Sunday, November 30, 2014


Sunday Reflection: Talking about mercy

I've been thinking a lot lately about mercy in the law.  I wrote a piece about clemency for the Washington Post with Rachel Barkow which ran on Friday, and this Wednesday I'm speaking about it at Yale Law. 

Sometimes when I talk about clemency, I describe it as a vehicle for mercy.  Not everyone agrees with that, but I have good sources: for example, that's what Alexander Hamilton called it in Federalist 74.

Clemency isn't often about innocence-- it is almost always about shortening sentences or pardoning convictions for people who are guilty and legally sentenced.  As a Christian, I'm comfortable with that.  It is a faith for the guilty who are given grace, after all.  It tugs against our sense of fairness, though, which tells us that people who do the same thing should serve the same sentence.

One advantage I have in thinking about it this way is that through the work of my students, I actually get to know some of the people who are seeking clemency.  I get to know their history, their family and their hopes, as well as everything they have done to the detriment of society.  The experience has changed me, too.  I am slower to judge, and more mindful of the breadth of a life.  Much more than before, I am aware of the ability people have to change.

In all, it has made me a better person. I worked in a machine of justice, and it made me a worse person in some ways.  Now, working in a system of mercy, I think it makes me better.

Saturday, November 29, 2014


The $300,000 speech

I was fascinated by this CBS News report on Hillary Cinton's arrangements for a speech at UCLA.  I'm not so bothered by the various little details, but the fee!  $300,000!

The story is more complicated than it might first appear, though.  The was to go to the Clinton Foundation (a charity), which is good, and it was taken from a foundation that supports UCLA (not the school itself).  Moreover, she was speaking at a fund-raising dinner for that UCLA foundation, which netted a lot of money from it.  So, in the end, she transferred money to one charity while raising a lot of money for another... and that's not so bad, right?

Friday, November 28, 2014


Haiku Friday: Grandfathers


[Above is a painting my dad did of his own grandfather; it hangs in my dining room where I see it every day, to my great joy]

As I have noted before, my dad has been blogging over at the web site of the Dirty Dog Jazz cafe.  Recently, he wrote a wonderful post about his grandfather:

My grandfather was a tall big boned Wisconsin farm boy (think Gary Cooper) who went on to college and then worked at the Westinghouse Corporation as a civil engineer. He spent years bringing electricity to the southern tip of South America. He had a horse and a dog as company as he inspected the lines. He was a vigorous yet gentle man who had plenty to do until he retired at 65.  He and my grandmother started traveling to all the places they had dreamed of in a small trailer. They would park it on the vacant lot next to our house when they would come to visit us. Bompa was restless. On their travels he saw the effects of the depression. He knew that the severe economic cycles had been  destructive and needed to be leveled out. He threw himself at the problem, he stopped traveling, and he began studying economic theory nonstop. He thoughtfully came to conclusions,  wrote papers, he met with important people and he eventually was invited to speak at universities and with corporate and civic leaders. He changed the conversation with his ideas. He lectured on economics into his 90′s. He never stopped being a good friend and an inspiration to me.

Let's haiku about grandfathers today... it can be a biological grandfather, or one who just played the role regardless of family relationship.  I will go first:

Late in his lifetime
He built a computer, bam!
He knew the future.

Now it is your turn... just make it 5 syllables for the first line, 7 for the second, and 5 for the third, and have get in on the action!

Thursday, November 27, 2014


Happy Thanksgiving!

So much to be thankful for... among the many things, the people I get to interact with here.  I love the people who write and haiku and opine-- what an eccentric and brilliant group! 

I am up late, waiting for my pies to come out of the oven.  I noticed that the Washington Post has put online the clemency piece that Rachel Barkow and I wrote-- it will run on the print edition on Friday.  I'm sure we will get some interesting responses!

Wednesday, November 26, 2014


Political Mayhem Wednesday (since tomorrow is Thanksgiving)

Yesterday, a number of students came into my office to ask what I thought of the decision of the grand jury in Missouri regarding the possible charges against Ferguson police officer Darren Wilson.  The grand jury, as we all know, declined to bring an indictment against Wilson for shooting Michael Brown.

Here are a few of my thoughts:

1) Some commentators have said that the proceeding was "unusual." That's true, relative to most grand jury proceedings.  Most of the time, a prosecutor goes in with the goal of getting an indictment on a specific charge or set of charges.  She presents evidence, and then asks for a true bill (that is, an indictment).  That did not happen here, because the prosecutor apparently took no position on whether a true bill should issue or not.   That's unusual relative to most other grand jury proceedings, but it is NOT unusual in politically-charged cases where the prosecutor is not strongly invested in an indictment.  It is pretty typical, in situations like this, for a prosecutor to avoid making the charging decision by leaving it to the grand jury.

2)  However, that doesn't mean that the prosecutor doesn't expect a negative outcome.  By not seeking an indictment, the prosecutor sends a strong signal, in fact.  Think about it from the perspective of the grand jury:  for week after week, month after month, prosecutors come in with sharp, focused presentations that clearly seek an indictment.  Then, after all that, a prosecutor comes in and just presents some mixed evidence and doesn't take a position.  Of course that sends a message!

3)  I still don't know what happened between Brown and Wilson.  I can't opine on that exchange.  Neither do most of the people who have spoken sharply and conclusively about it, on both sides.

4)  As a symbol, Ferguson represents something we all do know, though. It is this: there is racism in our society.  Blacks are not treated the same way as whites by the police in some (maybe most) places.  We can't pretend that we have gotten beyond race, because it just isn't true.

Tuesday, November 25, 2014


Recipe Time! IPLawGuy's Turkey In a Can

This recipe comes from IPLawGuy (pictured above), who makes a great turkey every year in his own unique way.  

Here is what you will need:

1 three-foot-long wooden stake
1 brand new trash can (not galvanized)
1 big bag o' charcoal
A jumbo jug of lighter fluid
9 beers (14 if you are buying Little Kings)
Aluminum foil (he uses official Dale Earnhart, Jr. foil, but you can use inferior brands if you must)
1 18-19 pound turkey
12" Mullet wrench

Next, here is the plan:

1)  Go out in the back yard.  Clear off an area about two yards wide-- just shove all the stuff over to one side so the ground is clear.  Begin consuming the beers.  Make sure you get all the stuff like Barbies and Nationals' jerseys out of the way. 

2)  Put down some aluminum foil to cover the ground, about 3 feet by 3 feet.  Or, 1 metre by 1 metre if you are in Canada.  But why are you in Canada for Thanksgiving?  That's just stupid.

3)  Pound the wooden stake into the ground right in the middle of the aluminum foil.  IPLG uses a mullet wrench for this.  You can use a hockey stick or a muffler if you want.

4)  Now, get the charcoal burning real good in the lid of the trash can.  Use a LOT of lighter fluid.  A LOT.  In fact, just make a little lake there in the bottom of the lid, and it will go up real nice. 

5)  Place the turkey on the stake, legs down.

6)  Now put the trash can down over the turkey and the foil.

7)  Once the coals are ready, dump them on top of the trash can and around the sides.  The bottom of the trash can should have a nice lip on it there, so it's like a little hibatchi or something.  Have some more beers.  Be careful when dumping the coals, and use oven mitts to handle the lid of the trash can, because lit coals are hot.  Really hot.

8)  Let it cook in there for about an hour and a half or so.  Don't peek while it is cooking.  The coals will die out on you about then anyways.  

9)  Slowly tip up the can and remove the turkey.

Garnish and serve.  Serves three.

One of the beautiful things about this recipe is that it uses every part of the trash can, so nothing goes to waste.

Important note:  Here are a few things IPLawGuy has learned from years of experience:

-- DO NOT use a plastic trash can
-- Don't drink all the beers at once, before you pour the coals
-- Don't leave your Nationals jersey close to the flames
-- Make some other stuff for dinner, too!

Monday, November 24, 2014



Medievalist, I loved this one:

It's rainy, cold, dark,
November, a time for rest,
Slow down and give thanks.

And Anonymous was wonderfully happy!:

This year has brought love
In unanticipated
Form. Such joy abounds.

Sunday, November 23, 2014


Sunday Reflection: Cleaning

Yesterday, I tried to get my house in some order, since my entire family is coming here for Thanksgiving this year.  I tried to put away stacks of books (it was surprising how many of those there were), and cleared things out in the basement so that people can sleep there.

It went slowly.  In part, that was because I stopped and read old letters and found things inside of books.  It turns out I have saved a lot of letters, and reading them again was like getting a glimpse of myself two or three decades ago.  It wa like opening a time capsule, if things had been put into the capsule at random.

What surprised me is how similar I am now to the person described in those notes.  I would probably tell you (if you asked) that I am a completely different person now, but I'm not so sure.  Yes, I am a happier person, and more productive, but I have the same insecurities and challenges and strengths, for the most part.  There is an eternal part of who we are, I suppose...

Saturday, November 22, 2014


The Game

Today is pretty much an off day in college football:  #1 Alabama, for example, is playing "Western Carolina," which is apparently a thing, and #2 Oregon is playing Colorado, which I'm pretty sure is a club team.  

However, there is one game today that matters, at least to a few people: Harvard-Yale is going to determine the Ivy League championship, as the old old rivalry enjoys a new moment of relevance.  ESPN's weird but mesmerizing "Gameday" show is going to be live from Harvard all morning.  

Football aside, the Harvard-Yale game is kind of renowned for pranks.  A classic was this one in 2004:

Harvard's years of retaliation included this fake Yale admissions video:

Which led to this…

I wouldn't be surprised if something interesting happened today...

Friday, November 21, 2014


Haiku Friday: Giving thanks

There really is no other good topic for this week, or one more appropriate.  Thanksgiving is my favorite holiday of all; I love the idea that animates it, the absence of commercialism attached to it, and the sense of quiet and love that can come with it.

Let's haiku today about something we will thanks for this year.

I will go first.

These students I teach:
They each bring their own wisdoms
Some days I just sow.

Now it is your turn: write about something you care for, and use the 5/7/5 syllable recipe....

Thursday, November 20, 2014


Political Mayhem Thursday: Executive Action on Immigration Policy

The New York Times is glad that President Obama will announce new executive action on immigration policy tonight, but many others are unhappy.  It is expected that the administration will act to shield millions of immigrants from deportation.  

It certainly seems that the president does have the authority to use discretion in enforcing (and not enforcing) federal laws.  In fact, I have personally urged the federal government not to enforce a perfectly valid law barring marijuana possession. The question now is whether or not he has the right to negate the current laws on immigration through inaction.  Here, it appears that the President is acting in part out of frustration with the House of Representatives, which has failed to pass any immigration legislation.

What do you think?

Wednesday, November 19, 2014


The horse knows the way, to carry the sleigh...

As a kid, whenever I sang "Over the River and Through the woods…" I always wondered about that sleigh and the white and drifting snow-- where the heck did these people live, where the snow was already in drifts by Thanksgiving?

Now I know.

It's been a disconcertingly early winter here in Minnesota, with the snow falling and temperatures in the single digits. The ski areas are up and running, and the high school nordic team is out in full force.  

Usually, I am upset when I see Christmas decorations before Thanksgiving, but in the snow it seems ok.  In fact, unless we get a serious melt I'm not going to be able to put decorations out at all.  

I love the snow, though.  I love the quiet it brings, the smoothness of the world, the slower pace we all must have when we walk and drive.  I love glancing into the park and seeing a lone skater, blades cutting the ice against a backdrop of green and white and brown, cutting rounded lines into the clear, cold ice.

Tuesday, November 18, 2014


Big Hero 6

I saw Disney's adaptation of the Marvel comic "Big Hero 6," and found it contained some intriguing surprises:

1)  It takes place in "San Fran-Tokyo," which seems to be the result of some kind of rapid and bizarre continental drift resulting in Tokyo merging with San Francisco.  The result is a little disconcerting.

2)  The puffy hero-robot has some great moment.  It is almost a return to physical comedy-- the kind that Buster Keaton and his contemporaries did so well.

3)  My favorite thing about the whole movie is that in the end the hero's highest and best use is as a medical services provider.

Monday, November 17, 2014


Fred Haas... or something like it

I'm not even from Houston, but I still loved Jill Scoggins' haiku:

Fred Hass car lot ads.
On my car radio, the
F and H aren’t heard.

“What is a Red Ass
Toyota? Do I want one?”
I wonder out loud.

Sunday, November 16, 2014


Sunday Reflection: When Jesus was gone

Lately, I have been talking to some of my friends who, for various reasons, have lost their faith.  It's something I understand, and have come close to myself.  They didn't want to end up without that certainty, but people and events pushed them to a place where belief in a loving God no longer made sense.

Yesterday, I was wondering about Jesus's followers after he was gone.  Not just the first time, but the second time, too-- after the resurrection.  It must have been very strange to have devoted three years to an intense cause that was focused so closely on one man, and then have him be gone.  

What they did, it seems, was move to action.  They went all over, to the ends of the known Earth, they took risks, they confronted the impossible.  This is different, though, than what my friends struggle with.  For Jesus' followers, it was the body that was gone, but the idea of the man remained.  For those who lose faith, it is the idea that is gone.  It might be that losing the idea of what can be is worse by far. 

Saturday, November 15, 2014


Untied Airlines

IPLawGuy tipped me off to this great story in the New Yorker about the decline of United Airlines after its merger with Continental.  The story is a familiar one: Airlines promise great service and low prices after a merger, and none of it is true:

Modern American corporations rarely degrade service in bold, attention-getting ways. Rather, it is a kind of suffering by a thousand cuts, each individually unnoticeable but collectively defeating. On the “new” United, seats got smaller as the airline jammed more people into the same tube; upgrades, to escape the sardine effect, seemed to become harder to book. The number of boarding groups began to resemble something like a caste system; “change fees,” which have always been outrageous, grew higher (two hundred dollars for domestic, three hundred dollars for international), while baggage fees soared to as high as a hundred dollars. The cross-country flights somehow seemed to all be on old, broken-down planes, while gate agents and flight attendants all just seemed crabbier. 

Friday, November 14, 2014


Haiku Friday: Mis-heard

Earlier this week, I was driving along and heard President Obama speaking in China after meeting with that nation's President Xi.  For whatever reason, it sounded like Obama was saying "President Cheese," and until I got the full context of what was going on (I had started listening in the middle of the speech, and didn't know where he was), I thought he was referring to "President Cheese."  I was very curious about this President Cheese, imagining that logically it could only be that Mayor McCheese had been elected to the top spot in his native country, Sweden.

So, let's haiku about things we mis-heard today-- in songs, speeches, terrifying children's books, whatever.

Here, I will go first:

This President Cheese,
Is he a gouda leader?
Sing "Hail to the Ched!"

Now, you go!  Use the 5/7/5 syllable formula, and have some fun...  

Thursday, November 13, 2014


Political Mayhem Thursday: College Football Madness!

So, get this:  Baylor is 8-1, and tied for first in the Big 12.  They whomped Oklahoma last week, 48-14, and looked good doing it.  It's been a great season, with their only loss coming on a trip to scary, scary West Virginia.

In the latest ranking of teams by the committee that is choosing the four teams that will be in the championship playoff, though, the Bears are ranked 7th.  That's a little strange, given that they are three points behind 8-1 TCU, whom the Bears beat head-to-head earlier in the season.  In other words, these two teams played a game, one of them won, and now the other is ranked in a position to get into the playoff. 

Among other oddities of the rankings, one-loss Oregon is ahead of undefeated Florida State, the defending national champion.

But here is the thing about the TCU/Baylor debate... it may all come down to how Minnesota does in its last three games.  And Minnesota is the other team I have been rooting for lately.

See, if Minnesota wins two of its final three games-- against Ohio State, Wisconsin, and Nebraska-- or maybe even just one of those, it makes TCU look better, since TCU beat Minnesota 30-7 earlier this year.  TCU's supposedly superior strength of schedule depends on the Gophers.

So, if I want to see Baylor in the playoff, I should want Minnesota to lose.  But I don't.  I'm kind of thrilled by how well they are doing.

What's a guy to do?

Wednesday, November 12, 2014


Wait a minute… Brad Pitt is married?!?!

I'll admit that I get a lot of my news from The Onion, but at least Onion readers know who the VP is:

Tuesday, November 11, 2014


Net Neutrality

The debate is continuing over the idea of net neutrality, as the President has ordered the FCC to take what steps it can to prevent internet service providers from favoring some content over others.  As the New York Times explained it:

The Federal Communications Commission, Mr. Obama said, needs to adopt the strictest rules possible to prevent broadband companies from blocking or intentionally slowing down legal content and from allowing content providers to pay for a fast lane to reach consumers. That approach, he said, demands thinking about both wired and wireless broadband service as a public utility.

This is such a thoroughly modern debate-- an issue that didn't even exist just a few decades ago.  

Is there a principled argument against net neutrality?

Monday, November 10, 2014


Thank you for your vote.

How can I not recognize this haiku by my dad?

"Thank you for your votes;
I will take it from here" said the
special interests.

And, yeah, the sculpture/poster above is his, too...

Sunday, November 09, 2014


Sunday Reflection: Living in the moment

"Live in the moment" is one of those phrases I always thought was just wrong.  I read it to mean that you shouldn't worry about or plan for the future, just enjoy whatever is happening right now.  It seemed narcissistic and self-centered.  When people would say it, I would roll my eyes.  

Then, something happened, something quiet and gentle, but it is often quiet, gentle things that really change us.

The last time I was in Richmond, I was sitting at the bottom of a hill at the University of Richmond, talking to some of the students there.  It was a beautiful evening, dusk, with that gorgeous filtered light and soft air that you get in Virginia sometimes.  

At the top of the hill, walking towards me, I saw my friend Craig Anderson with his wife Lori.  He looked tall and happy and strong.  In that moment, that precise moment, my heart leapt with joy.  It was a powerful thing.  Craig had battled cancer, a terrible bout, and beaten it.  Now, there he was, alive, well, whole.  That instant was perfect: that moment of realization, joy, and gratitude.

Maybe that was "living in the moment," in a good way.  I let myself feel that joy, express it, live it without compromise.  It was only a moment-- I had a presentation to give-- but one of the best moments of all.  I would imagine that at the end of life, that is what we are left with.

Saturday, November 08, 2014


A Title Unveiled

The next Star Wars movie comes out in about 13 months, and they have just released the title:  "The Force Awakens."  I have no idea what that means.  Why can't movie titles be more like that classic, "Snakes on a Plane?"  It pretty much told you the whole plot.  You saved 10 bucks, since actually seeing the movie was made unnecessary...

Friday, November 07, 2014


Haiku Friday: Post-election blues (and reds)

If you are like me, you are still trying to figure out what all happened in Tuesday's elections.  Let's haiku about that this week!  It can really be about any elections, anywhere (even India).

Here, I will go first:

What's up, Alaska?
Why does it take so long to count?
But now, legal pot.

Now it is your turn!  Just use 5 syllables in the first line, 7 in the second, and five in the third...

Thursday, November 06, 2014


Political Mayhem Thursday: The Most Baffling Result of 2014

The papers and news programs are full of reporting on the possible impact of the Republican's capture of the U.S. Senate, some key Governor's races, and marijuana legalization in Oregon and DC.  Not to minimize the importance of any of that, but the result I find most fascinating is the result of the district clerk's race in McLennan County, Texas.

According to Tommy Witherspoon's report in the Waco Tribune Herald, here are the bios of the two candidates:

Karen Matkin (incumbent), 62

-- Graduate of Baylor and Baylor Law School
-- Former prosecutor
-- Past president of McLennan County Bar Association
-- Over 10 years in office, collected $3 million in additional fines (the office has a budget of $1.5 million, but now collects $2.5 million in fines per year)
-- Former board member of the Brazos River Authority, Governor's Commission for Women, and Friends for Life.

Jon Gimble (challenger), 38

-- Currently a student at Tarleton State University
-- Former clerk at Circuit City
-- Member of the Texas State Guard
-- Volunteer on political campaigns.

And... Gimble won.  Because he was the Republican.

In short, I'll say this:  Part of what went wrong in Detroit was that one-party rule led to too many unqualified people getting important jobs managing key city functions.  It's not a Democrat or Republican thing... it's a one-party thing.

Wednesday, November 05, 2014


Election Results!

Here in Minnesota, Al Franken won.  Which is interesting, because he has sent me a series of increasingly alarming emails that made it seem like he just might lose if I didn't send him $5.  Frankly, the amount seemed absurdly small, and the alarm seemed a little artificial.

Back in Waco, it looks like a Republican sweep of everything both statewide and in and around McLennon County.  I've been thinking about the problems with one-party rule…

What do you think the most important result was?

Tuesday, November 04, 2014


And… political season ends!

Can I confess something?  Last night I flipped around on the TV trolling for political ads.  I know it's terrible… but I love seeing the really bad ones.  Here in Minnesota, we have a lot of those.  A lot.

But now that season is over.  What will happen next?

Monday, November 03, 2014


A very Pickles Halloween...

You know what I love?  I love it when someone has a good dialogue going with the Medievalist.  That happened last week, starting with this anonymous haiku:

I make a great cat
"Nice tail!" Medievalist says
Gotta say-- it's true.

To which he responded:

Those Halloween dreams,
Like admiring Pickles tail,
And she bites hard too.

Sunday, November 02, 2014


Sunday Reflection: Perseverence

If you haven't checked it out yet... my dad has been blogging regularly over at the website for the Dirty Dog Jazz Cafe.  You can see some of his posts here.

Recently, he wrote beautifully about the benefits of perseverence:

As a painter, I have suffered through periods of abject failure.  Canvases covered with bad starts begin to pile up against the wall reminding me of my ineptness.  My confidence lags and my hand holding the brush with the wrong color goes to the wrong place.  This can last for long periods of time.  It is important at these times that I don’t quit on the act that brings me such great pleasure, creating art. Working hard gets you through these times.

There are  times when we work very hard and persevere that we stumble on our best results.  It is if an outside force directs us to excel.  We can’t miss.  At these moments, our vision is clear and our hand becomes accurate.  For some time I thought this was unique to me.  Then, one day I was the audience of one listening to Wendell Harrison and Vaughan Klugh play a gig at the Scarab Art Club in Detroit.  They started out with some standard stuff but soon took off to some new places.  They seemed to anticipate each others’ next move.  They were alone with their music.  They were playing only for themselves.  They came up to my studio after the gig and we talked.  I told them that I thought they were at their very best.  They both smiled and said that it was close, but they didn’t quite make it to the zone. They explained this magical place to me. The zone.

I love that take on it.  Everyone deals with it too-- those times that it just isn't working, or people don't like what you are doing.  Jesus faced it, even, including when he went back to Nazareth. 

But then... it gets better.  And sometimes we get to the best.  As he describes it, here is a painting that my dad came up with at the end of a long day:

Saturday, November 01, 2014


Two ideas

Stanford Law School has started a brand new journal dedicated to criminal law, the Stanford Journal of Criminal Law and Policy.  I had the honor not only of speaking at their symposium, but my article Narcotics Prosecutors as Problem Solvers is the lead article in their first issue-- the cite is 1 Stan. J. of Crim. L. & Pol'y 1 (2014).  Not that it means much-- I think that articles in the same issue by Erik Luna and Ron Wright/Kay Levine/Marc Miller are more significant.  Still, I appreciate everything the people at Stanford did!

Also this week I wrote a (much shorter) Hallowee-themed piece for the Huffington Post called The 5 Scariest Teachings of Jesus that somehow entered a social media wormhole and ended up with 6,400 likes on Facebook (and 600+ angry comments).  Many readers of that piece wrote to me directly.  Some of their notes were helpful and interesting, while others were just... interesting.

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