Sunday, May 31, 2009


Sunday Reflection: God in Nature

I sometimes wonder if there is a correlation between the loss of nature in our world and the decline of faith. For people of many faiths, experiences of conversion and spiritual renewal are often linked to nature as a pure expression of the existence of a higher power. Perhaps it is no accident that as our world increasingly becomes a paved creation of man, we have less respect and relationship with the world's Creator. I have heard many religious defenses of environmentalism, but never have I heard that nature is a force for faith and conversion-- yet, I think that is true.

It certainly was for me. In 1979, I drove a tractor harvesting peas as my summer job in Washington state. I worked at night, often, and there was one night that changed my life. It was something about the sight of Mt. Baker, a perfect halo of cloud above it, that crystallized my thoughts and beliefs about God. I got down in that rich earth, between the rows I was about to harvest, and was humbled and enlivened. My knees were caked with dirt and my eyes full of tears, but I was a new person. It was not nature that convinced me there was a God, nor did I believe that nature was God, but it took a clear view of His creation in a pure form to push me to humility, the humility I needed to give over my heart.

I worry that there are fewer of those clear views now. Are we paving over souls as we pave over the world?

Saturday, May 30, 2009


Trapped in the SkyMall!

Recently I found myself on a lengthy flight with inadequate reading material. Truly desperate, I found myself immersed in the horrifying world of SkyMall magazine, a plump monthly chock-full of bizarre products catering, apparently, to America’s impulse spenders who own incontinent pets. About one-third of the products offered involve pet bathrooms of one kind or another, while much of the remainder cater to amazing lazy people who, for example, are unwilling to paddle to the side of the pool to fetch another beer. Here are some of the wares on display for May of this year:

1) Gravity Defyer Shoes!
These shoes incorporate an incredible new invention: The metal spring. Apparently, there is some part of the world where the spring is a shocking development, and that part of the world is SkyMall. According to the text, these amazing metal springs also reduce foot odor somehow.

2) The Aculife Home Acupuncture Kit.
Really? Really? I can just jab needles in my palm at home instead of paying a professional? Hoo boy. This is the kind of innovation that we get from using stimulus funds on the “Tort Lawyers Full Employment Act of 2009.”

3) “The Peeing Boy of Brussels” Sculpture and Fountain.
If you can only afford one peeing boy statue, make sure he is Belgian! Plus, you can sell a bottle of the results at Cricket’s for $10.50. Also available (for $98.95): “Bigfoot, the Garden Yeti” statue.

4) The Coronado Massage Table.
On its face, this is a fairly palatable product. It’s only when you read the details that the real unpleasantness comes in—the ad claims that the table “supports 1500 lbs.” Which, of course, raises the possibility of massaging a 1500 lb. person. Ick. Double ick. Notably, the ad also hints that the table could be used for “couples massage”—if you are into touching two 700-pounders in love. Crikeys!

5) Map Plates.
Yes, it is… plates that are shaped like European nations. The ad describes the adventure of serving “pasta on Italy,” and “sauerkraut on Germany.” Um, maybe. But it is hard to avoid the fact that Italy is pretty inconveniently shaped to serve anything except an oddly thin boot. And who gets stuck with Luxembourg? Hello, eating disorders and intra-family fisticuffs!

F) Giant Cupcake Pan.
I suppose this could help get you back in good graces with whoever got stuck with Luxembourg for his entrée, but still… isn’t there already a dessert that is basically a giant cupcake, called “cake?”

7) The Passenger Seat Office.
The photo of this product shows a woman driving the car while working on her laptop, talking on a cell phone, and pulling a file from a hanging folder. I think I recognize her from an accident last week on Valley Mills. But, why stop there? What about her cigarettes, beer, and firearms? This thing needs more pockets.

8) The Dark Knight Special Edition Cowl. Where are you supposed to wear this? The shocking thing is that the last Batman movie actually spent a lot of time making fun of dorks wearing dopey Batman costumes.

9) Bassin’ Boat with 4,000 Volt Death-Ray.
Ok, I made this one up… but the rest of them are real. Hello, “Peeing Boy of Brussels!”

Friday, May 29, 2009


Haiku Friday: Family

I was sorting through and scanning in some old family photos last night. It's quite a trip back in time to do so-- every picture was a link to something far away but really familiar.

But some, of course, are from a time before our own. The picture above is of my Great-Grandfather (recognize that hair?) holding my Dad. I suspect my Grandfather took the picture, as it is his style. I never met my Great-Grandfather, but he was a remarkable man, an engineer for Westinghouse who electrified entire provinces and played a role in the creation of radio. I love the mood of this one.

So, let's haiku about our ancestors today, near or far. Here is mine:

He walks on a dune
Carrying that small boy, John,
Summer's too soon done.

Now it is your turn...

Thursday, May 28, 2009


Be kind to the pandas, please...

I was sent this by Razorite Jessica, who apparently also uses toilet paper made of Pandas:


Political Mayhem Thursday: Picking a Justice

It is looking like the Republicans will not set out to filibuster the Sotomayor nomination to the Supreme Court, but do plan tough questioning. I think that sounds reasonable. I do have some thoughts on the process, in part based on the discussion here a few days ago:

1) I don't think political ideology is a reason to reject a nominee. I think Robert Bork was rejected on that basis, and that was wrong.

2) Not every nominee is qualified in terms of experience. Most recently, Harriet Meiers just did not have the qualifications that would have shown her to have the level of analysis and writing that we expect on the Court. That is to say that she did not have public work product that we could look at and say "she's sharp." Bork had that, in spades.

3) With Sotomayor, every Justice but one will be a graduate of Harvard and Yale law schools. I do think that is a problem, because more educational diversity would be an advantage in the same way other forms of diversity are a positive thing.

Wednesday, May 27, 2009


Conservative Law Faculties

In one of the more intriguing posts I have seen lately, Brian Leiter asserts that though some law faculties are dominated by political conservatives (and many more by liberals), that doesn't matter much. I'm not sure that is true, but don't have much experience with which to judge.

Here are the more conservative schools he lists:

Notre Dame
George Washington
U. San Diego
George Mason

Tuesday, May 26, 2009


It's Sotomayor!

Sonia Sotomayor will be the next Justice of the US Supreme Court. My own commentary is limited (I'm blogging from my phone), but what do you think?


The Second-worst picture of me ever taken

Hoo, boy. I was in middle school. It doesn't speak well for my parents that they let this happen, but believe me, they really are good people. This photo is of the first day of school-- my brother and I are pretending to look upset, but my sister did not get the memo, it seems.

Despite the possibility that I might show up looking like that, I will be speaking over the next few weeks about the death penalty in Waco and Austin:

This week I will be speaking at Lakeshore Baptist Church in Waco. Then, at 2 pm on Sunday, June 14, I will give a talk at First United Methodist Church in Austin. Thanks to Baylor Law grad TJ Turner, I'm getting this great opportunity to speak at a great church, which is next to the state capitol.

Finally, I will have a reading at Bookpeople in Austin at 7 pm on Tuesday, June 16-- my favorite bookstore!

Monday, May 25, 2009


The Maggie Tree

I was shocked and happy yesterday morning to open up the Sunday Waco Tribune Herald and see a picture of Maggie Weaver and a story about the memorial to her on the front page. Written with the usual verve by Razor Hero of Writing Carl Hoover, the piece opens this way:

Friends and family of Baylor Law School graduate Maggie Weaver knew they couldn’t replace her dazzling, trademark smile after her death this month from colon cancer, but they could provide something living and beautiful in her memory: a tree.

A magnolia tree, at her request, informally called the Maggie Tree.

They’re raising money to plant one in memory of the 33-year-old Austin attorney and ’07 Baylor Law grad, among other unnamed magnolias standing between the Baylor Law School and the Mayborn Museum Complex’s Gov. Bill and Vara Daniel Historic Village.
Friends are raising money to plant a tree in honor of Maggie Weaver, who died this month of cancer.

I hope people will continue to give to this cause. To donate, here are the new and improved instructions:

1) Go to this link.

2) Click on "Online Giving," which is a button on the left of the screen, under the photo of the distinguished-looking lady.

3) Fill in the blanks, and make sure it is going to the "Maggie Weaver Memorial."

Sunday, May 24, 2009


Sunday Reflection: On knowledge

This morning, my little Sunday School class was joined by Alan Bean, the founder of Friends of Justice. We continued our excellent discussion of Tolkien's correspondence with C.S. Lewis about myth and faith. One theme that Tolkien goes to repeatedly is that man is co-creator of the Earth-- that we have power to shape God's creation for good or bad. Of course, we are the lesser creator (no one claims co-equality), but still we have a role and free will in living out that role.

It is hard to deny that truth. We can destroy life on Earth through bombs or pollution, or not. We can create institutions, cultures, legends, buildings, and art, for good or bad. Much of this world is our creation, using (or ignoring) the talents and principles God created.

That idea, that we are the co-Creators of Earth, is to me perhaps the best reason to pursue knowledge and to intentionally try to make the world better in whatever way we can. It is not only possible, but that is the role given to us by God.

So, should we learn? And when we do, what should we use that knowledge for? If it is to enrich ourselves rather than this world, is that a violation of the trust God has in us?

Saturday, May 23, 2009


Downtown Train

In New York, I spend most of my time above Canal, for one thing or another. Once in a while, though, I love to go to the bottom of the island. It is almost a different city, a European one. Because the southern tip of the island was built up in the 17th century, the streets are locked into ancient patterns-- narrow alleys and byways, barely passable and often filled with pedestrians rather than cars. It's striking that our center of finance is set in such an old-world place, which is so different than the rest of the country. While uptown there are always splashes of green, near Wall Street the palette is grays, which show up wonderfully in the light of morning or late afternoon.

[As always, you can enlarge the images by clicking on them]

The angles of this part of the city are fascinating:

The collections of people, too, are wonderful, as Chinatown bleeds into Wall Street, with statues and schoolchildren:

There is street life, too, in little nooks and crannies in the gray. There will be a noodle shop tucked into an alley, or a patch of cobblestones, places where the sidewalk seamlessly bleeds into the street:

Underground, too, it looks somehow different. I waited for six trains to pass (even though I needed to get somewhere), because I wanted to get these pictures exactly right. I love the way the guy looks up as the train comes in:

It's a world of grays, not black and white. Maybe that really does fit the financial world, that shadow and grayscale are the metaphorical realm in which finance fits best.

Uptown, the beauty can be less stark, even in Bryant Park a half-block off of Fifth Avenue:

Light, shadow, color, love, hate, beauty, life.

Friday, May 22, 2009


Haiku Friday: Food and Spring

Those who love food, the essence rather than the utility of it, have a wonderful passion in their lives-- one that is primal, nuanced, constant, and challenging. You can always tell by the look of their kitchen.

Today, let's haiku about food.

Here is mine:

The skin barely cut
By the pressure of her teeth,
The grape bursts forth, lush.

Now it is your turn...

Thursday, May 21, 2009


Political Mayhem Thursday: Health Care

There are three basic models:

1) Private insurance with government regulation (the current plan)
2) Private insurance plus government insurance available (the Obama plan)
3) A single payer for all health care.

As between the first two, it's complex. We usually think that government is less efficient at providing things than the private sector, but that isn't true with health care. Medicare runs on about 3-4% overhead, while private health insurers have about 30-40% overhead.

So, what should we do?

Wednesday, May 20, 2009


The third worst picture of me, ever

1) I'm cheating at cards.
2) A horrible mustache.
3) Mysterious bruise on nose.


Computer Geniuses in trouble...

A student at Florida A & M got a 22 month sentence for changing over 100 grades through that school's computer system. It appears he also helped out some friends by changing them from out-of-state to in-state status, so that they owe far less tuition.

Some thoughts:

1) I'm kind of surprised this was a federal case. However, there has been a huge increase in federal statutes governing computer fraud/identity theft type wrongs. I think that it seems like a good idea to punish those cases, but rarely is it asked if it must be a federal crime. One of the areas where the idea of federalism has most gone astray is criminal law, because of issues like this that federal politicians cannot resist jumping on.

2) Aren't you maybe just a little bit impressed with this guy? It's too bad he used his skills for eeeevil....

Tuesday, May 19, 2009


Might the Kindle solve two problems?

As a teacher, I see two problems with textbooks-- they are big, and they are expensive. My students look like airline passengers on a flight delay dragging all manner of bags (up to four on one person), and the costs of the books shock me.

For the first time, I saw someone using a Kindle the other day. Amazon makes and markets the Kindle as a portable reading device. It's amazingly thin and readable, and supposedly it is very easy to upload material.

If a student could just put all the texts onto the Kindle... life might be both easier and cheaper.


GED3,Deep Blue Something, and Jury Instructions

Last Friday, GED3 listed a song I haven't heard in years as one of those that was pegged to a place and time for him:

Here are the lyrics from the hook, which is about people breaking up and trying to pin down why they were in love:

And I said what about "Breakfast at Tiffany's?
She said, "I think I remember the film,
And as I recall, I think, we both kinda liked it."
And I said, "Well, that's the one thing we've got."

I've never found anyone who was actually in love who could articulate why in a convincing way. I guess it is an emotion, not a conclusion. It's surprising how that works. There used to be a line in the standard jury instructions defining "beyond a reasonable doubt" that claimed that a reasonable doubt was "one which would make you hesitate in making the most important decisions in your own life." That made no sense to me. We make the most important decisions in our own lives-- whether to buy a car we can't afford, who to love, where to go to school-- for reasons that aren't really reasons at all, they are emotions. You can love someone and not be able to peg it rationally to anything other than that one movie you saw... but the reality is that the love springs from something far deeper and mysterious. You can't stop it, no more than you can stop gravity or hurt or wind. We so want to control our own lives, but especially in those most important areas we just don't, and the heart goes where it will for reasons we can't describe. And then when we do try to describe it, we just sound silly-- "What about Breakfast at Tiffany's?"

Mystery, deep magic, the strongest emotions, we struggle to control. But it cannot be denied.

Monday, May 18, 2009


Star Trek, Sentencing, and Sense

So, like 98% of American, I saw the new Star Trek movie. Like everyone else, I liked it. However, I am left with one burning question:

It's the 23d century. They can travel through space, beam things from place to place, and receive unlimited energy from di-lithium crystals. But, somehow, no one have put seat belts in the Enterprise. Every time they get hit by a Klingon spaceball or whatever, the whole crew flies around like pinballs. What the heck!

Back in the 21st century (even the 20th in many jurisdictions), seat belt use was mandatory, and violation a ticketable offense. What happened to those laws? Did they simply fall away?

Someone explain this to me, please.

Sunday, May 17, 2009


Sunday Reflection: On explaining "The Archies" to a seven-year-old

Not long ago, I was listening to the radio in the car with a group of people that included an especially inquisitive seven-year-old. When the song "Sugar Sugar" came on (I was not in control of the radio), someone mentioned that the song was by "The Archies." At this point, the seven-year-old asked "who were The Archies?"

Everyone did their best to explain. "The Archies, uh, it was a comic book about this guy named Archie..."

"What is a comic book?" the seven-year-old asked.

We did our best to explain that, then went on to try to describe how Archie and Jughead and their girlfriends (and, I think, Reggie) formed a band and then made the song we were listening to.

"But, how did they do that if they are cartoon characters?"

Ugh. So, we then explained the fact that some actual musicians made the song and then they just said it was Archie and the others singing it.

"Why didn't they just say it was by the musicians who really made the song?"

At this point, we had to explain that probably people would rather think of it as written and sung by the comic book characters.

He seemed dubious about the whole thing.

I think that this seven-year-old made our conversation uncomfortable by refusing to have the faith that we count on in seven-year-olds. He just refused to buy that cartoon characters would sing a song. He knew that some actual humans must have written and sung the song, and that probably they weren't a bunch of high school chums in a jalopy.

Later, though, the conversation evolved. We started with truth-- that Archie came from a genuine part of American culture, and reflected a certain part of American life. The people who wrote the comic books and TV show told good stories that people related to. During that time, lots of kids started bands in their garage, so Archie and his friends did that. It was those people who wrote it, not the cartoon characters, but they meant to capture something true, and it was a catchy tune. When we talked about it this way, he seemed to accept it, even embrace it, and next time "Sugar Sugar" comes on the radio he probably will sing along.

Come to Christ like a child? Which one?

Saturday, May 16, 2009


What if the Wal-Mart Dies, Too?

Interesting thoughts on economic de-evolution here.

Of course, these fine men from Akron saw Devolution coming a long time ago:

Friday, May 15, 2009


Another review of Jesus on Death Row...

You can see it here.


Haiku Friday: Songs and Places

This is where I lived my third year of law school-- 43 Sound View Ave. in Madison, Connecticut. It was probably the most beautiful house I will ever inhabit. We had about an acre of land right on Long Island Sound, with a little beach next door and those big rocks jutting out into the ocean. Every night I fell asleep to the sound of the ocean, and would walk on the beach at dusk.

On Friday nights, we often had big dinner parties, and would invite our friends out from New Haven. We'd dance. But that came long after the food (bluefish from the Sound, or duck, or once, lobster, always with salads and fresh bread) and the wine and the laughter.

The last weekend before graduation, about this time of year, we had the biggest party of all. People brought their thesis papers and we burned them in a bonfire near the beach and sang a thesis-burning song we made up. Everyone stayed very very late, and in those late hours we were listening to this song:

It was just the right song, at just the right time. We danced with our friends, not lovers, people we had shared something wonderful with-- thrown together, everyone feeling like the admission department's mistake, then left to read and to talk about important things and to learn from brilliant, eccentric men and women. We didn't have grades, really, but we worked hard because to not have an answer in class would show that someone did not belong, and might not fulfill their mission of fate in a world hungry for change and passion, a world that needed us (and needs you).

We would change partners every song. At this point, the woman I was dancing with (a willowy philosopher) said, "that's what this is-- this is Avalon." And she was right, of course. That song is marked by that beautiful place, that one perfect moment of celebration, and each time I hear it I go there.

So today, let's haiku about places and the songs that remind us of those places:

I hear that song, it's
Where the samba takes me
Avalon, the coast.

Now, you go...

Thursday, May 14, 2009


Political Mayhem Thursday: The BCS

I was all prepared to have this week's PMT be about the Obama health care plan. However, and I'm serious about this, I could not find a single objective and comprehensible description of what that plan would do. Lots of broad characterizations of it, of course, but no actual synopsis of how the plan would work.

So, instead, let's go with something that President Obama has spoken clearly about-- getting rid of the BCS bowl system and having an actual playoff for NCAA Division I football. The primary reason given for NOT having such a playoff is that it would be too disruptive of the players' academic careers. They do have such playoffs for nearly other sport, of course.

So, what do you think? Here are three options:

1) The current BCS system
2) A four-team playoff
3) An eight-team playoff

Wednesday, May 13, 2009


Sad news...

Unfortunately, I think the same thing happened to PFD Panda...

Pentagon Reports Army Mascot 'Liberty' Killed in Iraq


The crowd

Yesterday I drove up to Dallas to speak to a big CLE conference funded by the Texas Court of Criminal Appeals. The CLE (Continuing Legal Education) was for attorneys who defend people charged with capital crimes. It was a fascinating group to speak to, since the things in my book are directly related to their work. I loved having the chance to do that, and it seemed to go well.

One wonderful thing about teaching is that you learn something from every class, every group you address. They bump you a little, challenge you, and make it better, if you let it.

They weren't a bunch of hippies either (not that there is anything wrong with that-- that's my family, pictured above). They were a very impressive group of advocates, including Waco's own Russ Hunt and Guy Cox.

Tuesday, May 12, 2009


The Amethyst Initiative

One of my old mentors and friends, Craig Anderson, has tipped me off about a fascinating movement initiated by a group of University Presidents. Concerned about alcohol abuse, they are urging a reconsideration of the 21-year-old drinking age as one part of a solution. You can read more at their web site.

The debate over the drinking age (which is a form of prohibition) tracks some of the same lines as the arguments over narcotics policy. There is no doubt that prohibition has unforseen consequences that we too often do not want to see, since it complicates things.

Speaking of policy, I found out Sunday that the Ohio State Journal of Criminal Law, which is actually a peer-reviewed journal (that is, professors rather than students pick the articles), will be publishing After the Implosion: Guidelines for a New Era (available for download here). Whoop!


Grosse Pointe Blanked

Sunday's New York Times reported on the economic problems hitting Grosse Pointe, Michigan. It's sad to hear.

Of course, it seems that at least some of the article, er, may have been tongue in cheek. According to the story, it seems that Grosse Pointe's most extreme hardships are the possible loss of a dumpy tennis club and greatly diminished dining numbers at the country clubs.

Monday, May 11, 2009


It's true. Some people call me "Maurice."


Now THIS I'm sorry I missed...

The Night of a Thousand Stevies. Seriously fun, I think.



Last night, the memorial for Maggie Weaver was held on top of a parking lot by a sports bar. The setting was actually much more beautiful than that makes it sound, as Maggie well knew. Many people gave wonderful, moving, and true messages. Maggie was not a religious person and it was not a religious service, but it was spiritual in that it was very true to her spirit, and that is as good as it gets.

At the risk of turning the blog into an obituary listing, I'm sorry to report that Mary Underwood, Jim and Bill Underwood's mother, passed away yesterday. Services will be held tomorrow at 7th and James Baptist Church in Waco at 3.

Sunday, May 10, 2009


Sunday Reflections: Mercy and kindness

There are many times I was unkind to people, and deeply regret it now. At the time, those unkindnesses seemed important or "honest" or necessary, and too often that was not true as seen through the wisdom that comes with time. On the other hand, there is not a single kindness or instance of mercy that I have come to regret.

These are things that come to mind as I get ready for a funeral. They should come to mind more often.

Saturday, May 09, 2009


New Workings of the local Osler

Looking for an interesting short article on sentencing to peruse? If so, might I recommend After the Implosion: Guidelines for a New Era, which you can download here.

After the Implosion builds on my two most recent articles, Seeking Justice Below the Guidelines: Sentencing as an Expression of Natural Law (available in draft form here) (which will appear in the Georgetown Journal of Law and Public Policy, and Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip, available here, which just came out in the BYU Law Review. The two prior articles explain why we should implode the federal sentencing guidelines, while the latest one explains what should replace them.

Because if you break something, you should always be ready to replace it!

Friday, May 08, 2009


Haiku Friday: Trees

Live oak reaches out
One long arm towards a man
Who knew the acorn.

Now it is your turn:

Thursday, May 07, 2009


How to Give for the Maggie Tree-- Now made more simple!

UPDATE: Here is the simple way to give to the Maggie Tree:

1) Go to this link.

2) Click on "Online Giving," which is a button on the left of the screen, under the photo of the distinguished-looking lady.

3) Fill in the blanks, and make sure it is going to the "Maggie Weaver Memorial."

Julie Corley down in the Baylor Law Dean's suite has kindly set up a fund to plant the Maggie Tree. Here are the instructions:

Direct gifts to:
Maggie Weaver Memorial, Baylor Law School, One Bear Place # 97288, Waco, 76798. They can also go online to give by credit card or payment plan. That can be done at (just enter Maggie Weaver Memorial into the fund directive).

I hope that many people will support this project-- it honors someone who has touched many of our lives, and is something she wanted. Too often, memorials to people seem disjointed from their lives and desires, but planting this tree really was one of Maggie's last wishes.


Memorial for Maggie Weaver

Here are the details, stolen from Chris' blog:

Maggie’s Memorial Service will be held this Sunday at 5:30PM on the top of the parking garage at 1717 West 6th Street, above Third Base. Please come. I’ll post more information as we get better organized.

Please, please share this with friends and family (and professors and doctors) who would want to attend. Help me get the word out.

In case you are so inclined, there will be an opportunity for you to speak a tribute or to tell a story. Prep now.

We know that Maggie prefers us to focus our collective power on a creating positive impact on the world and those around us. Thus, in lieu of sending flowers, we will be selecting an appropriate place where donations can be sent to do the good we think Maggie will approve.

I, for one, have never been to a memorial service held over a sports bar, but I really did not expect anything too predictable, or it wouldn't fit Maggie.


Political Mayhem Thursday: Life Without Parole for Kids

Right now, the majority of states and the federal government now allow a juvenile to be sentenced to life without parole. This issue is now getting more public attention, as it should, since the Supreme Court agreed to hear two cases (Graham and Sullivan) which challenge the constitutionality of such a sentence.

I'm against LWOP for the same reasons I am against mandatory (or mandatory-ish) sentencing guidelines and the death penalty despite my generally pro-prosecution leanings: I think there needs to some measure of mercy in any sentencing system, and that redemption must always be a possibility.

Almost 60% of the juveniles who receive life without parole are first-time offenders, and many are in prison for crimes short of murder. Interestingly, the only other country which hasn't signed a convention outlawing such sentences is Somalia. So, it's us and the pirates...

Is life without parole for a kid defensible?

Wednesday, May 06, 2009


Supreme Court Candidates-- cast the net widely!

With the retirement of Justice Souter, President Obama will be making the first of what will end up being two to four high court appointments.

While you often hear Souter characterized as a "liberal" justice (despite being appointed by Pres. G. H. W. Bush), his judicial philosophy is more complex than that-- much as Justice Scalia's philosophy is much more complex and intriguing than the caption "conservative" describes. In short, Souter has been perhaps the foremost proponent of stare decisis-- that is, of respecting the Court's prior opinions. He often writes about the importance of settled expectations, for example, and this is a part of his thinking in a wide variety of cases.

If Obama chooses a straightforward liberal (and I think he will), that voice will be probably be lost.

So, who should he choose?

Tuesday, May 05, 2009


On cat feet

Yesterday, Maggie Weaver died. There is a lot about death I don't understand, though it is the second time in a week I have written about it-- first the death of one who sought it, and now the death of someone who fought hard for life.

Last night I got a text message from Maggie's good friend Flo Rueda, which said, "her last wish was to have a magnolia tree planted at the law school. Help me get that done." I wrote back asking why she wanted a magnolia. Flo responded "She said it sounded like 'Maggie.'"

We should get that done, in her memory-- plant a Maggie tree.

When I moved to Waco, the new house had a beautiful magnolia tree in the front yard. It was not something that existed in Michigan, and the damn thing constantly surprised me. Its leaves fell off, but not in the Fall; it just shed leaves whenever it wanted to. It was as if the magnolia family had not gotten the memo that went to all of the other trees, but that did not change its beauty one bit. When it bloomed, too, it was remarkable. Cars would slow down, and I would sit on the front step because at its best, when it put on a show, there was nothing better in the world, nothing more beautiful or true or compelling.

Then, over the course of a year, it died. The tree guy had to convince me that it couldn't be saved; I didn't want to believe it. They came while I was at work and cut it down and when I got home there was a hole in the front yard, kind of a dip in the lawn, and a lot of wood chips. They said the hole would sink deeper at first, but then if I put some dirt in it, things would even off and eventually I would never know there was a tree there. So I waited, and the hole did get deeper and more noticeable, so I filled it and waited. The hole re-appeared, so the next year I put in some more dirt and planted grass. There must have been something about that particular magnolia that the tree guys did not understand, because I never could get that hole to go away, and it is still there. Eventually, I just accepted it-- that this hole in the yard was going to be there, and that the balance between having the magnolia gone and yet having its legacy written so clearly onto the Earth was not something I could control. I had to accept that I was not even the Lord of my own yard.

So, yes, let's plant a magnolia. Let's make that happen.

Monday, May 04, 2009


Maggie's kneecaps...

Are telling a sad story which breaks my heart.

It was not so long ago that she was the liveliest student at Baylor. Her husband, Chris, is a wonderful writer, especially given the overwhelming sadness of the story he is telling.


A Singer's View of Detroit

My old friend TallTenor is in Detroit to sing with the Michigan Opera Theater. I have found his reflections on the city fascinating. TallTenor most recently sent me a message yesterday which I thought reflected some interesting ideas, and is copied below:

I was writing someone earlier today that the decline of "Detroit" (speaking metaphorically about the auto industry more than about the city itself) seems to me to be very much like my father's decline as he aged. He tried so very hard to hold on to all the activities and interests that he'd had (as opposed to letting them go gradually, once he could no longer do them) that when the cracks started to appear, his whole life kind of shattered at once.

Though I've not had to deal with my own aging - yet - I hope that I will be able to realize over time that it's better to embrace the things I will still be able to do, rather than become bitter about the things I can't. As for "Detroit," it seems to me that while both the labor unions and upper management bear the blame, more of it lies with upper management, which had neither the vision nor the desire to think outside the box and look toward a viable future.

Which, if you think about it, is kind of the American Way since the 60's... live for today. I cringe when I watch Wall Street types on the news or business news channels, talking about which companies are good long-term, buy-and-hold investments... when these are the same guys who tank a stock that doesn't do better than it did last quarter, or than in the same quarter a year ago.

Those yahoos are talking out of both sides of their mouths, telling us to do one thing when they're doing another, all to shave a few extra dollars of profit for themselves.

Sorry... here endeth the sermon. Gotta get ready for today's musical rehearsal w/orchestra, anyway.

Sunday, May 03, 2009


Sunday Reflection: The trump card

Yesterday, I got a message from a very good journal saying that they wanted me to write a piece on "sentencing alternatives." I agreed immediately, and started pondering.

This morning, I had a great idea. I'm sure they are looking for small, manageable ideas, such as intensive supervision as an alternative to imprisonment. My idea was not like that.

Instead, I imagined two scenes occurring simultaneously. In the first, the doors to the prisons swing open to release many low-level drug defendants. The second scene is of a Predator drone flying low over hills in Mexico before releasing a missile, which destroys a car and the two men who are inside of it. These two scenes are inextricably linked;the first is possible because the second is accomplished.

The idea is that if we want to stop drug trafficking (and I do), sweeping up low-level operators does not work because they are so easily replaced. We use weight of drugs as a proxy for culpability, which is a terrible match and brings us mostly mules. A much better proxy is who makes the money off of the trafficking, because those with the most skills and power will get the most money. So, use the tactics we use against Al-Qaida against those people who profit the most from drug trafficking, most of whom are in foreign countries. Send a Predator in and kill them. Boom. Done. One killing on foreign soil would do more good than 1,000 arrests here. Foreign nations such as Mexico may well welcome this, as they are losing sovereignity now to drug traffickers. Plus, we are already doing this to counter known terrorists- the template is already established.

It is a strong, provocative idea. I won't write it, though. Much as I believe that such an operation would be both just and efficient, my faith tells me that killing people in this way is wrong. This is another form of the death penalty, and you know how I feel about that. It would fit my desires and politics better if I could propose this, but sometimes we must let our faith trump our politics. When we let the reverse be true, and politics drives our faith, we are nothing more than idolators who create a God in an image we desire, to be manipulated as our needs direct. It is hard and challenging to believe in a God that is bigger and smarter and more important than we are, but if He is not all of those things, is he a God at all?


Innocence Project II

DNA Evidence Frees Black Man Convicted Of Bear Attack

Friday, May 01, 2009


Haiku Friday: Eulogy for a Suicide

She and I were summer associates at Mayer, Brown and Platt in Chicago. It was the summer of 1989. She was from Alabama and talked about a boyfriend there, but we never did see him.

We worked for a partner named Mark Levy, an appellate specialist. (When I got back to school I looked up his photo in the law journal offices, and there he was in the front row, with bushy hair and Hillary Clinton). He did not ask too much of us. Those were the golden days for law students, and the work was thin while the fun (and the pay) was thick. We summer associates (from Cambridge and Palo Alto and Champaign and Madison) read and we wrote, and then we went out into that big bright place with eyes open wide, welcomed by a city which pulses with life in the summer.

At Wrigley Field, we soaked up the afternoon sun and a ball came our way, coming down out of the sun, and I stuck up my hand but She got there first and became that person who made the nice catch in the stands, the smiling woman in a blue silk sheath dress. She gave the ball to a kid in a Cubs hat, and he wrapped his whole body around it like the most precious thing in the world, which it was.

The guy from DePaul showed us some good places to go after work, and we settled into one, a bar out near Wrigleyville which had a varying crowd and a jukebox with one song by the Rolling Stones (“Waiting on a Friend”) and 143 old-school R & B favorites, songs by people with old-school names like Otis and Gladys and Aretha, Mavis, Al, and Marvin. After a few rounds and some time feeding that jukebox, we would dance. Because She learned to dance in the South and I was the only other one who had, we danced the way you do in May at Nag’s Head, on a porch after dark. I knew to spin her in to my hip and take her other hand, her fingers holding mine next to her waist; knew to pop my wrist a little on the off-beat to send her back out, her hair a sheet as she spun. She taught me new things, too, Alabama things: to use the tip of my little finger to trace the back of her neck as she spun back out, the lightest of touches. We’d dance, surrounded by our friends, as Gladys Knight sang:

Running to the door [Pips: Running to the door]
Peeping at the window [Pips: Peeping at the window]
Hoping to see… only you.
Listenin’ for the phone [Pips: Listenin’ for the phone]
Checkin’ out the time [Pips: Checkin’ out the tic-toc]
Counting every second down,
Hear me now…. 5,4,3,2,1!

Then we would leave as they shut the door to close, She ducking into a cab while I walked off the other way.

The next day, She and I would be in Mark Levy’s office, hip to hip on his couch. He looked at one of my drafts, turned his head sideways, shook it. “This is, wonderfully… elegantly… wrong.” The rest of the summer She loved to use that phrase to describe many things—what I ordered, the way I stacked up too many books, the state of my hair; it was all “wonderfully… elegantly… wrong.” It was, of course, always true.

At the end of July the firm had its biggest event of all at a large estate in one of the northern suburbs, a stone mansion with long, sloping lawns. There was a tent and a band, wine, champagne, tables of food. We summer associates soaked it all up and imagined living in that neighborhood of quiet cars and big trees. It was one of those Midwestern summer days that settle in early with both heat and humidity and a stillness that permeates everything. I ate the food and drank the wine, talked to the partners, and sang along with the band as the sun went down. As I went back to the tables, She came by, a glass of wine in one hand and two cigars in the other. She nodded my way, and I followed her down and away from the party. We sat on the ground on the other side of a hedge, looking out over yet another lawn and the lake beyond, still visible in the twilight. She handed me one of the cigars and lit it, taking the other for herself.

“So, he wants to get married,” she said.
I wasn’t sure what to say.
“Should I do it?” She asked.
“Do you love him? Is he kind to you?”
“Yeah,” she said, thoughtfully, “he is kind to me. He has always been that.”
“Then you should.”

We sat in the darkening and talked about other things until we heard the band finish its last number. We stood to go back, brushing the grass off of our clothes. As we started back, still behind the hedge, she stopped me.

“Do you want to be the last other man to ever kiss me?”
I am basically a shy person. “No. No, I... we didn’t do that all summer…”

Her right hand, the one that had held mine at her waist so many times as Mavis Staples or Aretha or Marvin Gaye sang, reached out and wrapped up my tie in a loop once around her hand, a graceful strong turn. It pulled me close, and I was there an inch away, and She tugged until I kissed her, and She tugged again after that.

And then we straightened ourselves and turned to see Mark Levy walking on a path a few feet away, so close that he could not have missed what had happened. He nodded, the glimmer of a smile in his eye, and looked down to smile more broadly as he walked on.

And that is the man, that Mark Levy of Kilpatrick Stockton, who killed himself yesterday in his office. It is an act that makes no sense to me, not in a world that still contains Al Green and the heat of summer and Wrigley Field and brilliant moments that come up upon you, all in a rush.

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