rest of the Champion Chicago Bears of 1985. Singletary (#50) solos about 1/4 of the way into the video. His performance is better than the horrifying performance by Gary Fencik (#45) and not quite up to the standard set by William ("The Refrigerator") Perry (#72). Despite his poor rapping skills, Fencik is still the all-time Bears career leader in interceptions and tackles.


Perhaps I should have listened to Carver and dressed as Slughorn...

My appearance yesterday at Barnes & Noble as Sirius Black actually went pretty well. I had a great time reading to the kids, and they seemed very well-informed on nearly everything that had ever happened at Hogwarts. My Sirius Black costume was a hit, though I couldn't satisfy the desire of some people that I turn into a large black dog and attack random children.

As part of the reading, I would sometimes pause and ask a few questions. As usual, there was one comedian in the group, leading to many exchanges like these:

Me: So, what animal could professor McGonigle turn into?
Kid #1: A cat!
Kid #2: A tabby cat!
Kid #3: Poop!

Me: Why do you think they kept me in prison that long?
Kid #1: Because you killed Harry's parents!
Kid #2: Because Wormtail framed you!
Kid #3: For pooping!

It did make me appreciate my law students...


NYT on GuyMo

As per the story below: Talltenor tipped me off that even the New York Times has taken note of Guy Morriss's departure from Baylor.

Sunday, November 18, 2007


Good-bye to a good Guy

As someone who attended last night's 45-14 whomping at the hands of Oklahoma State, I can probably guess what Guy Morriss is going to be telling his players at a meeting they are having at 1 pm today. I like Guy, but he has been unsuccessful in a field of endeavor that demands success in a very objective way. He will probably tell them he is leaving. [UPDATE: It was officially announced today that Coach Morriss will not be back next year]

The Waco Trib, then, probably wasn't jumping the gun when they listed a number of possible candidates for the job:

1) Larry Fedora, offensive coordinator at Oklahoma State
Pro: Great job at OSU, prior experience at BU
Con: No head coaching experience

2) Art Briles, Head Coach at Univ. of Houston
Pro: Successful, already uses spread offense
Con: Not immediately available

3) Gumball The Clown [pictured here]
Pro: Good catchphrase ("How about a gumball?"), already "sad"
Con: Registered sex offender

4) Mike Singletary, 49ers Assist. Head Coach
Pro: BU legend, strong leader
Con: Prospect of BU players doing Super Bowl Shuffle

5) Houston Nutt, Head Coach, Arkansas
Pro: Experience
Con: Named "Nutt"

6) Jerry Powell, Baylor Law Practice Court Professor
Pro: Will get results
Con: Little experience with spread offense

7) Tommy Bowden, Head Coach, Clemson
Pro: 86-44 overall
Con: Has never entered state of Texas

Saturday, November 17, 2007


Azkaban was not kind to me...

I'm not quite sure why, but I have been asked to appear at the local Barnes & Nobles bookstore tomorrow at 4:30 dressed as a character from the Harry Potter books and spend some time reading from Harry Potter and the Deathly Hallows. I suppose that if the audience is mostly kids, that might be more appropriate than reading from my own book (which isn't even out yet and won't be for another year).

So the question is: Which character? I'm thinking of either Sirius Black (pictured above) or "Epilogue Harry Potter," who is well into his 30's. It would be fun to be Voldemort, of course, but the whole nose removal thing is just too much work.

Any ideas?

Friday, November 16, 2007


Yeah, I'm a computer dork on a MacBook...

Which is why I liked this so much:


Rivalry Week Haiku Friday

It's haiku time-- and the third weekend of November, home of some great football rivalries. Here are the possible, un-mandatory, themes for the week:

1) Serr v. Osler (coming up on November 26)
2) Michigan v. Ohio State
3) Who would I trust with a flamethrower?
4) Yale v. Harvard
5) Dartmouth v. Princeton
6) Stanford v. Cal.
7) Goat noises
8) Barry Bonds v. The Feds
9) "Crazy" Donnie Davies v. All Known Musicians
10) Baker isn't happy about my band practices

Here is my own effort:

Hello, Drinking Time!
What a confused tour group...
All now at Dartmouth.

Now it is your turn-- just follow the easy 5 syllable/7 syllable/5 syllable recipe!

Thursday, November 15, 2007


Gosh, thanks Dada Drummer!

The Dada Drummer has been giving out fake gifts [er, .gifs?] as kind of a pre-Christmas celebration. Look what I got: This great t-shirt making the link between narcotics trafficking and metric system education!

It is pretty much true-- after all, I used the term "kilo" twice today in class. That's more metric system chatter than entire small towns in East Texas will utter over an entire decade.


Explaining the syllabus

A few years ago, I took a wonderful class on teaching from Baylor Profs. Tom Hanks and Anne-Marie Bowery. It not only made me a better teacher, but it challenged me to be a different teacher-- to infuse more passion into my classes, to collaborate more, and to challenge my students to think broadly about the law once in a while. There are some big changes that came of that, such as identifying areas in which large-scale collaboration would be helpful, including the teaching of negotiation (with negotiation kingpin Blaine McCormick).

There have also been some smaller changes, which people may not have even noticed. One is that I filled out my syllabus to be a much more complete statement about the course. Up at the top of each one is a photograph or painting. Surprisingly, students rarely ask why I picked a specific picture for a given syllabus, but there really is a reason each one is there.

The photo above has been at the top of my syllabus for criminal practice the past several quarters. Obviously, it shows downtown New York before 9/11, with the World Trade Center rising in the background at the end of the street. From this point in time, what I find compelling is the calmness of the picture; it's a rainy day, perhaps on a weekend, with little traffic and no one on the sidewalks. Normal. On the first day of that class I list the steps of the criminal law process, with the crime itself as step #2. Number one, of course, is that no crime is occurring, which is what that picture shows-- one of those many calm days before that tragedy. The point of criminal law is, at its best, in large part to prevent movement from step one (calm) to step two (crime).

The bombing of the WTC was both an act of war and a crime. What if the FBI had paid more attention to the reports of radical Muslims in flight schools? What if a prosecutor had followed up on some of the warning signs? What if 9/11 had never happened?

What if? Here's what would be if 9/11 had never happened because intelligence and law enforcement hadn't failed: Today you could wake up early and go downtown in New York and look down that wet street, past the flashing lights and the red brick walk-ups, and see those building rising into the mist, the same as every other day. If we do our jobs right, the world doesn't change-- rather, it stays the same so that lives can be lived out without the tragedy and disruption of violence and theft.

Wednesday, November 14, 2007


UH, UT, South Texas react to Baylor's Success on the Bar Exam

An article now available on-line in the Texas Lawyer magazine describes Baylor grads' success on the bar exam from several different angles. Here is a sample of the meatiest quotes:

Raymond Nimmer, Interim Dean at U of H: "There is a tension between those people who want the law schools of the country to focus on practice skills to train students to be good lawyers and those people who want law students to be good analytically and get them to understand the policies, philosophy and the underlying direction of the law." Nimmer adds that a really good law school should teach elements of both — analytical skills and practice skills — and that Baylor appears to emphasize the latter.

James Alfini, Dean at South Texas: "Part of the genius of what Baylor is doing is requiring the students' work ethic to be at an all-time high in their third year. There is no let up, no coasting — that momentum takes them into the bar review period, and it pays off."

Lawrence Sager, Dean of UT: "For us there is a serious question of whether we can do better with that 10 percent of our students who are having trouble passing the bar," he says. "I would like to be satisfied that every student is given every ounce of support so they can prosper in their chosen profession." But Sager adds that the overall "health of a graduating lawyer" at UT is excellent. "More law firms are reaching deeper and deeper into our graduating class in their recruiting. Our federal court of appeals court clerks went from seven to 21 in the last two years — that puts us very high in the nation's law schools."


Waco, Waco, Waco Dam...

This morning's Waco Tribune-Herald is reporting that the engineers have finally fixed the Waco Dam, and it will no longer be necessary to drain the Brazos river every year for dam maintenance. As Wacoans well know, for the past several years there have been months where the river was just gone, for the most part. Unfortunately, given the law school's location on the river, this always seemed to be true when we were interviewing potential faculty members.

I was one of those interviewees. On my first trip to Waco, I decided to go for a short run down by the river, which was shown on the map near my hotel. So I headed down to the suspension bridge, looked down, and saw an empty pit with buzzards picking at garbage. It was not a great selling point. Thankfully, those days might just be over.

Tuesday, November 13, 2007


Sentencing issues are breaking out all over!

The lethal injection of turkeys aside, sentencing issues are rising to the fore in the popular press. The front page of the Washington Post today carried this story, reporting on the hearings today on the issue of whether or not the change in the crack guidelines (lowering sentences) will be made retroactive. Most of us in the field are guessing (and hoping) that the Sentencing Commission will make the change retroactive; to do otherwise would expose the Commission to charges of racism. When the Commission lowered the guidelines for marijuana, LSD, and OxyContin-- all drugs found in the hands of predominantly white defendants-- they made those changes retroactive.

Of course, we also have the rough equivalent of a national stay on executions pending the Baze case in the Supreme Court. That is likely to be the next big story in criminal law.


Behold the Power of Collaborating With People Who Are Better At Stuff Than I Am!

Yesterday was the first day of Criminal Practice class. For the past few years I have collaborated with Dr. DeAnna Toten Beard, who turned me onto what may be the best play ever about criminal practice, Susan Glaspell's "Trifles." I have to say, I was somewhat scared when I learned that DeAnna is a "dramaturg," but it turned out that just means a scholar of theater history. And she is an excellent dramaturg.

For the session, DeAnna had something really great in store-- she somehow roped her colleagues into actually doing a dramatic reading of the play for the class. It made the story meaningful in a way it hadn't been to me before, and the theater professors did a great job with it. We really had an outstanding cast, too:

1) Stan Denman, Chair of Baylor's Theater Department, whose acting was described by the New York Times as exemplifying "economy and grace."

2) Lisa Denman, who is well-known as a teacher, actor, and director.

3) Thomas Ward, an award-winning playwright who is also an accomplished actor and member of Actor's Equity. Intriguingly, he is a "recognized actor/combatant" by the Society of American Fight Directors, certified in unarmed combat, quarterstaff, and rapier/dagger. I think next time I will have him bring and use his quarterstaff.

4) John-Michael Marrs, an actor and director who did a wonderful job as the D.A.

5) Sherry Ward, a teacher and actress about whom one reviewer gushed "The power that the actress (Sherry Ward) had in making the audience feel for her was so overwhelming that just her stating two words would give me goosebumps."

That's a lot of talent, and we were very lucky to borrow them for the day. Too often, we forget the benefits of being part of a larger university that offers up chances for collaboration if we choose to seek them out.

One more thing about the Baylor Theater Department... they know their way around Youtube:

Monday, November 12, 2007


Baylor Grads and Gragg...

One of my favorite local bloggers, Waco Tribune-Herald writer Wendy Gragg (of Wendy Does Waco), apparently was at commencement on Saturday to cheer on Jennifer Sims. I second everything Wendy says, as usual. It's good to have friends along as you leave a place through those big doors...


Hello, Junior!

Doug Berman's excellent blog on sentencing steered me to this site, which purports to tell you the education level need to understand a blog. Doug's blog received a "genius" rating, while this one is at a "Junior High" level. Doh!

I was a little suspicious that the number-cruncher simply told everyone they were a genius, so I ran some other blogs through. Here are the results:

Yoga n' Philosophy: College (grad level)
Swanburg: Elementary School
Mr. Pankratz: College (grad level)
Bradley Thomas: Elementary School
Yee: High School
Poseur: Elementary School
Dada Drummer: Genius

Sunday, November 11, 2007


But is it Art?

The photo to the right is one of my favorite things I have ever found in New York-- someone claiming to have created a standpipe. Is it art?

People often wonder the same thing about tv shows. I don't know if they count as art, but I know they can be important. I went to our fall commencement yesterday, and my favorite sentiment printed in the program was this, from our graduate Tom Keane:

Thank you to my family, who always believed in me even when I didn't. Also, thank you to the makers of high-quality television programs like "The Office," "Family Guy," and "CSI," for helping to keep me sane over the past three years."

It might not be art, but at its best television can have something to offer.

Saturday, November 10, 2007


Baylor Gameday: Oklahoma!

Today's Baylor opponent is the University of Oklahoma, which is well-known for strong programs in football, women's basketball, and a variety of academic programs. Though one might not guess this of an institution that now includes among its students 600 national merit scholars, the school started with nothing more than a dream. Let's find out more about this fascinating place!

The University was founded by Norman Oklahoma, a Tennessean who headed westward in 1890. He was wealthy, intelligent, free-wheeling, bi-polar, and driven to found a leading institution of higher education. Having heard about new territories to the West from a friend, he mistakenly headed South, ending up in Biloxi. While there, he commandeered a Dutch schooner which was in the harbor, and set out to find his destiny. It was on that schooner that he eventually settled the University which now bears his name. Sadly, the schooner had to be carried the last several hundred miles, and hundreds of Dutch men died on the prairie. To honor them, the University of Oklahoma's teams are still known as the Schooners.

When he got to the point where there were no longer enough men to carry the ship, Oklahoma built his school, using the timbers from the schooner to erect the first building, a tavern. For some 15 years, the tavern remained as the only building at the school, and Oklahoma was the only teacher. During these years, the students were primarily from the local population, but also included those drawn to the school by fraudulent advertisements placed in popular magazines such as Maxim and Blender.

Sadly, in 1905 Norman Oklahoma died in a tragic accident. He was testing a new device of his own invention, (the "Jet-Skiier Machine") off the coast of Jamaica when he was struck, ironically enough, by a schooner. Interestingly, this is consistent with the tragic deaths of other college founders at the hands of men and beasts later made the mascot of that university. Taylor Cincinnattus, founder of the University of Cincinnati, was mauled to death by a mixed group of bears and wild cats which had escaped from a private roadside zoo; Ernest Vanderbilt was killed in a duel by Commodore Edmund Peary; Franklin LaCrosse, founder of the University of Wisconsin, suffered a fatal stroke when he was attacked by badgers; Thomas Jefferson died due to mistakes by his physician, Robert Cavalier; and, perhaps most famously, Judge Ted Baylor was attacked by bears. Even old Eric Tech, founder of Texas Tech University, suffered a similar fate. His home was invaded by hordes of fire ants seeking out his large collection of cheese. Tech was nearly fully consumed by the greedy red raiders, who also stripped the house of the cheese. Even lesser institutions have been affected, including junior colleges and universities. For example, Leland Stanford, founder of Leland Stanford Junior University, was eaten by a single Cardinal while climbing a particularly hideous tree.

But today, let us celebrate the legacy of Norman Oklahoma, whose wildest dreams may even be exceeded at today's game! The game will be televised, giving us a glimpse of many OU traditions, including the Parade of The Midnight Freshmen, and the school's proud mascot, Military Chicken (pictured above).

Friday, November 09, 2007


A lucky day

For the past several years I have been giving lectures with Henry Bemporad, who is now the Chief Federal Defender for the Western District of Texas. The Western District is gigantic, stretching from Waco to El Paso, and encompassing courthouses in San Antonio, Austin, Waco, Midland, Alpine, Pecos, Del Rio, and El Paso. There have been two wonderful aspects of this; the first has been seeing such a broad swath of Texas, and the second has been working with Henry, who is a one of the best legal minds I have ever come across and a genuinely good man.

Yesterday, we lectured in Austin. As often happens, I had the pleasure of having a former student in the audience-- in this instance, David O'Toole. I'm always kind of amazed to find people I taught actually out in the practice, even if I knew all along they would be excellent lawyers.

What was best about yesterday was that Henry brought along his dad, Rabbi Jack Bemporad. Rabbi Bemporad, who taught for years at SMU, was preparing for a stint at the Vatican's Angelicum University. He has played a central role in Jewish-Christian relations, particularly in his work with Pope John Paul II, which included writing the Prague Agreement. At one point, Rabbi Bemporad addressed 50,000 people at the Vatican, including the Pope, the Dalai Lama, and other world religious leaders.

We had a great lunch at La Traviatta, which turned out to be much better than Waco's finest Italian restaurant, the Olive Garden (which really isn't as bad as some people think). Rabbi Bemporad was interested to hear about my book, but of course he knew more about the subject than I did. As you might expect, he has already been through the process of publishing a book. Spending time with him was a real pleasure, and helped me understand exactly where people like Henry Bemporad come from. Of course, I also discerned another thing Henry and I have in common: We both have dads who are way cooler than we are.


Welcome, Haiku Friday

Rarely are Haiku Fridays as eagerly awaited as during finals week. Today is the last of the exams, and I think we will all be glad to see it pass. Monday is the start of a new quarter, and it all begins again.

Here are some themes for this week:

1) Professional wrestlers
2) Lawyer-heroes of Pakistan
3) Death of a laptop
4) Austin, Texas
5) C. Montgomery Burns
6) Flying cars
7) Baylor dancing
8) Thurston Howell III
9) Thanksgiving
10) The perfect test

Here is mine for the week:

Hacksaw Jim Duggan
Virtuoso of the mat
He pinned Andre.

Now it is your turn-- 5 syllables/7 syllables/5 syllables is the code.

Thursday, November 08, 2007


Mommy, where do law professors come from?

My friend and colleague Tom Featherston sent along this fascinating piece describing a lecture by Harvard Law Professor Daryl Levinson about contemporary law school hiring. Obviously, the general disdain for practical experience does not apply at Baylor, where most of the faculty (including myself) had significant work experience in our fields before entering the world of teaching and scholarship. Here is Professor Levinson's take (in part) on what has changed in the past two decades:

"So what exactly do law schools look for in an entry-level professor? A quarter century ago, the answer was clear. Historically, law schools looked to the traditional indicia of academic achievement: high grades, membership on the law review, and prestigious clerkships. However, this has long since ceased to be true. As law schools discovered that high grades were not good predictors of whether a candidate would produce good scholarship, and as the forms of scholarship valued by the legal academy shifted, the qualifications for candidates changed. Even practical legal experience is not a good predictor of scholarly ability, and, Levinson noted, "is pretty nearly disqualifying." Levinson pointed out that today's younger professors have no significant practical experience, and that if they tried to become involved in the world, "the world would probably recoil in horror."

Instead of fancy grades, clerkships, and practical experience, the modern credential of choice for law school hiring committees is a graduate degree in an allied field such as economics, political science, and even English or psychology."

[Note: The photo depicts "The Genius," my all-time favorite professional wrestler. He would clobber his opponents over the head with his Harvard diploma, which inexplicably was made of metal]


The Fictional Fifteen

According to Forbes magazine, these are the 15 richest fictional characters:

Rank Name Net Worth
1. Santa Claus $ ∞
2. Richie Rich 24.7 billion
3. Oliver "Daddy" Warbucks 10 billion
4. Scrooge McDuck 8.2 billion
5. Thurston Howell III 8 billion
6. Willie Wonka 8 billion
7. Bruce Wayne 6.3 billion
8. Lex Luthor 4.7 billion
9. J.R. Ewing 2.8 billion
10. Auric Goldfinger 1.2 billion
11. C. Montgomery Burns 1 billion
12. Charles Foster Kane 1 billion
13. Cruella De Vil 875 million
14. Gordon Gekko 650 million
15. Jay Gatsby 600 million

Of these, I would have to say that C. Montgomery Burns and Scrooge McDuck seem to enjoy their money the most. Could it be that money can't buy you happiness, unless you are animated?

Wednesday, November 07, 2007


Osler TV

If I had a TV show it would be exactly like this:

Mean Automakers Dash Nation's Hope For Flying Cars


Another good insight on flat rate v. billable hours...

Once again, my students and former students are making a lot of sense. In an emailed follow-up to a recent post on billable hours, an especially accomplished former student made this important point:

Flat fees do much harm to clients and don't increase the quality of life
for lawyers. Most small scale insurance defense is migrating to flat
fees. The whole game with flat fees is doing as little as possible to
earn the whole fee. There is no incentive for quality. And, when the
partners figure out just how fast you can complete the various tasks,
they expect it done in the shortened time period and load you with more
work to fill the gap.

The best fee arrangement is the contingent fee but it only works in
certain situations. In other words, you can't really do contingent
small divorce cases. Nor can you defend a lawsuit on a contingent
basis. We do some reverse contingent appeals but we have a fixed dollar
amount, stemming from the judgment, so it is easy to work backward to
calculate a fee based on savings. The contingent fee is great because
it aligns the lawyer and client's interests to the greatest degree
possible. One problem, though, is that it does not align the lawyer and
client with the interests of society as a whole. There are times when a
$200 million judgment is not a good thing for the economy, a particular
company, or a town that relies on that company.

Tuesday, November 06, 2007


More ideas for what to do once finals are over!

Singing, dancing Baylor students! I swiped this from Bearmeat, but they just slopped it over from Youtube, themselves.


Lawyers in Pakistan fight, literally, for the law

To whoever posted the comments urging me to put up something about the lawyers in Pakistan who have taken to the streets: You are totally right. This is a remarkable situation.

In short, the head of the military junta in Pakistan, General Musharraf, seized power in a coup in 1999. He has enjoyed strong support (in the form of billions of dollars) from the Bush administration, largely in the hopes that he would fight al-Quada and deliver up Osama bin Laden. He appears, at present, to be losing the fight against religious extremists.

He also, until recently, was losing the fight to essentially concentrate power in himself, as the Supreme Court repeatedly limited his powers. Musharraf's response was to remove the Chief Justice of the Supreme Court. This action, which seems to be without a legal basis, inspired the lawyers to rise up and take to the streets. These lawyers have quite literally picked up the fight-- even from the roof of the Supreme Court building. Now Musharraf has detained thousands of lawyers in an attempt to restore order-- or at least to monopolize the creation of disorder.

I once was in Paris when the travel agents were rioting over new travel restrictions. I remember thinking there was something quaint about that until I saw them on tv-- they were really busting things up. This has a bit of the same air about it, but involves a much more fundamental and important issue.

How much would we do to defend the Constitution? Could it ever include actions like this? If not, what is it that we are really defending?


Things to do after finals-- "American Gangster"

I don't expect that many Baylor students are going to movies this week, but once finals are over at least a few might want to go see Denzel Washington in American Gangster. It's the story of Frank Lucas, who rose to the top of New York's heroin trade in the 1970's. The presence of Denzel Washington is a good reason to see the movie, of course, but I'm fascinated by the subject matter as well. One great thing about teaching and studying criminal law is that it is always around us, both in the news and popular culture.

Lucas was not alone; he was one of several heroin overlords who rose to prominence at about the same time. In Detroit, for example, the local Frank Lucas was Butch Jones, who helped destroy the city while creating a new paradigm for criminal groups. His gang, Young Boys, Inc., created horrifying innovations such as using juveniles to handle the drugs.

One thing the movie illustrates is that not all drug dealers are equally dangerous. It is those who are innovators, leaders, and good businessmen who create the most societal damage. Some criminals are much more successful than others, and if we care about controlling crime we need to prioritize those most important targets. One reason that I have worked against the 100-1 powder-crack ratio in federal sentencing (which actually was taken out of the sentencing guidelines last week) is that it creates exactly the opposite incentive for law enforcement, since crack dealers are at the bottom of the criminal network leading to crack sales.

Monday, November 05, 2007


Articulate student, farked Dilbert

In the past few days I received two comments on law firm work-- the first in the form of a very good point made by Ms. Boatman of the PC class, the second from a Baylor graduate in the form of a well-farked Dilbert cartoon. I think I agree much more with the former than the latter (after all, I was an associate at a big firm, and generally it was a pretty good job). I think there are problems with the billable hour, but I'm not sure there is a good alternative, either. The alternative Ms. Boatman refers to is Scott Turow's suggestion that flat-fee billing be considered.

This was Ms. Boatman's comment:

Lawyers in big firms are definitely suffering, but I'm not sure if the solution is as simple as getting rid of the billable hour. My thoughts on it are that the attitude of the big firm is already set. Just because they start billing by the job does not mean that senior partners will start going home and sending their associates home at 5:00. The demands will probably remain the same. I think that will just put the pressure on in a different way, by demanding that each associate complete more projects. I also think that, just as the billable hour may reward inefficiency, the transactional billing approach may reward the fastest worker, even if some quality will suffer. That is just as bad for the client, or maybe even worse. The billable hour encourages attorneys to pursue every option and research every question, whereas a flat fee does not reward that type of thoroughness. In my opinion, the proposed system has just as many problems; they just are not the same problems.

It's an excellent point-- and may explain why so few firms have moved away from hourly billing.


Oh, you Bears...

I check Beer Mate regularly for updates on Baylor football, and it is probably telling that mostly they have been covering the fans lately. I was pretty impressed with one thing at the game last Saturday-- long after the outcome was decided and many of the fans had left, the band seemed to get even louder and more fun. At many schools, one might chalk this up to furtive drinking, but maybe not at Baylor. I, at least, appreciated their efforts.

It seems some people at law school need some cheering up during finals, but I doubt having the marching band come through would help much.

Sunday, November 04, 2007


Bar exam rankings and teaching to the test

Over at Autoadmit, a post on the thread regarding Texas bar results had this to say:

In all fairness to the other Texas schools, I definitely get the impression that Baylor's curriculum and approach is all about the bar exam. In other words, it is a three year bar review course.

In all fairness to Baylor and especially its students, I would disagree. I don't think that the curriculum is anything like a "three year bar review course." It might be fairer to say it is similar to the way people end up studying for the bar exam regardless of their school-- with the pressure, the expectations, and the competition built in. And that, in fact, may have a lot to do with the success Baylor students have had on the bar.

I certainly don't apologize for the bar results, since I think it comes from what is so great about our students-- their hard-working nature and smarts. At the same time, I do think that bar results, in themselves, are not a total quality measure of any institution. Part of the equation? Sure. Students want to know if they are likely to pass the bar, since it is a scary fate to pay for professional school for three years, then be held out of that profession. Still, at that, only about two percentage points separated many of the Texas schools (with Baylor five points ahead of that group). That seems close to a statistical dead heat, and no one should pick a school based solely on a small differential in bar pass rates.


Sent to me by someone with way too much time on their hands

Saturday, November 03, 2007


Homecoming Mayhem at Baylor!

Baylor's Homecoming antics hit a fever pitch this year. The Lariat, Baylor's student paper, had extensive coverage this week on the tradition of the "Eternal Flame." I'm not quite sure what the eternal flame represents, but this tradition does seem to play fast-and-loose with the term "eternal." Among the Lariat's headlines this week:

Day 1: "Eternal Flame Tradition Continues"
Day 2: "Eternal Flame to Be Extinguished at 2 A.M.
Day 3: "Eternal Flame Cancelled"

Again, I'm unclear on the specifics, but it seems that the eternal flame is guarded by freshmen, who are then attacked by upperclassmen who try to put it out. Violence seemed almost predestined.

I managed to see the second half of Baylor getting shellacked by Texas Tech (final score 38-7). Baylor played five different quarterbacks, plus (I think) Professor Serr. However, it wasn't the Baylor blowout that was most significant. Rather, I kind of gasped when this appeared on the scoreboard:

Kansas 76
Nebraska 39

Basketball score? More crazy highjinx from the Baylor scoreboard operators? No, in fact, just a terrifying reality for Nebraska fans.

Finally, having stayed to the bitter end, I was handed a little pamphlet as I left the stadium. It turned out to be an advertising book from a razor company with lots of coupons. What I found unsettling was the tag line on the cover: "SHAVING SOLUTIONS FOR THE WHOLE FAMILY!" Gah! What kind of family is that? I can see, maybe, a family of skinheads using a special razor to shave their kid's head. Baylor, oh Baylor...



Giving exams always stresses me out. The PR final was today, which is a hard one to write. For those wondering, the questions were about 1/3 criminal, to correlate to the ratio of cases in courts, but the rules that applied (except for 3.09) applied either to civil or criminal-- the answer would have been the same if it had been a civil case.

For those in PC-- two down and one to go!

Friday, November 02, 2007


Finals Haiku Friday

It's always interesting to haiku around finals time. Let's try to keep it upbeat, folks!

Here are the suggested topics:

1) Passin' the Bar
2) Midnight Breakfast
3) Foreign policy regarding Iran
4) The worst finals question ever
5) Where's Britney?
6) Is the World Series over?
7) Noley Bice as Elvis
8) Guiliani
9) Gods of Bowling
10) Halloween

Here's mine:

Property final:
Capitalism v. Commun-
Ism. Please compare them.

Thursday, November 01, 2007


Bar Results! Congrats New Lawyers!

First Time Takers, July 2007 exam:

1. Baylor 97.85%

2. SMU 92.44%

3. Houston 91.83%

4. TWU 91.14%

5. So. Texas 91.12%

6. Texas Tech 91.01%

7. Texas 89.55%

8. St. Marys 86.57%

9. TSU 65.32%

Congrats to JJS and everyone else who passed! Overall, a good showing for Baylor and Texas Wesleyan, which seems to be moving up. University of Texas, 7th out of 9. Ouch. Notably, though, with a few more people passing UT would have been up in the top three.


PR Update: Convertino Acquitted

My former colleague in the US Attorney's office in Detroit, Rick Convertino, was acquitted yesterday of charges that he illegally withheld evidence from defense attorneys in a terrorism case. News reports on the case appeared all over the country, most noting that it was a double humiliation for the DOJ-- first Convertino's case fell apart, and then their case against him fell apart. It's a sad story from start to finish.

Much like my colleagues at Baylor Law, my co-workers there were a colorful lot. Some, like Steve Murphy and Jennifer Granholm (who left right before I got there) went on to other things (as did I), while others like Convertino stayed put while things got stickier after 9/11. I have a lot of admiration for career prosecutors, though I think Convertino's case illustrates some of the problems inherent in the job.

Further, affiant sayeth not.


I'm now kind of scared of my colleagues

The Midnight Breakfast was great-- well, the general experience was. The green eggs were a little disturbing, but did help me with my sales of ham.

For those of you who were not there, the professors served a midnight breakfast to the students on the eve of finals. In keeping with the holiday, the profs dressed up in costume. Noley Bice and Beth Miller, pictured here, were especially notable. Noley/Elvis was serving up hunka-hunksa-burning eggs, and Beth was, well... kind of eerie. For a while, I wasn't sure who it was. I think she was representing death, something I would expect more from someone teaching English than upper-level business law classes. It was a most excellent costume.

The overall most creative (and scary, if you are a student) appearance was Jeremy Counseller as his own Civ Pro exam, marked with an "F." Ron Beal was a Shakespearean judge (with modern coffee accoutrements), while Heather Creed appeared as not-so-dangerous bee. Brian Serr was (I think) Hannah Montana at age 48 after a lifetime of unhealthy living. Rory Ryan, meanwhile, appeared in the guise of a depressed Nebraska football fan.

Overall, a great time and a great plan from Heather Creed.

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