Saturday, March 31, 2012


Tomorrow morning: ALL are welcome

Tomorrow morning at 9:15, I will be speaking at St. Matthew's Episcopal church in St. Paul about the Minnesota Marriage amendment. It sounds like a wonderful church, and I am really looking forward to it. You can get the full story here.

I really have come to love the spirit of dialogue I have found among Episcopalians in Minnesota. Certainly, there is not agreement on important issues like this, but there is a very real and heartfelt commitment to discussing it with honesty and compassion.

Here is the short description:

As disciples of Christ, how do we engage in fruitful and respectful conversations about contentious issues of our day? University of St. Thomas law professor Mark Osler will join us during the Faith Forum this Sunday, April 1, to discuss the proposed Minnesota Marriage Amendment and help us explore ways to engage in difficult conversations around questions at the intersection of faith and politics. His presentation, followed by a discussion, will take place in the parish library from 9:15 to 10:15 am.



Look what I found at Bookpeople in Austin, Texas, yesterday...

It still gives me this happy jolt to see it in a bookstore.

Friday, March 30, 2012


Haiku Friday: Bob's Birthday!

Yesterday was Razorite Bob Darden's birthday. If you don't know him... well, you should. He is one of my heroes, a mentor, and he and his wife Mary made Texas wonderful for me. Also, he nearly singlehandedly saved the legacy of black gospel music in America. And he plays drums.

Let's wish him happy birthday in haiku!

Here is mine:

Professor Darden,
Teaches the heroes journey
And walks it, as well.

Now, you go! Make it 5 syllables, then 7, then 5, and the winner gets a bio here on Monday.

Thursday, March 29, 2012


Political Mayhem Thursday: The Health Care Arguments

The arguments before the Supreme Court on the recent changes to federal health care policy (the Affordable Care Act) have certainly kept the pundits busy! I am a terrible prognosticator about outcomes in that Court, so I will not hazard a guess as to which way they will jump, but it has been an intriguing debate.

My own view is that the part of the program that is being examined (the mandate that everyone be insured or face a fine) is necessary to the remainder of the plan. Without the mandate, many low-risk people would not be in the pool of those who are insured, making the other reforms (such as portability) unworkable.

Most people, I think, don't know what the Affordable Care Act does, exactly, so here is a run-down on some of what it requires of insurers and others, beyond the mandate:

1) Everyone who is the same age in the same area has to be offered the same premium, regardless of pre-existing conditions.
2) Medicaid eligibility for poor people was expanded.
3) Statewide health insurance exchanges are established, through which individuals and businesses can compare rates.
4) Many poor people not eligible for Medicare will receive subsidies for the purchase of private health insurance.
5) Minimum policy requirements are established, and lifetime caps on claims are barred.
6) There are also a variety of taxes to support the measure.
7) Those making claims for injuries suffered at Scruffy Murphy's are barred from subsidies or insurance benefits.

[ok, I made that last one up, but the rest are legit]

In short, the measure is designed to broaden the base of insured people in this country in two ways. First, the poor will be included through broadened Medicare and subsidies. Second, those who can afford health insurance but don't buy it (mostly the young and healthy) will be forced to get insurance via the mandate. The second measure funds the first in part, because it broadens the pool of people who are buying insurance.

I think that we have a lousy system, with or without the provisions of the Affordable Care Act. We would be much better served by a single-payer program like they have in Canada. I've spent much of my life living near Canada, and I've never met a Canadian who didn't think their system was better than ours. The people there are healthier, too, by almost any measure, despite a constant diet of seal fat and ice.

Wednesday, March 28, 2012


The Ski Trip

Last week was spring break at the University of St. Thomas, and (besides doing the trial of Jesus in Nashville and Oklahoma City) I spent some time skiing with IPlawGuy in Colorado. Most of it was great, though I did make the mistake of letting IPLawGuy set up the rental car:

Other than that horror, things were great. The weather was sunny, there was adequate snow, and many of my questions about intellectual property were answered (for example, did you know that "Airplane" is actually a registered trade name? It's true!). We ate well, enjoyed many good runs on the slopes, and then ate well again. Not a bad break, actually.

We spent most of our time at Beaver Creek, and one day at Vail. There were no crowds, and no lift lines. There was an unfortunate moment where IPLawGuy decided to "practice the biathlon," but fortunately the rifle he had seemed to come from... well, the same place as the jeep.

Then there was the "scarf incident," in which he lost his beloved Manchester United scarf somewhere on the slopes, where it was found by a drunk Arsenal fan who kept it until a dramatic fistfight that concluded at the top of the clock tower high over Beaver Creek village, after a lengthy chase on skis, snowmobiles, and dogsleds.

In the end, his scarf was recovered, my x-rays showed no severe break, and all was well...

Tuesday, March 27, 2012


The Trial of Christ: OKC

Wow! What a weekend.

As many of you know, on Sunday we performed the trial of Christ in Oklahoma City, and I wish that all of you could have been there. This was the point we have been building towards, and it was wonderful.

Westminster Presbyterian did a wonderful job hosting the trial, with some great promotion and support. It was the perfect setting.

The church was completely full-- every seat was taken and there was an overflow room. Looking up and seeing the 500+ people there was overwhelming. When we were done, I looked out, and I loved what I saw. They got it.

There was, as usual, a fascinating cast of characters. Minister Randall Spindle gave us a great introduction, and U.S. District Court Judge Stephen Friot presided. Joy Tull was great as my second chair, while McAfee & Taft partner John Kenney was wonderful as Jeanne Bishop's second chair. Four members of the congregation (Tim Cheek, Burke Lewis, Jim Robinson, and Steve Tkach) were our witnesses, and Father Charles Blizzard, the Chaplain of Jeanne's alma mater (the Casady School) was perfect as the defendant.

After we were done, we were surrounded by people with encouragement and comments. The most memorable? Probably the woman who simple suggested that Jesus should have been wearing a hoodie.

We are not scheduled to do it again until October (at Regent University in Virginia Beach), but there are plenty of memories to sustain me until then.

Monday, March 26, 2012


Haiku Winner: It's a tie!

We certainly got a lot of interest in the topic of "Songs You Can't Get Out of Your Head!" Our villain this week is Sara Sommervold, who mentioned "My Baby Takes the Morning Train." Grrr.

Our co-winners are Jill Scoggins and Woody. Jill wins for this fabulous suite of poems:

Extreme stress causes
This boomer to hear theme from
Captain Kangaroo.

Over and over,
Jingly, jangly notes repeat
In my stressed-out mind.

Am I seeking to
Revert back to childhood to
Escape from worry?

Whatever. It works.
Mem’ries of Captain, Green Jeans,
Moose, Bunny calm nerves.

Oh to have our old
Zenith TV give me my
Captain K again!

Woody is a champion for this effort, just because his HAIKU go stuck in my head:

de doo doo doo de
daa daa daa is all i want
to say to you. de...

Intriguingly, this was not their first co-championship. In 2006, the all-Waco patriotic essay competition finished with these same two on top, Woody's effort there was titled "My America: A Place Where Doves Cry." It interspersed the lyrics of a Prince song with notations of Woody's favorite things about America, a list that included all of the following:

Brett Favre
Canada (sic. He identified Canada as a "state")
Clown Posses
People named "Don."

Meanwhile, Jill Scoggins submitted an essay titled "I Did Not Order This!" It contained a sharply-worded retort to an on-line propaganda piece by the Taliban.

Both winners received a $9 gift certificate to the IHOP by the expressway, and briefly danced at the celebratory gala.

Sunday, March 25, 2012


Sunday Reflection: Quiet

I've often seen the truth in the idea that God speaks to us in still, small moments.

The challenge is allowing those moments in a life that is full of people, ideas, information, and screens. It is too often one of my failings; I control all of my time, which means I leave none of it available for those still, small moments.

Like so many other things, allowing in what is good requires me to give up some of my power-- in this case, my power over my own time.

I'm going to do better at that.

Saturday, March 24, 2012



What a year for Baylor sports!

Last night, the men destroyed Xavier to advance to the Elite 8 for the second time in three years.

Today, the women's team will try to do the same.

I've always admired the cool competence of Baylor Athletic Director Ian McCaw, and the evidence of his work is well in evidence. I'd note though, that the hire that started to turn the tide, Kim Mulkey, was accomplished by McCaw's predecessor, Tom Stanton.

Will Brittany Griner dunk again today? ESPN sure hopes so!

Friday, March 23, 2012


Haiku Friday: The Song Stuck in Your Head

You know what I'm talking about. Let's haiku about that today. Here is mine:

Oklahoma kids...
Stop torturing me, Hanson!
I deserve Rancid.

Now it is your turn. Just make it 5 syllables/7 syllables/5 syllables, and win, and you get your bio here on Monday.

Thursday, March 22, 2012


Political Mayhem Thursday: So, I was wrong, and Bush, Obama, and Waco Farmer were right...

Those of you that remember the dark economic days of 2008 and 2009 may also remember that at the time I was convinced that the federal bailouts of financial institutions and the auto companies by the Bush and Obama administrations were a mistake. However, I think that time has proven me wrong, and I would like to admit that mistake.

It's safe to say now that a total economic meltdown, which was a real possibility, was averted by the investment of tax money into those sectors of the economy. It does rankle against the prosecutor in me that those who committed greedy errors went unpunished, but there was something more important than retribution going on there-- in the end, those investments went to the greater of good of allowing the economic upturn we are now seeing, and averting an even sharper downturn at that time.

I wish that we could also say that we were now protected against the foolishness that led to those conditions, but I don't think we have. In the end, we may wonder why.

Wednesday, March 21, 2012


Learning From Crack

It's Spring Break time, and I'm busy recovering from all this prosecuting of Jesus that I have been doing (last weekend's trial is pictured above).

The life of an academic usually flows down more than one stream at once, though, and now one of my other projects, an essay called "Learning From Crack," can now be downloaded for free (just click "one-click download") from the SSRN site.

If you have a few minutes, I would appreciate your reading it, and letting me know what you think. It is currently in the status of a "working paper," but it is in pretty good shape. It's written for people who aren't experts, so I hope many of you will find it understandable.

Tuesday, March 20, 2012


Nashville Skyline

When I returned yesterday from Nashville (where we were doing the Trial of Christ before a great and engaged crowd at St. Henry's Catholic Church), I notice that this piece of mine (about the pardon power) had popped up over at the Huffington Post.

The trip was great, and had some funny moments. Yesterday, for example, I pulled up next to an ambulance and noticed that they were listening to a silly pop song-- I think it actually was the theme to HR Puffinstuff-- and then I couldn't get it out of my head all day. That poor guy in the back of the ambulance!

Monday, March 19, 2012


Haiku Winner: IPLawGuy!

Apparently, IPLawGuy has an amazing knowledge of our nation's presidents. Here was his winning entry:

First Term G. Cleveland
Made tough choices, did not pander
Lost election.

And his bio:

IPLawGuy is an innovator in two worlds: Intellectual property law and skiing. In the realm of his vocation, he is well known for a series of cases which defined the “Garofalo Doctrine,” which allows for the free and uncompensated use of celebrity names and images to promote businesses that provide goods or services related to pancakes, time-share condominiums, nail-care products, and interstate trolley service. Similarly, in the field of skiing, he is generally recognized as the creator of the “windmill” technique, by which a skier proceeds down the mountain while pinwheeling his arms madly while exclaiming “Yi-yi-yi!” before colliding with either a row of motorcycles, live bears holding paint cans, or any bendable object that will make the noise “B-wonnnnnggggg!” when struck by said skier.

Sunday, March 18, 2012


Sunday Reflection: On the Death of Greg Tishar

I’m about ready to call a spiritual crisis here.

For the second time in a month, I got an email that I feared to open. This one was about my friend Greg Tishar.

Long-time readers of the Razor know that New York is a special place to me, and much of the reason for that is because of Greg Tishar. More then anyone, he showed me what New York really is, and how to enjoy it—something that has brought me great happiness.

I met him in 1988, when we both worked on Sen. Paul Simon’s presidential campaign. I was in law school up in New Haven, and took the train down to Manhattan for the meetings. Greg was a local organizer, and we became friends immediately. What I loved about him was his wonderful combination of openness and knowingness—he had an open heart and mind, even while he knew the truths that surrounded us in that big city. He became my guide to one of my favorite places.

He worked for the phone company, and was beloved there, but that was never really the core of his being. He was a consumer of the arts, and he was in the perfect place. It was Greg who first showed me the Met’s Family Circle, where the less-than-wealthy opera addicts sat. It was Greg who first led me to the photography at the Museum of Modern Art and the scene on the Lower East Side (which in the 1980’s was a fascinating miasma of cultures). He knew every show, and had an opinion on it; he knew a bar for every mood, and he sometimes got fed up with New York altogether and would decamp to Berlin for a month.

He was there for one of my favorite conversations ever. We were at a party in Fort Green (a neighborhood in Brooklyn), and he motioned me over and whispered conspiratorially “This is going to be good.”

And it was. An argument over a political point had begun, and one guy quoted something he had heard on National Public Radio. His opponent lit into him: “You mean National Pretentious Radio? Ha!” And… it was on, followed by the yelling and then another round, and then the Irish toasts, and finally singing. All that wasn’t crazy; it was just New York, and it was Greg who taught me how people talk in New York, which has done me well ever since. This week when New Yorker Susan Stabile (correctly) told me my clothes were a mess, I knew how to hear that—and I have Greg to thank for that.

He taught me, too, how opera should be like watching hockey—that your passions should be engaged, and you should love the good and hate the bad. I sat by him as he waved his hand over his head like a Baptist church lady yelling “bravo!” and at other times when he booed with the rest of the family circle and yelled (with all kinds of accents) at the failed performers: “Terrible!” and “Go back to Llubjana!” He was not a believer in polite clapping, and to this day I am not, either.

My last lunch with Greg was at the Yale Club a year or two ago. We sat with the usual cast of characters there and told stories and laughed. But then,… his parents died back in Springfield, leaving their house to him. He left the phone company, and the opera, and the MOMA, and all of New York, and moved into that house. That was where he took his own life.

On Friday, I was not a good teacher. In the morning, during Criminal Practice, I lost my place. In the afternoon, in Criminal Law, I started talking about the wrong reading. At the end of that class, I told them why I was not… well, not all there, about Katherine and Greg. I didn’t have some big lesson from it, or long story, I just apologized for not having my all that day and told them why. I trust them with that-- to see me as human, as hurt in this moment, baffled and lost. I often am better, and will be again-- will get back that part of me I borrowed from Greg, the part that can wave my hand like a Baptist church lady and yell "bravo!."

Saturday, March 17, 2012


An expert's view on Staff Sgt. Robert Bales

A comment was just posted to last Thursday's post that was so good it deserves a post of its own- this reflection by Razorite Campbell, who just returned from a one-year tour of duty in Afghanistan:

Understand I'm speaking personally, not on behalf of the Army, so this isn't for wider attribution.

Based on what I know about the case (thanks to CNN), I think it was a good idea to take the sergeant out of Afghanistan for prosecution. No way on earth were we going to turn him over to the Afghan courts for prosecution. As far as trying him in Afghanistan under the Uniform Code of Military's theoretically and logistically possible, but practically speaking, it's a no-go with a big, complicated case like this.

Without getting too much in the weeds, pretrial confinement alone is a logistical nightmare in the States. So is a contested court-martial. I've dealt with both situations several times in the U.S., and they're difficult. Take those logistical challenges and apply them in a combat zone. Trust me, it's not practical to try this case in Afghanistan or Kuwait.

Additionally, you'd likely have to extend your witnesses, prosecutors, and defense attorneys in theatre for a long, long time if the case was tried in Afghanistan - if this case is anything like the cases against the Fort Hood shooter or Wikileaks soldier, it'll take months, if not over a year, to get to trial. Extending deployed soldiers for a few additional days or weeks is one thing. Extending them for months and months is something else entirely.

The one big issue I see right now is evidence. Under the Military Rules of Evidence, a confession alone is insufficient evidence to convict. There has to be evidence to corroborate the confession (and it appears that some sort of incriminating statement was made). If the only other evidence is the testimony from the surviving Afghan villagers, then trying the case in the States just got more complicated. We can bring those villagers to the U.S. to testify, but that brings its own set of challenges (assuming we can even convince them to come). I'm sure that's already been considered, though - the decision to bring the sergeant back to the States was not made lightly, I'm sure.

In the end, though, I think it was the right call.

Friday, March 16, 2012


Haiku Friday: Favorite Presidents

GOP Introduces New "Mystery Candidate" With Paper Bag Over Head

Perhaps I have politics on the brain, but I have always liked an old-fashioned debate on the relative merits of our national leaders. Let's haiku on that today! I will go first:

Michael Scott was clear:
His number one president?
Benjamin Franklin!

Feel free to haiku about any president-- past, present, or future (ie, Robosaorus). The winner, as usual, wins the prize of their bio here on Monday.

Wednesday, March 14, 2012


It's the Razor Ranking Spectacular!

My favorite ranking ever appeared in Senator Al Franken's 2002 masterwork, Oh, The Things I Know! On page 47, he offers his readers a list of "World Religions in Order of Quality." Here is his ranking:

1) Reform Judaism
2) Conservative Judaism
3) Unitarianism
4) Christianity (Mainstream Protestant)
5) Christianity (Roman Catholic)
6) Islam (Muhammad Ali/Ahmad Rashad Type)
7) Buddhism, Hinduism, Confucianism, etc.
8) Judaism (Orthodox)
9) Christianity (Fundamentalist)
10) Islam (Fundamentalist)

What do you think? Does that look about right?

Tuesday, March 13, 2012


Just up at the Huffington Post...

... is this piece about Lent and Politics.


2013 U.S. News law school rankings: A call on Yale Law to drop out

[Cross-posted at Law School Innovation]

Today is the day that the US News Law School Rankings are released. This is not a reason for celebration even where a school jumped up in the rankings. As I have written recently, these rankings create bad incentives and are a poor measure of what we do, at any school.

Big scandals at Villanova and Illinois should have sent a message out about the risks of trying to cheat. But, gaming of the numbers continues. I was shocked to see in this NY Post article that Fordham Law School is boosting its employment numbers by giving almost 15% of its graduates temporary jobs at the school itself. This matters a great deal in the rankings, since most schools in Fordham's range report an employment rate well over 80%-- so a true reporting of independent employment would knock Fordham down the rankings significantly.

We'd be better off without these rankings, all of us.

Treating the US News Rankings like they matter is something that nearly all law schools do, because no one wants to drop out of the system and go to the 4th Tier. We all know it is wrong, and we all keep doing it, even when it is worsening (or, some would say, creating) the crisis in legal education.

It's time for the leaders to lead. Yale Law should drop out of the system, and urge others to follow. I loved my time at Yale Law, value what they do, and will feel the same way about my alma mater regardless of rankings. True leadership is bold, often selfless, and always moves towards what is true and good. It is time for Yale to lead.

Monday, March 12, 2012


Haiku Winner Announced!

Wow! Who knew that there was so much interest in bacon?

Well, actually, we all did (except the vegans). It's just... ok, I'm getting hungry again.

Here are our bacon-tastic winners:

Bob's haiku was a beautiful summary of what bacon is:

My heart is achin'
To have me some more bacon
It's a pork fat thing.

CTL, meanwhile, gave us the most beautiful literary knock-off we have seen so far on the Razor:

One meat to rule them
All, one meat to find them...and
in goodness bind them.

Pete Surdo's legal reference was pure genius:

Damn yummy pig meat!
Even Barbour would tell you:
Clemency denied.
Finally, Renee's wonderful poem brought back some great memories of my own:

They slept by clear creek
In the thrall of mountains.Woke
To bacon's whisper.
Do these four know each other? Oh, yes they do.

Comic-Con 2004 at the San Diego Convention Center was a breakthrough event-- and tickets sold out fast. WIth appearances by the Fairfield Four, Antonin Scalia, Lee Iaccoca, and Larry Bird, the legend was well-earned. It's unclear exactly how this happened, but it appears that Craigslist, several margaritas, a 1991 Toyota Tercel, and $573 in one dollar bills were involved. Somehow, our four winners ended up on the most awesome road trip ever. The story is too long to do justice to here, but suffice it to say that the municipal ordinances of Abilene, Texas, Truth or Consequences, New Mexico, and Yuma, Arizona were all amended in the wake of their visit...

Sunday, March 11, 2012


Sunday Reflection: Forgiveness, process, and faith

At the lenten retreat this week, Susan Stabile and I had an interesting exchange (which she has described already on her blog). She had mentioned that lawyers sometimes have a problem with forgiveness because we are focused on justice; in response, I noted that the problem might actually be our focus on process. That is, we think that there should be a process, a dialogue, which creates an outcome, but forgiveness, at least as Jesus modeled on the cross, doesn't have that. For him, the first step was forgiveness, and there was no repentance first by those who were killing him.

Part of what I was saying was that we should not assume that process is the same as justice. It can create justice, certainly-- but often does the opposite, while giving injustice the appearance of evolved civilization.

I probably could describe this as another false proxy-- that we often view process as a proxy for justice. We should not be so quick to do so. For example, what I have worked on so hard, the federal sentencing guidelines, is a process which has created injustice.

One reason that process can be so amoral is that it serves to remove the powerful force of individual morality from the way we address moral conflicts. Instead of engaging with a problem with our own heart and mind, we hand it over to a machinery that is already in place, an assembly line of decision making.

There is tragedy in that. In sentencing, it results in judges telling a man how many years he will be locked away with her eyes down, doing math calculations. How wrong is that? Plucking out the humanity from the process of judging is like plucking the eyes from a bird-- it does not create blind justice, but a moral blindness that denies the very presence and imperative of God in our midst.

Saturday, March 10, 2012


Week in review

[click on the photo to enlarge it]

Not all moments are equal, and this was a long and remarkable week.

It is late winter here in Minnesota, which means that at once it is warm and there is snow on the ground. You can tell that Spring will come-- something that is often not so obvious up here.

It was a week kind of like that weather-- things in motion, with evidence of past and future mixed together.

On Monday, I got the chance to introduce Baylor Prof. Frank Beckwith as he addressed Lex Vitae and the Federalist Society. It was a pleasure to do so, too. Though Frank and I disagree about some things, we agree on at least as many others, and some of those commonalities are the most important of all. I loved introducing someone from my old life to the people in my life here... there was a balance and wholeness to that.

Tuesday was kind of a blur. At lunchtime, I gave a presentation with Susan Stabile for her lent retreat, on the characters in the Lenten story who were involved with the prosecution of Christ-- the government informant (Judas), the prosecutor (Caiaphus), the governor considering clemency (Pilate) and others. There is a podcast available here. As always, I learned more from what Susan Stabile said at the start of the session that I probably conveyed in my own talk.

After that, rushed off to teach criminal law, and after that took a moment to talk about a weird local case with KARE-TV. Then, at 4, I headed off to appear on a panel with Mike Paulsen, Rob Kahn, Robert Delahunty, and Teresa Collett, where we all talked about Violence and the Bible. What a group! I think it was a fascinating discussion all around (and I mostly listened).

On Wednesday, I got my first look at the school's magazine, the St. Thomas Lawyer. There was a nice story about our commutations clinic, and even a little op-ed I wrote exploring some themes that have long interested me. Finally, there was this great photo, with some of my talented colleagues:

On Thursday, other than teaching, I focused on sending two articles I finished up this week out to journals. A rough version of one, "The Promise of Trailing-Edge Guidelines to Resolve the Conflict Between Uniformity and Judicial Discretion," can be downloaded here. The second, "Learning From Crack," is not yet on SSRN, but will be soon.

Finally, yesterday, I taught in the morning and in the afternoon, and in between had the incredible opportunity of speaking to a large group of students who have been admitted to St. Thomas. I was asked to talk about the school's mission, something I really believe in, and it was wonderful to see how engaged the audience was with that idea.

It's not going to slow down much. Tomorrow morning I am speaking at St. Stephens here in Edina on "The Hospitality of God," (at 10, open to all). Then, in the next several weeks, we will be performing the Trial of Christ in Nashville and Oklahoma City, and at the end of the month I will be speaking at the memorial service for Katherine Baird Darmer at Lakeshore Baptist Church in Waco.

It is the last of these that is heaviest on my heart, and is the one that I know has to be... just right. In whatever still, small moments I have, that is what I think of.

Friday, March 09, 2012


Haiku Friday: Bacon!

Here's one we haven't done yet! Can you tell I am hungry?

Who (besides vegetarians, and vegans, and swine themselves) doesn't love bacon? I you are ever trying to lure me into a room, I would recommend cooking up some bacon. I'll come right in... I can't help it. I'm not the only one, either-- I once saw the Spanish Medievalist rips some bacon right out of a spider monkey's paws at the Cameron Park Zoo. Really.

So, here we go:

Bacon is calling
Sizzle snap, it jumps my way
Just when I need it.

Now it is your turn! The winner gets their bio here on Monday. Just start with 5 syllables, then 7, the 5 in the last line. Have fun!

Thursday, March 08, 2012


Political Mayhem Thursday: Talk about clemency!

Last week, Tennessee Public Radio ran an interview I did with Stewart Harris regarding clemency (you can download the 3/7/2011 podcast from this site or from iTunes here-- the segment is called "Pardon Me! Please!").

Part of that discussion involved something I really believe: That when politicians do unexpected things, we often have ourselves to blame. For example, and relating to my own concerns, it bothers me that no one ever asks a candidate about clemency policy during a presidential or gubernatorial campaign. Then, when Bill Clinton or Haley Barbour uses the pardon power for some boneheaded last-minute deals, everyone gets upset for five minutes.

It would be much better if we would just make it an issue during campaigns-- insist on some kind of statement from a candidate about how they would use this nearly unchecked power.

Is that unreasonable?

[excuse me while I write a letter to Mitt Romney...]

Wednesday, March 07, 2012


Political Mayhem Wednesday: Super Tuesday and the chance of an open convention

I'm really starting to enjoy this primary season!

Last night I listened to a bunch of speeches and watched the returns come in for the Republican primaries in Ohio, Tennessee, Oklahoma, Vermont, Massachusetts, Alaska, North Dakota, Georgia, Idaho, and the weird-looking state where IPLawGuy lives. Gingrich won Georgia, and Romney and Santorum split the rest.

I'll be honest-- I'm surprised that Santorum is still in it, but the fact he has done so well means that he is going to be in it for a while. He's done some things right, including a real attack on what Romney did as governor in Massachusetts.

You know what is weird? For some reason, Romney had convinced me somehow that his bad old liberal days in Massachusetts was somewhere back in the 80's or 90's. In fact, he was governor from 2003-2007. His comprehensive (and, to my mind, worthwhile) health care plan went into place just five years ago! Yup... the one that is a lot like the one the Republicans call "Obamacare."

It's a long shot, but there is the possibility that there may be a new choice who emerges at the Republican Convention in Tampa this August. If so... who should they pick? Sarah Palin? Dwight Schrute? Who?

Tuesday, March 06, 2012



There is a great story in the Washington Post today about the Republican former Governor of Maryland (Robert Ehrlich) starting a pardons clinic in DC, modeled in part after our commutations clinic and the wonderful work done by Marc Spooner, Nancy Ly, Victoria Wanta, and Derek Hanson.

There's one wrong thing in there, though-- I did not argue numerous cases in front of the Supreme Court. I worked on a bunch, and was lead counsel in Spears, but we won that one on the briefs despite it being a split decision with vigorous dissents and a ruling which reversed the 8th Circuit.

It's wonderful that what is happening here at St. Thomas is affecting people like Gov. Ehrlich and former White House Counsel Greg Craig.


Intriguing facts about Edina, Minnesota

1) Apparently, John Denver lived here with his wife, Annie, from 1968-1971, during which he wrote some of his biggest hits, including "Country Roads." The Replacements' Paul Westerburg still lives here. Craig Finn of the Hold Steady lives here, and the song by that group, "Hornets! Hornets!" is a reference to the doofy high school mascot, a... well, a hornet. It's not very threatening. It does have fangs.

2) It is, oddly, the home of Dairy Queen headquarters. Shouldn't that be in Texas? I mean, really?

3) There are many unusual athletes who live or have lived in Edina: Kirby Puckett, Olympic hockey player Jenny Potter, Adam Goldberg, wrestler Ric Flair (there seems to be a lot of that around here), George Mikan, Lou Nanne, Mardy Fish, and a LOT of skiers.

4) The city isn't that big, but maintains 44 parks, three indoor ice rinks and about a dozen outdoor hockey rinks, a water park, two public golf courses and a "golf dome" (whatever that is). The 70-meter ski jump, though, is in the next town.

5) The High School has a 98% graduation rate, and 85% of the students go on to finish college within 5 years.

6) A bunch of movies were shot here (including parts of Fargo), most of which seem to involve winter sports.

7) America's first indoor mall, Southdale, is here, and there is an even fancier mall across the street.

8) Liquor is only sold in municipally-owned stores, which then fund youth activities, creating some strange incentives. Drink for the kids!

Monday, March 05, 2012


Haiku Winner: Sleepy Walleye!

Renee can't win every week! But, again, she gave us a lot to ruminate over, and I love it.

I'm going with this Eden Prairie-based niblet from the Sleepy Walleye:

Status symbol land
A Pleasant Valley Sunday
In Eden Prairie.

For those of you who don't know it, Eden Prairie is a Minneapolis suburb best known as the home of wrestling star Sgt. Slaughter.

Herewith is Sleepy Walleye's bio:

A longtime resident of Eden Prairie, Sleepy Walleye is a retired wrestler who now devotes much of his time to the development and construction of ice fishing structures, which he sells through a small lot adjacent to his home. He outfits the ice shacks with heaters, solar panels, coffee makers, and fish attractors, along with other accoutrement. His wife, Geener, assists him in this task, often adding abstract "art" pieces made out of felt which depict scenes from their marriage and young lives.

All hail, Sleepy Walleye!

Sunday, March 04, 2012


Sunday Reflection: Vocation

I've been thinking about vocation lately, and visiting last week with people like Stacy Rector, Todd Lake, Jeanne Bishop, and Randall O'Brien (all of whom live out a strong sense of vocation) has only deepened those thoughts.

Vocation is something more than a job-- Hulitt Gloer, quoting someone, described it to me once as the place where "your great passion meets the world's great need." It's something more than a job; it is what you do with your life, that thing you can give, and which feeds you spiritually as you do so.

Almost everyone I know who are my vocational heroes, including those four people named above and people like Bob Darden, Susan Stabile, and Neil Alan Willard, exemplify some of the things I see in true vocation. First, there is passion for an idea involved, and also there is something else... the best word for it, that I can come up with, is transgression. People with a vocation almost always are striving to make the world better, and in doing so, they transgress settled expectations. It isn't easy; I suspect that constant accolades are not a sign of true vocation, because the hard work of defying expectations and setting the bar higher is going to upset some people. And humility... that, too, is always part of the mix. So my recipe is Passion + Transgression + Humility = Vocation.

For Christians, the idea of vocation includes the driving force of faith, and a faith which is always (when viewed honestly) unsettling. It is, literally, a cross to bear. And perhaps Jesus's work is the best example of vocation, in the way I have described: Passionate, humble, transgressive, and going directly to this world's great needs. I fall so short of that example (and the example of the others I hold up here) that I am sometimes taken aback. Last week was wonderfully humbling that way....

In terms of what I do, the most important thing is teaching. The best teachers I have known had exactly those traits-- passionate, transgressive, and humble. In my advocacy work, what I do has a purpose (I hope)-- I want to sand down the roughest edges of our criminal justice system. That is what links commutation, my projects with the sentencing guidelines and my work against the death penalty and juvenile life without parole. (To hear me talk about commutation, you can hear my interview today with Stewart Harris at Tennessee Public Radio at 2 pm central time at I'm not great at it yet, but I am learning. Luckily, I have some very good role models.

Saturday, March 03, 2012


Busy, Busy Law Professor!

I have a lot to look forward to this week! Fortunately, it is all happening here in Minneapolis.

On Monday, I'll be introducing Baylor Prof. Frank Beckwith before he speaks to the Federalist Society here at St. Thomas. It will be good to see him again; though we often disagree, I think he is an articulate and important voice on many of the issues I care about.

Then, on Tuesday, I've got two gigs besides my crim law class. At 12:30, I will be talking about those present at the trial and execution of Christ for Susan Stabile's outstanding Lent Retreat in Daily Living. Then, at 4, five of us at St. Thomas (Robert Delahunty, Mike Paulsen, Teresa Collett, Robert Kahn and I) will talk about different aspects of violence in the Bible-- rape, war, abortion, and the death penalty. That event is in the moot courtroom on the first floor of St. Thomas Law school, and is open to all.

After that... well, that's as far ahead as I am willing to look right now.

Friday, March 02, 2012


Haiku Friday: Davey Jones (or similar)

Davey Jones died this week.

He was a member of the Monkees, which was a truly bizarre musical phenomena of the mid-1960's. The band was created to be in a tv show, and the band members were recruited through ads in Variety. In short, they were a fake band that was terrible even at lip-synching (see the video above), yet had some really good music written in their name by people like Neil Diamond, Carole King, and Harry Nilsson.

Here's the wonderful part, though: Even though they started out as fake musicians, they apparently worked pretty hard to make themselves into real ones. It was like a hippy version of Pinnochio. After two years, they were touring while playing their own instruments, and their 1968 album, Headquarters, was actually pretty good. In 1968 they also made the truly bizarre and interesting movie, Head. Head was produced by a very young Jack Nicholson and included appearances by Ronald Reagan, Toni Basil, Dennis Hopper, Victor Mature, Annette Funicello, stripper Carol Doda, Frank Zappa, Terri Garr, Green Bay Packer great Ray Nitschke, the Rockettes, and boxer Sonny Liston. Really. How can you not love that?

So, let's haiku about the Monkees, or at least something kinda related to them (I'll give you some latitude).

Here is mine:

I gotta admire
That they didn't want to be fake;
Pretty rare today.

Now it is your turn-- 5 syllables for the first line, then 7, then 5 again. I'll award the winner the traditional prize: Their bio in this space on Monday.

Thursday, March 01, 2012


Political Mayhem Thursday: The Truest Heart of the Republican Party

Earlier this week, David Brooks wrote a challenging piece in the New York TImes titled The Possum Republicans. In the article, he chastises Republican leaders for failing to haul in the fringe of the party:

All across the nation, there are mainstream Republicans lamenting how the party has grown more and more insular, more and more rigid. This year, they have an excellent chance to defeat President Obama, yet the wingers have trashed the party’s reputation by swinging from one embarrassing and unelectable option to the next: Bachmann, Trump, Cain, Perry, Gingrich, Santorum.

But where have these party leaders been over the past five years, when all the forces that distort the G.O.P. were metastasizing? Where were they during the rise of Sarah Palin and Glenn Beck? Where were they when Arizona passed its beyond-the-fringe immigration law? Where were they in the summer of 2011 when the House Republicans rejected even the possibility of budget compromise? They were lying low, hoping the unpleasantness would pass.

Frankly, I'm not sure there are such things as "Party Leaders" for the Republicans these days. Rather, it seems like the party is composed primarily of two major groups: The social conservatives, and the businessmen. Right now, Rick Santorum has the votes of the former, and Mitt Romney has the latter in his camp. Both groups, of course, claim that they want a restrained government, but neither really means it-- they rely on a growing, active government to achieve their goals. The social conservatives want government to actively restrict freedoms relating to abortion and homosexuality-- that is, they want the federal government to intervene to restrict the freedom of individuals. The businessmen, meanwhile, want government to promote business-- to pay farm subsidies and buy munitions and finance oil drilling through tax breaks. Neither group, once in office, has a track record of actually seeking to shrink the size of government, particularly in relation to individual liberties and overall spending.

Within the party, the hope for a principled and passionate position lies with a smaller third group, the libertarians, who seem to genuinely want smaller government and are willing to accept the price of that-- that a restrained federal government probably won't restrict abortion or obsess over gay marriage or finance agribusiness or maintain a gigantic army or favor one kind of energy over another. Libertarians would allow greater freedoms, and that includes the freedom to do things that may violate the morality of the social conservatives. They would also spend less money on everyone-- including business.

In that, I think Brooks is wrong. The libertarians are considered the fringe, but in fact they are the only ones left with a viable ideology consistent with the mantra of conservatism that government be restrained. It is not the party leaders, but this small fringe who are true believers in this principle, who can save the party (if it really is going to be a party of small government).

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