Monday, June 30, 2008


General Motors Update!

Hey, guess what? America’s stupidest company, General Motors, decided this month that maybe it was time to make some really good fuel-efficient cars. So, with great aplomb, they announced that they are going to begin development of two new small cars.

Way to go, guys! 26 years after the well-made Honda Civic hit the US, you’ve figured out that over the long run gas might get expensive and you will need to build a decent small car. Sure, GM has (outside of the relatively teeny Saturn division) three small cars, but two of them (the Pontiac Vibe and the Chevy Aveo) are made by others, and the third, the Chevy Cobalt, is one of the crappiest cars manufactured today (believe me, I have driven Cobalts, and they are terrible). For the past two decades GM has focused its engineering primarily on huge SUVs that now are selling (if at all) at huge discounts.

After three decades of blaming labor for its problems, it’s becoming apparent to everyone, even investors, that GM’s problem is an utter failure of long-term decision making. Setting aside the damage this has done to communities like Detroit and Flint, consider the incredible loss of value these boneheads have created. GM bonds trade at six levels below investment grade (at B-), meaning that they are so far into junk bond status that raising money to build a decent small car is going to be very expensive, so they will have to burn through cash reserves. GM stock now is worth less than it was in the 1950’s—so if you bought GM in 1958, say, and held it, you would lose money selling it now.

In fact, GM’s market capitalization (the total value of its stock) is now about $6 billion. That sounds like a lot, but it is a pittance compared to every other component of the Dow Jones Industrial Average. The next smallest is Alcoa, at about $29 billion, and ExxonMobil has a market cap of about $460 billion. Toyota’s market cap is about $150 billion, meaning that Toyota is worth about 25 times as much as GM.

Toyota is worth 25 times as much as GM. Guys, do you still think that it must all be the fault of the people who actually build the cars? GM isn't exactly a whiz at marketing either. We all know what a Civic and an Accord are, because those names don't change. However, GM's marketing gurus constantly change the identities of their products, making establishment of a brand very difficult.

Actually, GM can engineer and build good, innovative cars. The Cadillac CTS and Chevy Malibu are good cars. And, of course, GM spent $1 billion to develop the technologically successful EV-1 electric car. Those who got the cars loved them. GM, naturally, then decided to kill the program and shred the remaining cars. That was five years ago.

Do you think there would be interest in an electric car today? Sure there is, and in several years GM plans to produce one. Sigh.

If this seems personal, it is because I grew up around GM executives, who over a few drinks would uniformly blame working people for whatever problems the company had. I have never, never, heard a GM executive or former executive actually accept responsibility for what has happened. Yet, the proof of their failures is in the numbers.


But really, it was for a good cause...

Hey, sorry the blogging has been light the last few days, but I was out of town at a rally. I guess that this Political Mayhem Thursday just has turned me into more of an activist. Anyways, I met some really cool people and had a great time:

Sunday, June 29, 2008


Sunday Reflection: The Presence of God

Though it is pretty simple theology, believing there is a God changes everything. If there is a God, a creator, after all, then He is big and I am very small. My knowledge is just a thimbleful in the ocean that is His.

Is there anything more humbling than that? And humbling in such a good way, in a way which makes me comfortable with the answer to so many questions being "I don't know."

Saturday, June 28, 2008


Now I'm in love with recuts...

I blame this all on the evil folks at Magnificent Vista, where I first came across these...

Friday, June 27, 2008


Dang! Non-Immunity Haiku Friday

I just realized that for about the 400th time in a row, I think I called on people with immunity on immunity day. (Provided last Thursday was immunity day). I NEVER remember. Urgh.

So, should I pay them their 5 bucks back?

Anyways, it is haiku Friday. You may select from the following themes:

1) Guns
2) Osler ignored my immunity
3) Guinn's happy day
4) The Washington Nationals
5) Nirvana
6) High school prom
7) Get Smart
8) Worm-velopes
9) Justice Scalia
10) Bathing

Here is mine:

Too much of a hassle
To buy worms and envelopes?
Buy my worm-velopes!

Now you get to go--

Thursday, June 26, 2008


Political Mayhem Thursday: Grab your gun! Heller is out! [Updated]

The Supreme Court announced its decision today in the Heller case, stiking down two Washington DC gun control statutes under the Second Amendment. [In whole, the Second Amendment states that "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."] You can (and should) download the entire opinion here.

As usual, the opinion was succinctly described over on Scotusblog:

Answering a 127-year old constitutional question, the Supreme Court ruled on Thursday that the Second Amendment protects an individual right to have a gun, at least in one’s home. The Court, splitting 5-4, struck down a District of Columbia ban on handgun possession.

Justice Antonin Scalia’s opinion for the majority stressed that the Court was not casting doubt on long-standing bans on gun possession by felons or the mentally retarded, or laws barring guns from schools or government buildings, or laws putting conditions on gun sales.

In District of Columbia v. Heller (07-290), the Court nullified two provisions of the city of Washington’s strict 1976 gun control law: a flat ban on possessing a gun in one’s home, and a requirement that any gun — except one kept at a business — must be unloaded and disassembled or have a trigger lock in place. The Court said it was not passing on a part of the law requiring that guns be licensed.

I have, of course, used a variety of guns over the course of my life. I have hunted with guns, shot pistols and rifles recreationally, and as a prosecutor got the great joy of shooting a wide variety of weapons which had been seized by federal agents. Like many people with a background in law enforcement (though certainly not all), I do have qualms about generally broadening individual access to more guns and a greater variety of guns, though this is a practical and not a Constitutional position. On the other hand, I see the liberty interest in making the Second Amendment's meaning clear and giving it full effect.

Intriguingly, Heller's holding (if it is to strike down the DC law) would have a similar effect on states as yesterday's ruling in Kennedy-- that is, it would result in an unelected judiciary reversing the will of a democratically elected legislature by construing some relatively vague language in the Constitution. Basically, one justice (in a 5-4 decision) may end up outvoting everyone else.

Is limiting states' ability to enact gun laws a good thing? Is it constitutional? What say you?

Wednesday, June 25, 2008


Supreme Court strikes down execution as punishment for rape of a child

This just in-- The Supreme Court ruled today that the death penalty is not a proportionate punishment for the rape of a child, striking down a Louisiana law. The 5-4 majority opinion was written by Justice Kennedy, who was joined by Stevens, Breyer, Ginsburg, and Souter.

Among other interesting aspects, this confirms that Kennedy has taken over O'Connor's position as the swing vote on death penalty cases.

The opinion in Kennedy v. Louisiana can be (and should be, by you law students) downloaded here.


This is what you get from extensive research...

Baylor is lucky to have many great professors, and one of the best is Brian Serr. I'm lucky to teach the students in advanced-level classes after he has had them for Criminal Law and Criminal Procedure, and I find that they are very well-prepared.

I count Brian as a good friend as well as a valued colleague, and we go skiing every year out in Utah. I've gotten to know some of his secret super-powers, and will reveal one of them here: Prof. Serr is able to come up with a top-five list for almost anything. I first discovered this when I asked about his favorite fast-food joints, and he immediately gave me his top-five, which (best as I can remember) went like this--

1) Arby's
2) Burger King
3) Wendy's
4) Chik Fil-A
5) KFC

For the record, I think this list would hold only if Starbuck's is not considered a fast-food joint.

And he is TOTALLY CORRECT about Arby's...

Tuesday, June 24, 2008


Genius! (But Snape might not think so...)

BLS people might get a kick out of Jesse Davis' latest post over at self-infliction of emotional distress. In short, he's assigned new identities to many of my colleagues (though not to me, best as I can tell).

A few of them stumped me, though. Both Underwood and Serr are the sons of preachers, so I was somewhat unsure which was which, until I figured out that there was a brief mention of criminal law in one profile and not the other...


The Supreme Court still pondering death penalty, other issues


The 8th Circuit makes Prof. Osler a saaaad panda

As some of you know, I worked for a few years on a case called US v. Spears, in which a district court judge in Iowa departed from the federal sentencing guidelines' strict 100-1 ratio between powder and crack cocaine. I argued the case in the 8th Circuit, and seemed to have two of the three judges on the panel agreeing with me while the third (Judge Riley) clearly disagreed.

For months, we heard nothing on the case. Finally, instead of a panel opinion, we received an en banc opinion from the court as a whole ruling against us, with the Judges Bye and Lay in dissent! Clearly, Judge Riley had rallied the troops behind the scenes, and had gotten an en banc opinion without allowing the issue to be briefed or argued to the court as a whole.

So, with the help of Dustin Benham and Doug Roehrich, I sought certiorari from the Supreme Court. The Court, about this time, took the case of Kimbrough on the same issue. There, they agreed with the argument we had made in Spears (and in an amicus brief we filed in Kimbrough with the help of Matt Acosta), and held that the 100-1 ratio is not mandatory. They then granted our cert. petition in Spears, vacated the decision below, and remanded it to the 8th Circuit.

Now, the en banc 8th Circuit, in a 6-5 vote, has chosen to stick to their guns and again rejected the district court's opinion, despite the Supreme Court's opinion in Kimbrough. You can link to the opinion via Doug Berman here.


Monday, June 23, 2008


Back when I had a radio show...

...This was the stupidest song I ever played.

But I loved it.


Sign of the Times (Bad, bad times)

For about a week now, the Applebee's on Valley Mills Rd. in Waco has had a sign out front saying "New ick n Pair." Now, I understand that it is a mistake (or sabotage by those guys from Chili's), but shouldn't someone maybe head on out to the sign, at least to take the word "ick" off of the restaurant's marquee?

That's not the funniest I have seen, though.

The second funniest was from my childhood in Detroit, when there was a billboard near the intersection of I-75 and I-94 for a bread company. It was lit in neon, and usually said "Bunny Bread-- It's Good!" That is, until the "d" burned out, at which point it said "Bunny Bread-- It's Goo!" Which, if you are 10, is the funniest thing in the whole world.

The best ever, though, was right here in Waco. Before they remodeled the McDonald's near campus, they had an changeable sign facing the I-35 service road. One day, advertising a new burger, it said "Try the New Big n' Tasty-- 99 cents!" Then someone messed with it. The next day it read "Try the New Big nasty-- 99 cents!"

I still kind of wish that a fast-food place would be honest enough to call one of its burgers the "Big Nasty."

Sunday, June 22, 2008


Scott Walker stepping down

Last week, the minister at First Baptist Church of Waco, Dr. Scott Walker, announced that he is stepping down. Though he is not my own pastor (I am a member of Seventh and James), Scott is one of my favorite preachers. At the risk of sounding a little church-obsessed, I will admit that many Sundays before attending 7th and James, I watch Scott's sermon on television. This morning, as I watched his sermon from last week announcing his resignation, I was moved and saddened.

I have also gotten to know Scott personally, and he was one of my primary encouragers as I started working on my book. His own books are great, and I look to him as a mentor as an author.

Scott has given a lot to this community, and I don't doubt that the next chapter of his career will be worthwhile as well, not only for him, but for the rest of us as well.


New BLS blog!

Oh, man, I feel stupid. I just noticed that commenter and ace researcher Diadelkendall has a blog. I'm not sure how that slipped by me for so long, and I am chastened. It has been added to the roll to the left. Hey, if there are any other new ones at BLS, let me know in the comments section, 'k?

Saturday, June 21, 2008


Chapter 1,180, in which I purchase Ted Nugent's coffee table for $15

As promised, this morning I went to Ted Nugent's garage sale, and it was excellent. As one might imagine, there were a wide variety of dead animals for sale, including a gigantic rhino head (visible in the background in the picture above. Surprisingly, though, the offerings weren't limited to heads n' racks, but extended to Terrible Ted's living room furniture and clothing. He had a lot of used shirts for sale, but they seemed a little too... used, for the most part.

Some of my favorite items available included a Simpsons DVD box set, goofy tennis shoes, several classy paintings depicting animals one can hunt, a giant pile of various shoelaces, a math textbook, and a super soaker squirt gun. The prices were actually very reasonable, and I would have bought more if I had more room in my car. As it was, my total bill was $21. I got the following:

1) Super soaker squirt gun-- $1.50
2) Ted Nugent's polarfleece hat-- $3.00
3) Ted Nugent's coffee table-- $15.00

As I paid for my purchases (the coffee table was originally going for $45, but I got it for $15-- thanks, Blaine McCormick!), I was told that the coffee table was kept next to Ted's couch where he watched tv. He kept his radio on the table and the batteries leaked, and that's why it needs to be sanded and refinished. It is an outstanding table though-- solid hardwood, and not a bad design. Once Wayne the Builder is done refinishing my guest house, I'll put it out there.

It was my favorite garage sale ever.

All of which raises an interesting thought-- if you could buy stuff at any celebrity's garage sale, which celebrity would you pick, assuming there were reasonable prices and good variety?


Link to meaning

I hate it when my students hurt, though I would rather know why than be in the dark. Blogging helps with this, when I can read something like this. And, yes, I am one of those praying for his family in a difficult time.

Friday, June 20, 2008


minimalist haiku Friday

theme: heat


Rising in waves
off the black pavement, shimmers
distorts all I see.

Now, you...

Thursday, June 19, 2008


[Gender] Politics Thursday!

Originally, I was going to post about criminal law issues in the 2008 elections. Then (in relation to another project) I had my ace research assistant, Kendall Cockrell, dig into the candidates' positions. He found some stuff from Obama, but nothing, really from McCain, even when he called their offices-- literally, it appears to be a non-issue in this election.

So, now I am on to Plan B, which promises to be a doozy. I do not take a position on this, but rather pose a question.

Going to Yale Law School was like getting the Golden Ticket to the Wonka factory. It made all kinds of things possible-- clerkships, teaching, a network of academics and judges-- and is a unique and powerful credential that opens many doors. One can fairly argue that those advantages are unearned (I largely agree with that argument), but it is indisputable that they exist.

There are a very limited number of those Golden Tickets-- about 130 a year or so. It is almost impossible to calculate its value, if one wants to change the world in the field of law (an expectation that was made clear to us from the first day of orientation).

Here's the thing, though: Many people get that Golden Ticket, cash it in, and then never use the education in the traditional way. Most of these people, though certainly not all, are women who finish law school and then decide (either immediately or after a few years) that they want to be stay-at-home moms. Many of these women never return to the work force.

This is not a phenomena limited to any one prestigious school. As the NY Times has reported, it is a trend at many elite schools. For example, for graduates of Harvard Business School out for 10-20 years, almost a third of the women do not work, and another third work part-time:

A 2001 survey of Harvard Business School graduates found that 31 percent of the women from the classes of 1981, 1985 and 1991 who answered the survey worked only part time or on contract, and another 31 percent did not work at all, levels strikingly similar to the percentages of the Yale students interviewed who predicted they would stay at home or work part time in their 30's and 40's.

In response to this trend, I have heard two basic responses:

1) People have the right to choose to do what they want, and an education is worthwhile regardless of how it is later put to use. Further, many highly-educated women and men contribute to society in other ways than through full-time work.

2) People who take a coveted spot for a specialized, elite education and then don't use that education are taking that spot from someone who would dearly love it and make use of it to more broadly benefit society. If you are going to be a stay-at-home mom, you don't need a graduate degree from Harvard or Yale.

I haven't heard anyone suggest that admissions standards or anything else systemic should change, but I have heard people suggest that there is something morally wrong with someone taking a coveted spot in a graduate program if they don't intend to use it in the working world.

What do you think?

Wednesday, June 18, 2008


Two more thoughts about Dads

1) Joe Dickson died last week, a man I didn't know well but one I greatly admired. His daughter, Allison Dickson, was my student, and one of the best students I have had. Though Joe was an accomplished man with an MBA from the University of Chicago and a career in which he helped build up Scott & White Hospital into a premier institution, I knew him just as a dad. Because Allison was in a wheelchair and often needed physical assistance, Joe and his wife, Johnnie, were regular fixtures at the law school and many of us came to know and love that family. Joe would stop me in the hallway and talk about class, and laughter was always a part of it. Even if I had not known him, I would still have greatly admired him for having raised the tough, strong woman his daughter had become.

2) Someday, I am going to create a top-five list of BLS blog posts, and this commentary by Jessica over at Female Parts will be on that list. It is one of the most compassionate, real, and moving pieces of writing I have seen around here. Reading it made me think of Joe Dickson, because even though Jessica's family was fractured and then cobbled together while Joe's was a traditional family of five, there is a pervading spirit of love that flows through them both. Great things are done in many ways, but love of some kind or another is always a part of it.

Tuesday, June 17, 2008


Texans care deeply about the octopi

As usual, Sleepy Walleye has tipped me off to something I did not know. Specifically, some goofball has apparently filed a federal lawsuit against the Red Wings to stop the tossing of octopi at Wings games. Oddly, the plaintiff is a truck driver from Texas in his 50's. It's unclear why he cares so much for seafood, but... well, he does.

Let me make this much clear-- if someone is trying to help the seafood, you really need to sue Gordon Davenport, not the Wings. Since Gordon is coming over for dinner you'll have to excuse me... I have to go buy 9 lbs of shrimp.


Wang, Dang, Sweet Garage Sale!

One real benefit to living in a smaller town like Waco is that you have those loveable, goofball eccentrics rolling around town. Like Hollywood, though, our eccentrics tend to be celebrities of a certain type. Hollywood has Lindsey Lohan and Britney Spears, while Waco has George Bush and Ted Nugent. (Confusingly, Jessica Simpson has a foot in both worlds, since she lives in LA but for some reason turns up a lot in Waco-- I think that her grandparents live here).

Ted Nugent has been following me (or I've been following him, depending on the chronology). We both lived in Michigan until middle age, then decamped for Waco. Ted has a column in the local paper which I read every Sunday (one Sunday, the columnists were me, Ted, and AG Mukasey). Ted's writing varies a lot, but I have to give him credit for keeping it personal; he reveals a lot about his own life in his column.

This week's column was my favorite ever. As you can see here, he's having a garage sale this weekend and will be selling off antlers, couches, and bunches of animal heads. Will I be there? You bet I will!

Monday, June 16, 2008


Rats! Once again, I did not win the Tony for "Most Awkward Kiss" or "Most Exaggerated Limp"

High School Tony Awards Honor Schools' Biggest Nerds, Losers


News Flash! Middle Aged White Guy Sits Around Watching Golf

I generally have a real disdain for golf, both because it serves as a kind of crack cocaine for rich guys, and because when I see it on television it makes about as much sense as cricket. However, this year's U.S. Open was fantastic. Consider the following:

1) The championship came down to two guys named "Rocco" and "Tiger," neither of which is a typical golf name (ie, "Thurston" or "Sterling").

2) Rocco and Tiger actually look like athletes.

3) In the end, these two played a full 18-hole playoff, and then they tied that, leading to a sudden death win on the seventh hole for Tiger.

4) After the match, Rocco and some other Bloods were attacked by Crips (this often happens when they have the Open in Southern California), and then Tiger came and did some amazing jujitsu moves, saving Rocco and sending the attackers to a spectacular death in the Pacific Ocean some 100 feet below.


Wouldn't it be crazy if we just let students at some other school decide who gets tenure?

Cross-posted at Law School Innovation.

[Note to non-lawyer Razor readers: Legal articles are usually published in law reviews, and these law reviews are run by students. It is the students alone who pick the articles to be published. Full disclosure: As a student, I was an editor of the Yale Law Journal, and am aware of the practices at other schools.]

Brian Tamanaha and Brian Leiter, among others, have recently written about the effects of law review placement on legal scholars. Especially in tenure considerations, where an article appears is often considered to be the primary indicator of quality. In the end, this means we are delegating to law students, who have not completed their legal training, who have never worked as an attorney, and who have usually never published anything themselves, the job of deciding who gets tenure.

Consider one law school whose tenure requirement is that the tenure applicant have published three articles, two of which appear in top-25 law reviews. Publishing three articles is not the hard part of that equation-- rather, the real challenge is getting the students at one of those top 25 schools to publish two of them. This is particularly true where the professor is not on the faculty at one of those top 25 schools, because letterhead matters in the initial screening process. The truth is, there will be some play in other areas of tenure consideration (ie, fair-to-poor teaching evaluations can be forgiven, the utter absence of service to the community won't be a stopper), so if the applicant produces those two top-25 articles, she will often get tenure.

Thus, the selection of tenured faculty is left primarily in the hands of students at other schools. Viewed objectively, this is a crazy system. It does have its merits, I suppose, the primary one being that it saves those voting on tenure the hard work of actually reading the articles written by the tenure candidate.

Aside from being a genuinely strange way to pick permanent faculty, this delegation of tenure decisions to students at other schools stifles innovation. The goal of those seeking tenure becomes getting the attention of those students, rather than actual decision makers-- judges, lawyers, other law professors, and legislators-- and these authors pick topics that will most likely appeal to those students.

I'm happy to say that Baylor Law does not have such a requirement, but there have been times that we have been pressured to adopt such a standard. We live in a society that too often seeks objective measures easily gotten, but the fabric of these objective standards is sometimes woven of nothing more than laziness.

Sunday, June 15, 2008


Tim Russert 1950-2008

Tim Russert died this Friday. He was many things-- a lawyer, a journalist, the host of Meet The Press for 17 years, a guy who went to Woodstock in a Buffalo Bills jersey and carrying a case of beer, and an author who humbly portrayed himself as a son to a hard-working father.

In the summer of 2007, I was working on my book in New York City. I hoped that I could be an author, that I could write a book and someone would publish it (dreams that are now coming true), but I had no idea what being an author involved. I would write or research all day, and in the evening I would go to hear authors discuss their work. There were usually four or five events to choose from, and I heard some fascinating presentations.

One night, I went to hear Tim Russert talk about the book he wrote about his father. I didn't know much about Tim Russert, but I walked in the rain from 44th St. to Union Square to see him. It wasn't a drizzle, either, but one of those drenching rains where people in New York run at full pace with newspapers over their heads. Stepping into a bookstore on a day like that is like stepping into a wonderful refuge for thought, a sanctuary not only from the weather but the background noise of our lives that drowns out any single, beautiful note.

Russert gave a wonderful talk. His dad, Big Russ, was a lot like my dad. Russert was kind to his audience, too-- to the person who really couldn't remember their question, or the guy who said that Russert was too mean to a certain Democrat. Listening to him made me want to do two things, both of which I did. First, it made me want to call up my dad. Second, it made me want to put more of myself in the book I was writing, to make it more real and human and personal, and I did that, too.

Tim Russert was many things, and one of them was guy whose thoughts could be worth a long walk in the rain.

Saturday, June 14, 2008


Drugs and Death

I'm a former narcotics prosecutor who believes that narcotics do serious damage to people and society. When I was back in Detroit I went through neighborhoods close to where I went to kindergarten that were decimated by de-industrialization, racism, and finally crack cocaine. Narcotics do bad things to people and communities. I know that both the use of drugs, the sale of drugs, and the locking up of so many people for drug crimes played a role in turning large parts of the East Side into semi-rural areas.

That said, too often the "war on drugs" is also an alarmist war on truth. We try to scare people out of using drugs and support a massive law enforcement effort with exaggerated claims and images. One of those enduring images is that of people overdosing on drugs, lying dead on the pavement after a drug binge of marijuana, heroin, or cocaine.

The truth is that while some illegal narcotics, particularly cocaine, lead to overdoses, they trail the number of deaths caused when people overdose through recreational use of prescription drugs. According to the New York Times today, the Florida Medical Examiners Commission reported the number of people in that state who died directly because of drug use in 2007, by drug:

2,328 Legal Opiods (Vicodin, OxyContin)
843 Cocaine
743 Benzodiazepine (Valium, Xanax)
110 Heroin
25 Methamphetamine
0 Marijuana

Since they are coming from the people who do autopsies, I give these figures real credibility. Of course, they don't take into account two variables. First, they don't account for indirect deaths, including traffic accidents involving those stoned on pot or OxyContin. Second, they don't factor in the total number of recreational users, but I would imagine that the number of marijuana users would equal or exceed the number of OxyContin users. They also factor in only the deaths caused by drugs, not the degraded health caused by (for example) meth use.

So will we see a war on Xanax and OxyContin? After all, they both are in competition with effective alternatives that do not have the same recreational uses.

I think we all know the answer to that.

Friday, June 13, 2008


Haiku Friday with a glass of wine

[graphics courtesy, I think, of The Onion.

First of all, let me give you a summer wine recommendation: Clos du Bois pinot grigio. Sure, it's lightweight and a little grassy, but that's what summer is all about, right? I wouldn't have it with grilled burgers, but it is perfect for sipping on a deck by a lake somewhere.

Now, to the Haiku. Here are the topics:

1) Euro 2008
2) The world's best coffee and/or donut
3) What to wear on the beach
4) Airlines make me mad
5) The pool
6) Summer wine
7) Reality television
8) Grand Jury
9) San Francisco
10) Tomatoes

Here is mine:

"The World's Best Donuts"
For once, a sign that is true--
Grand Marais, MN

Now it is your turn--

Thursday, June 12, 2008


Political Mayhem Thursday: Energy Policy

It was an interesting week for energy policy on Capitol Hill. First, the Democrats tried to pass a windfall profits tax on oil companies, an effort that was beaten back by Republicans. Second, the Republicans successfully defended tax breaks for those same oil companies. Third, the Democrats tried to extend tax breaks to alternative energy producers (wind, solar, etc), but that effort was defeated by Republicans. Thus, unless things change, in the near future oil companies will get tax breaks for exploration while non-oil energy producers will see their government incentives go away. That's a bizarre energy policy at a time when we all know oil production cannot be the answer for energy needs beyond the very near future.

I believe in free markets. Because of that, I think both the Republicans and the Democrats are wrong. First, the Republicans are wrong to use my tax money on incentives for oil companies to drill, when the market is already providing amazing incentives for doing exactly that. Second, it is wrong for the Democrats to want to use my tax money to give incentives to alternative producers, when right now the market is ready to richly reward those same producers.

Does it strike anyone else as wrong that all these politicians want to give our money to corporations in the form of tax breaks? After all, they have to tax me to make up for what they don't get from those corporations (to fund the war in Iraq, which was supposed to help assure steady oil prices).

So, what should our energy policy be?

Wednesday, June 11, 2008


More on Euro 2008!

Euro 2008 continues, with today being "funny hat day." This comment about Euro '08 from RFDIII a few posts down was so intriguing that I had to bring it up to its own post:

I love Euro! I love the annual grudge match between Germany and France. The pomp! The ceremony! Each year, the players line up facing each other and, in a great universal message of sportsmanship, the French players lie on their backs. The German players then take the soccer ball and walk in single file down the Champs Elysees, shaded by those beautiful oaks planted so many years earlier by the French government to shade the Germans coming into Paris (which, I understand, happens quite regularly).

Ah, there's nothing like it.

Tomorrow at Euro 2008 is "biting day," where people from different European countries bite each other in several categories of competition (Tyson-style, erotic, freestyle, etc.).


Nats Fans are Funny and Offensive!

Over at IPLawGuy's blog at, he recently posted about the grimy glass that separates the fans from the Washington Nationals, a "professional" baseball team. In the photo here, you can see IPLawToddler cleaning the glass, actually. IP's post is fun, but the comments are priceless. Washingtonians are offensive, grumpy, and hilarious!

Tuesday, June 10, 2008


The Razor: Your Home for Euro 2008 Coverage!

You may not know it, but we are now in the midsts of one of the most interesting sports events Europe has to offer. It's called "Euro 2008," and it features a series of madcap, crazy contests based on the 1975 American television show "Almost Anything Goes."

The competitions themselves are just silly. Three teams, comprised of five people, both men and women, represent each nation in Europe. They are required to compete in competitive stunts such as:

* carrying a loaf of bread while sliding across a greased pole suspended over a swimming pool,

* balancing an egg on one’s head while riding through an obstacle course in a golf cart, and

* diving into a pool and climbing onto a raft in order to dress in formal clothes.

In yesterday's action, Albania defeated France and Lichtenstein in a competition in which each team took a turn trying to pull a Fiat Panda motorcar up a slight incline while kissing one another. Albania's victory means that tomorrow they will face Switzerland and Moldova in a relay race in which the participants will be nude save for clown shoes, and forced to navigate a course covered with feral kittens. If your cable service carries the BBC, it will be on that station between 3 and 5 am. Enjoy!


Fellow blogger to shock Waco audiences!

Fellow blogger and theater department grad student Dan Buck is directing the Baylor Theater's production of Tape, which will be presented at Theater 11 over in the Hooper-Schaefer fine arts center June 26-28 at 7:30. According to the official web site, the play sounds like it is right up my alley:

When giant pandas Vince and Jon reunite in a Suburban Memphis Motel 6 ten years after escaping from the San Diego Zoo, there's more in store for them than just reminiscing. Vince raises some long-unanswered questions and simmering accusations about an evening Jon spent with Vince's girlfriend (Ling-Ling) a decade ago. Just when the tension couldn't get any thicker, there's a loud growling noise and a knock on the door. What follows is a brutal examination of the past forcing each character to take a closer look at themselves. By the conclusion, audiences will be hard-pressed not to do the same. FOR MATURE AUDIENCES ONLY (due to adult language and graphic zoological scenes).

Monday, June 09, 2008


OK, IPLawguy, it's true...

I might rather play guitar for the MC5, even with the shortened lifespan and all.


Thinking of a new feature...

As you all know, Friday's are for haiku here at the Razor. But, as we enter election season, I'm thinking of starting Political Mayhem Thursday here at the Razor. Inspired by last week's fracas, the plan would be as follows:

1) I throw out some kind of provocative political statement
2) Everyone disagrees one way or another
3) Eventually, the whole thing devolves into a discussion of pandas or lamps or whatever.

What do you think?


I love my job, Pt. 1

There are too few of us who really, truly, love our work. Sure, there's Rick Astley and Snuggles the Fabric Softener Bear, but among everyone else, there is not enough joy.

This was brought home to me this weekend in Detroit. I was in line for coffee behind a couple who were talking about their Sunday plans. It was clear that they dreaded Sunday night, because on Monday they had to go back to work. Probably, how you feel on Monday morning tells you a lot about how much you enjoy your work.

I love Monday morning. I love getting to do what I do. Right now I have a Criminal Practice class that is smart, motivated, and interesting, and every day I get to go in and talk to them about how criminal law actually works. I need to be thoroughly prepared, and I am, but that is fun. For each day, I make an outline of the subject to be covered, usually about 6-9 pages, and go over it several times. Then, when I get into class I hardly look at it because it is already in there, and if I hit my groove, I might not look at it at all.

The other big part of my job is to write and think, and I love doing both those things. It is an incredible thing that if I am driving along and have a thought, I can write that down and people in my field might actually take it seriously.

I have no desire for another job. I do not want to be a dean, or a judge, or anything else. I am what I should be, and that brings me great joy.

Sunday, June 08, 2008


Another great thing about hockey

The Stanley Cup is the best trophy in sports.

The Cup (or at least the "traveling" version of the Cup) is brought to the Stanley Cup games by a guy whose job it is to take care of this one trophy. He carries the Cup in a special case, and handles it while wearing white gloves. Then, everything changes.

When some team actually wins the Stanley Cup, they get real possession of the trophy (well, the traveling version). In the photo above, the Cup is being taken out of Pittsburgh's arena after Game 6 by the Wings' John Franzen and Chris Chelios. You will notice they are carrying it in a shopping cart, and that it is balancing precariously on top of a case of beer. Now that's what should be going on with a sports trophy! (As some of you may remember, I really don't have a problem with unusual uses for sports trophies).

Next, the members of the winning team get to take the Cup wherever they want-- Newfoundland, strip clubs, fishing, Sweden, whatever. (I can guarantee the Wings will take it to all four of these, actually). The hockey news over the summer is mostly about the goofy things the Cup is up to, which is pretty fun to follow. How can you not like that?

Saturday, June 07, 2008


Now That's a parade!

Yesterday's parade for the Red Wins here in Detroit was pretty overwhelming-- over a million people showed up, and the parade route is only a mile long. It is pretty moving to see the cup coming down Woodward-- along with bands and floats and the players and everything else.

Because of the parade, unemployment went way up, and then the stock market crashed 400 points, but that's the price you pay for a good time, people. That's not even the worst thing to ever happen at a parade on this route.

I do have a question, though. How did they have this octopus float all ready to go? Do they store it all year someplace just in case the Wings win the cup? After all, this isn't some poorly made last-minute thing, and it's not like there are other uses for a huge octopus float...


I would hire Robert Little for this purpose...

Whoever is minding the store over at Magnificent Vista has whipped up this intriguing post with the Baylor faculty as a hockey team. His starters seem to be Serr and I on defense, with Counseller, Underwood, and Cordon as forwards. He hasn't come up with a goalie yet, though. Any ideas on that?

My only concern is with his idea of Serr as captain, since two principle duties of a hockey captain are to give pre-game inspirational talks and to argue with the refs, both skills that are enhanced by the gift of brevity. He does have a great attitude for a defenseman, though, and the willingness to go into a corner. Other than that, it's all good.

Friday, June 06, 2008


Leaving politics behind (mostly), let us haiku together...

I actually didn't know that there was a short-lived WB show called "Grosse Pointe," but I find myself there nonetheless, at my parents' house. They're fine, thanks.

But enough pleasantries, let us haiku. Here are the topics for the week:

1) O'bama: Irish?
2) The WB
3) Politics on the Razor
4) Terrible, trashy television
5) The Sex and the City movie
6) Wings win!
7) Now Waco is a sweltering Hell of Summertime debauchery
8) Gore-Tex
9) Hockey pants
10) Summer music

Here is mine:

I apologize
For "squirted" and "goalie pants"
In the same sentence.

Now, you haiku!

Thursday, June 05, 2008


But, but... Lovey, his middle name is "Hussein!"

Now that we are fairly certain that the race for president will be between John McCain and Barack Obama, I can say with confidence that we have the two best candidates in my lifetime. Both men are principled, strong, and (unlike Clinton and Bush) seem to have an authentic ethic of service. IPLawGuy (and, I believe IPSlawguy) worked for McCain for several years, knows the man very well, and still is a great fan. I think either McCain or Obama (or IPLawGuy, actually) would make a good president.

On issues, particularly in my field, I agree more with Obama. I strongly disagree with McCain on the war in Iraq. Thus, while "character" issues are a draw (or may even favor McCain), I will probably vote for Obama.

Here's the thing, though... while Republicans should be talking about the many strengths of their candidate, they seem obsessed with other things, such as Obama's middle name, which is Hussein. To moderates like myself, this is both baffling and somewhat repulsive. Unless you think that anything tinged with the Islamic faith is evil (as many people seem to), that middle name would be an advantage to a president, not a bad thing, for the following reasons:

1) It is humbling. Clearly, Obama struggled as a kid with the name Barack Hussein Obama. He went by "Barry" for a while, in fact. A little humility is a good thing, as is the memory of being the kid who was made fun of. Compassion is a rare and valuable thing in a leader.

2) Because neither Clinton nor Bush ever came up with an energy policy, we as a nation are going to have to negotiate with Arab nations for the next eight years on a variety of levels. Do you think "Hussein" is a problem there?

3) As the child of a Kenyan with an Islamic name, Obama is uniquely positioned to focus on the biggest humanitarian crisis area in the world today-- Africa. Many of those crises are rooted in the conflict between Islamists and others. Eritrea, Rwanda, Congo, Darfur, Nigeria... all places where Obama's background and, yes, his name, will give him the opportunity to do good, and improve on the positive work Pres. Bush has done in this area.



The Red Wings won the Stanley Cup, and the winning goal last night was scored when Penguins' goalie Jean-Marc Fleury accidentally sat on the puck, and it squirted out from under his goalie pants and into the net. No, I'm not making that up. Basically, it was a buttpuck, and a very pain painful one for Pittsburg.

It was a great series, and it drew me back in to the sport. I played hockey for some 28 years one way or another, from pick-up games on the lake to championship teams with a future NHL all-star. I wasn't a great player myself (my best skill was killing penalties), but I did love to play. You don't sit around in the locker room and talk about this, but the skating is just elegant-- a magical balance of strength and balance and speed that makes doing it well an act of joy. Plus, you get to hit people.

Wednesday, June 04, 2008


Interesting reads while waiting for the third period to start...

As I wait for the third (and hopefully last) period of the Stanley Cup playoffs, I came across a few interest reads here on the internet, both related to areas of interest:

1) As usual, David Skeel offers interesting insights, this time on Obama as Prophet. I agree with many of his conclusions, though he was far ahead of me in his thinking on this topic.

2) Today in the 6th Circuit, Doug Berman argued the issue of judges considering acquitted conduct at sentencing, one of those things that always seems to strike my students as unfair. Doug's report is here.

Fortunately, I am headed to Detroit tomorrow, so regardless of the outcome of the 3d period, I'll get to see either a parade or game 7...


Golfer disses hockey

According to press reports, Tiger Woods told reporters that "No one watches hockey anymore." A few remarkable things here:

1) He said this in Detroit, where many people love hockey.

2) He's a golfer (albeit, the best one ever, and an incredible athlete). People do watch golf, but what they see are mostly overweight guys standing around, then shaky camera shots purportedly showing a tiny white ball flying through the sky. Look, Tiger's top competition includes John Daly, who not only smokes and drinks a lot, but does so during competition.

Tuesday, June 03, 2008


4 Things, my friends

1) D'oh! The Wings play tomorrow night, not tonight. At the end of game five, the announcers said the next game was "tomorrow night," but I wasn't paying attention to the fact that it was after midnight. So, GED3 and I ended up watching featherweight MMA.

2) New Baylor blog alert 1: Mission Laughter

C) New Baylor blog alert 2: Tortfeasors

4) New Baylor blog alert 3: The Cougar Den


Recipe: Fake Stanley Cup

I know that the Razor promises recipes, but too rarely delivers. So, today, I offer you this recipe for a fake Stanley Cup:

Step 1: Get an empty water cooler container, like one of those big Ozarka jugs (leave water in, if you want it to be heavy)

Step 2: Get plastic buckets (ice cream, yougort, sour cream etc.) of varying diameter and attach on top of each other with greatest diameter on bottom. Attach this structure to top of water cooler bottle.

Step 3: Top the appartus with a bowl.

Step 4: Cover with tin foil.

Step 5: Walk around neighborhood in Wings jersey hoisting cup and high-fiving confused Texan neighbors. If they seem upset (and, typically, armed), just yell "Go, Spurs!" once, and they will settle down thinking you are not clinically insane, just from San Antonio.


Razor not so good today, Osler tired

If the content of the Razor is a little poor today, well, I'm sorry about that. I was up late watching the Red Wings lose to the Pittsburg Penguins in triple overtime. The Wings are still up 3-2 in the Stanley Cup finals, but they could have put it away...

You know, there are some people here at the law school who would have made great hockey players, had they not been born in a hot climate. I would say all of the following have the right attitude of commitment and toughness:

1) Dan Stokes
2) Those two guys who won the world hog-wrestling championship
3) Prof. Guinn
4) Ed Cloutman
5) Gordon Davenport (who, I hear, uses hockey moves in basketball)
6) Matt Cole

I'm sure there are others, but I'm too busy making a Stanley Cup out of tin foil for tonight's game 6.

Monday, June 02, 2008


SSRN and The Death of Law Reviews-- Should This Make Me a Sad Panda?

Some of you may have noticed that I have added a link to my SSRN papers to the left. So, what the heck is SSRN?

Depending on who you ask, it is either a pit into which we dump scholarship, a useless enterprise, the future of scholarship, the Deathstar to traditional law reviews, or perhaps all four. In short, it is a site where scholars place their papers for public download. Some schools now require all of their professors to put their work on SSRN. I have only a minority of my work there (8 of 21 published articles/books/book chapters), but at Baylor, Rory Ryan and I are the only professors I am aware of who post there at all.

Citations to SSRN are starting to become more common in both articles and court opinions. It could be that such open-access ventures do kill off law reviews. A scholar can "publish" an article much more easily on SSRN than through traditional law reviews, and many professors resent having students play the role of gatekeepers for their publications. Moreover, many of us suspect that more people read our work in this format than in the printed version. On the other hand, law reviews do a good job generally of copy-editing articles (a benefit I am often sorely in need of), something unavailable through SSRN. Significantly, law reviews are also a part of the educational process, introducing students to the world of scholarship.

Would killing off law reviews through open-access publications be bad or good?


The seven constituencies of a law school

I don't want to turn this blog into an ongoing tribute to Jim Chen, but it's starting to look like that is inevitable. Most recently, I noticed his Moneylaw post on "Anna Karenina and the art of academic management," in which he breaks down the constituencies of a law school, and which led to a long period of personal pondering. You can read the whole thing here. His description of the seven law school constituencies is excerpted below.

All happy law schools are alike; every unhappy law school is unhappy in its own way.

There are no fewer than seven distinct constituencies in most law schools. If any one of these constituencies behaves dysfunctionally, the entire school will reflect that dysfunction.

First, university administration must treat the law school as a vital part of the university as a whole. If it treats the law school as a cash cow or ignores it in favor of other initiatives — such as undergraduate education, other professional programs, or athletics — such favoritism will backfire. We're all on the same team, if not the same campus, and success breeds success.

Second, the dean must keep her or his eyes on the right prize: the well-being of the students and graduates of the law school. Acting as "the servant of the faculty" is a guaranteed formula for failure. So is managing from a position of diffidence, as if retaining the deanship took precedence over doing the right thing.

Third, the faculty must be committed to the right values. Law school teaching is the easiest, most rewarding, perhaps even the best job available to intellectually inclined people holding J.D. degrees. And the vast majority of people doing this job get to do it for life. So teach conscientiously, keep up with the law and allied fields through active scholarship, and above all do not treat a faculty appointment as either a sinecure or a personal expense account.

Fourth, staff should work as a cohesive, professional crew. Nonfaculty employees almost invariably do. But law school administration and faculty must take care to treat staff with respect, and there must be some sort of constructive mechanism for correcting instances when this aspiration is not fulfilled.

Fifth, students arguably have the easiest role in ensuring their law school's success. In most cases, doing what comes naturally consists simply of studying hard, playing fair, passing the bar, and getting jobs. But it does help if the students actually want to be at the school they're attending. Schools that are destinations of choice for their students tend to be happy. Schools that are fallback destinations tend to be less happy. Don't confuse this with rankings: a gaudy ranking is neither necessary nor sufficient for student satisfaction.

Sixth, alumnae and alumni should not treat their alma mater as though a law school education rested on some sort of fee-for-service contract. Ideally the relationship between a school and its graduates spans a lifetime. Too young and poor to give cash? We'll take in-kind contributions, even moral support. Even if your own experience was awful, smart leadership today will work with you to make tomorrow's graduates more appreciative of their degrees — and yours.

Finally, the local community must take a stake in the well-being of the law school. Members of the local bar, no matter where they attended, benefit from a robust local law school. Public schools depend on enlightened state legislatures who understand that investments in education pay multiple dividends in the form of future economic development.

Sunday, June 01, 2008


The best video in the history of the world

Bob Darden turned me on to this. As he pointed out, it has the three crucial components of a great video:

1) Surf music
2) Mexican wrestlers
3) Street racing of vintage cars


Central Texas, Photos 1 & 2

The light in Central Texas at this time of year is really beautiful, especially at dusk. At a cookout, I saw some kids running along the top of some hay rolls, and loved the way they were outlined against the sky as darkness fell. This kid was on his way somewhere [you can click on it to enlarge the photo]:

Although the total composition isn't as good, I really like this one because of the boy's arms-- it is like a bird's wings, and I'm sure that as he jumped, that is exactly what he was imagining that they were:

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