Friday, November 30, 2018


Haiku Friday: Best place to read

We all have one: a favorite place to read. It might be just the right chair, or a couch, or maybe a place-- a cabin, or the beach. Let's haiku about that this week.

It's very comfy
And Jack White upholstered it
(Don't mess with legend).

Now it is your turn! Just use the 5/7/5 syllable formula, and have some fun!

Thursday, November 29, 2018


Political Mayhem Thursday: Raiding the Bishop

I found this headline (in the NY Times) pretty alarming: Investigators Raid Offices of President of US Catholic Bishops. It's just another chapter in the never-ending sexual abuse and cover-up scandal in the Catholic church. This time around the focus is on Cardinal Daniel DiNardo of Houston, who is the President of the Bishops' conference and who is alleged to have assigned a Priest to work in a parish despite prior allegations of abuse. The police felt they needed to raid the Cardinal's offices because of suspicions he was hiding records related to that Priest.

There are at least five parts to this scandal, which has engulfed Catholic Dioceses all over the country (and the world):

-- The initial abuse by priests
-- The failure of the Church to investigate allegations of abuse
-- The re-assignment of Priests credibly accused of abuse to new positions in the church rather than removal from the priesthood.
--  The failure to cooperate with or initiate outside investigations.
--  The pervasive attitude of "Let's move on" when the scandals have not been thoroughly investigated and the truth made known.

The "Let's just move on" take on things, where internal investigations are forgone or dropped, priests shuffled around, and secrecy maintained, has not worked well for the church. Mostly, it has ensured that instead of a few years of tragedy and pain, this scandal will consume an entire generation of the church. It's a terrible choice.

Wednesday, November 28, 2018


The Manafort Developments

Things are getting interesting.

The Mueller team now has moved to alter Paul Manafort's plea agreement, asserting that his lies during proffer sessions relieve them of their obligations even as Manafort remains bound by the agreement's terms. And... that is how it works. He is in a tough spot that he designed.

Of course, there are a lot of other allegations flying around about Manafort:

-- That his lawyers were reporting back to the Trump team about the Mueller proffer sessions, giving Trump an idea of what Mueller was interested in.

-- That he met secretly with Julian Assange, the fugitive who released the emails stolen from the Clinton campaign, at Assange's hideout in the Ecuadorian embassy. Allegedly, this happened before Assange released the emails.

-- That he also went to Ecuador and met with the Ecuadorian President in 2017, after Trump was inaugurated.

As a prosecutor, I know that we are looking at a tiny part of a large beast, and I am loath to draw any broad conclusions about what has or will happen. It does seem, though, that the Mueller team has enough sources to know with certainty that Manafort lied to them-- and I find that quite intriguing. Manafort is no longer important to them, perhaps, now that they know the truth from other sources. If Trump pardons Manafort, it will be an injustice... but it probably will not affect the Mueller investigation one bit.

His usefulness is ended. He faces the worst sentence one can receive in the Trump world: irrelevance.

Tuesday, November 27, 2018


GM Kills Itself

Yesterday, General Motors announced that it was going to close down five factories in the US and Canada, let 14,000 North American employees go, and cut several car models (including, oddly, the plug-in hybrid Volt and the strong-selling Cruze, a small car). For the second time in a few weeks, I am mad at the same thing that is angering Donald Trump (the first was Mitch McConnell's obstruction of the First Step Act).  

Part of my own view has to do with the fact that two of the plants being closed are in Metropolitan Detroit. One of them, in fact-- the Poletown plant-- was built when eminent domain was used to destroy an entire neighborhood. That was just one of the benefits GM sponged from the public, and pales in comparison to the bailout they got from the Obama Administration as the company approached collapse. 

The plan is to stop production of sedans to focus on  SUVs, crossovers, and trucks while investing in the development of electric cars and car-sharing services. I doubt they will ever get past the "building giant inefficient vehicles" part of the plan. Companies like GM so often get obsessed with short-term profit that they find it nearly impossible to sustain long-term vision. They will just make behemoths until gas prices spike again and they are fully committed to building trucks that use a lot of gas.

GM says they don't want to end up like Sears, which went bankrupt last month after failing to adjust to an online economy. But... there is more to that story.

See, Sears once did something very much like what GM announced today. In the 1980's, Sears joined with IBM to develop the very first online service, which was called Prodigy. It came packaged with a computer I bought in 1988 or 1989, and I signed up for the service. It was really something-- it was, for example, possible to buy airline tickets without a travel agent! It did feel revolutionary.  Prodigy then became the first service to provide full access to the World Wide Web.

They did not keep their eye on the ball, though. They sold their stake in Prodigy in 1996 for $200m, and apparently just went on doing what they had always done. 

Will GM be able to maintain a sustained vision even when short-term gains pull them elsewhere? I doubt it. And that means that eventually we will have to decide whether we should use tax money to bail them out again, even after they ignored American interests time and again. Will we have the guts to finally hold them to the same kind of accountability that we require for, say, Medicaid recipients?

Monday, November 26, 2018


Bang bang?

Nice haiku on leftovers, everyone (and I want to get lunch from Gavin's mom sometime), but I wasn't quite sure what Christine was talking about:

Looking forward to
turkey meets Asian salad
a la Bang Bang style

Can someone explain it to me?

Sunday, November 25, 2018


Sunday Reflection: Randall O'Brien's job well done

Randall O'Brien is retiring as President of Carson-Newman University in Tennessee at the end of next month. As is true everyplace else he has been, he leaves it a better place.  

I have attended and worked at a bunch of universities, and never came across a president like Randall. He obviously loved the students, and talked about them every chance he had. And not only did he talk about them, he also talked to them,  and it was impossible to walk ten paces on campus with him without being interrupted, wonderfully, by a student with a question or-- just as often-- who was about to be questioned by Randall. You know that great feeling you have when you can tell that other people love someone that you love? That's what it was like to see these encounters. 

Of course, I'm one of those students. Technically, we were co-teachers, but let's not fool ourselves. Randall and Hulitt Gloer taught me every week we supposedly "co-taught" our Oral Advocacy class at Baylor. They taught me to preach, but that was not the most important thing. They taught me how to seek out the dignity and talent in my students when perhaps they did not see it themselves, how to trust myself in my teaching, and how to care about a class as a whole.

He is retiring from this presidency and the success he had there, but he will not, cannot, retire as my friend and mentor. That, I could not fathom.

I'm wildly blessed. And one of those blessings has been the friendship and leadership of Randall O'Brien.

Saturday, November 24, 2018


Caption contest

This illustration is from a how-to manual explaining the Heimlich Maneuver.  

Still, it seems really compelling divorced from that context. What all is going on here? There is something about the choking victim looking straight at the observer, for example, that is either fascinating or creepy (or both).

Captions welcome.

Friday, November 23, 2018


Haiku Friday: Leftovers

I know people who love the leftovers more than the big Thanksgiving meal itself. IPLawGuy is one; as he told me the day before Thanksgiving, "Traditionally, we steam a whole mutton for the holiday, and then savor the leftovers for a week." He took a moment to double his wager on the Lions and refresh his Pimm's Cup before making a suggestion: "It's easy to use leftover mutton for mutton tetrazini.  Your kitchen assistants should be able to do it with no problem."

Lacking kitchen assistants, I tend more towards turkey sandwiches. Which are much better with gravy! 

Let's haiku about leftovers this week. Here, I will go first:

Pumpkin pie;
Better the second morning
A perfect breakfast.

Now it is your turn! Just use the 5/7/5 syllable formula, and have some fun!

Thursday, November 22, 2018


Thanksgiving Thursday

Happy Thanksgiving!

I love this image by Ryan McGuire (if you want to buy it, the photo is for sale at Saint's Rest, a coffee shop in Grinnell, Iowa). 

The bunny seems so content, doesn't he? Looking out over an inlet on a cloudy day, a bench to himself. I feel like that bunny. I know that I am lucky, and I am full of gratitude.

Wednesday, November 21, 2018


Found poetry

Tuesday, November 20, 2018



Every year, it seems, I write one or more pieces about how the annual turkey pardon by the president makes a mockery of the failures of human pardoning. This year, writing at CNN, I took a different tack and dug into the process of how they actually pick the turkeys to pardon. Guess what? It's way better than the one we use for actual federal clemency.

Monday, November 19, 2018


Stuff to read!

I have a piece up right now at The Hill titled Some of Us Midwesterners Think Maybe Amy Klobuchar Would Do OK as President. And yes, the title is supposed to be a bit of midwestern humor!

As for haiku, there was some great work last week.  CTL represented Texas:

Teeth chatter, bones ache.
Wintry torrent sears, cuts, bites. 
Forty-two degrees.

The Waco Friend apparently spent time outside of Waco:

Walked to class on grass
next morn two feet deep on ground
Feb 67.

And Gavin had some great advice for those of us in colder climates:

Snow came too early. 
Need hard cold first for good ice. 
Pickups should take care!

(Advice for all my fellow ice fishermen out there. Watch the news for idiots in 2018 trucks going through the ice because it “looked safe.” Snow insulates and makes poor ice conditions underneath.)

Sunday, November 18, 2018


Sunday Reflection: Losing

Like many others, I have been rooting for the passage of the First Step Act, which I described in some detail this past Thursday. It was a limited measure, but one that would have helped a lot of people in the position of those we have worked with on clemency, including those with cases identical to Weldon Angelos, Rudy Martinez, and Ronald Blount (among others I know).

My own perspective is informed by knowing the success of those we worked with who were released through clemency. They have thrived, returned to their families, and become productive citizens.  It's not an abstraction; I talk to them on the phone and sometimes visit with them. It's very real.

On Wednesday of this week, President Trump announced his support for the bill. Then, on Friday, it stalled in mid-air.

Senate Majority Leader Mitch McConnell apparently decided not to bring the bill to the floor of the Senate this year, despite a promise to do so if 60 member supported it (and it seemed that this threshold was reached). He said there wasn't time, but many speculate that the real reason was that he did not want to go forward if members of his caucus were opposed (and of course some were). Pushing it to next year means starting over, since the composition of the House will be new, which will create greater division over criminal law issues, which may make broad compromise unlikely.

Now, I am responding to notes from mothers and sisters and kids of those incarcerated, who want to know what the prospects are. I don't have good news for them. There is a deep sadness that goes with that.

Christians like me believe that what happened to Jesus wasn't random, but that God allowed a life for his Son that not only shows us truth but illustrates what is important. Next month we will bring out our nativity scenes, which remind us that Jesus was born into poverty. I don't think that is an accident. Neither is it an accident that Jesus was a criminal defendant, unjustly tried and brutally executed. We are meant to care about those in prison. And if that is not enough, if that wasn't clear, there are the words of Jesus himself, who taught that when we visit those in prison, we visit him.

Faith means different things to different people. For some, it ennobles themselves and justifies safety and riches. For others, it points them towards sacrifice and those who are the least of those among us, the downtrodden, struggling and scorned.

In which group would we find Jesus?

Saturday, November 17, 2018


Stanich's and the Death List

We are obsessed with lists, and this is almost always to our detriment. My own field, legal education, has been overtaken with a slavish devotion to the US News rankings, a development which has made everything associated with the actual teaching of law worse. Like many lists, almost everything about the US News rankings is a lie, beginning with the idea that there is a "best" law school. And this isn't sour grapes-- I went to the school that US News falsely calls the "best." It was and is a great school, but there is no objective claim to being "better" than many others by any reasonable metric.  

When I was in high school, I ran cross country and track. I loved that sport in part because of its objectivity: you really did know who was "best" on a given day, because they finished the race first. Even sports like college football lack that-- just check out the rankings, where you can find a team ranked ahead of a team it lost to on the field.

I'm thinking about this because of a great article I read by Kevin Alexander, I Found the Best Burger Place in America. Then I Killed It. In short, Alexander made a list of the best burger joints in America (something that on its face is about objective as listing the "best" law schools). Doing so killed the place he named as "best." It is worth a read.

Friday, November 16, 2018


Haiku Friday: In Snow

It snowed yesterday in DC. I know this because IPLawGuy sent me this photo of his house and a short note saying "Bully on this weather! I have discovered a new cocktail of my own invention that I am calling 'Wintry Mix.' It is equal parts snow, Tony Chachere's boot seasoning, bourbon, and stolen rum. Oh, and do you still have that brace of pistols? Something happened with that one guy and the situation I told you about, and this snow has given me an idea." 

Whether you are a small child or a seasoned intellectual property lawyer bent on revenge, the arrival of the first snow is an adventure. Let's haiku this week about that first snow: What you do in it, what it looks like, etc.

[Note to Texans: You can fake it, or write about that one time you went to Colorado or that day when the rain in Houston seemed especially cold]

Here, I will go first:

I would watch one flake
Drift lazily downward, and
Catch it in my hand.

Ephemera, that
It lasted but a second
One moment of joy.

Now it is your turn! Just use the 5/7/5 syllable pattern and have some fun!

Thursday, November 15, 2018


PMT: What's In the First Step Act?

Yesterday, President Trump announced his support for the First Step Act, which is on the verge of being taken up by the Senate (much of its primary substance was already approved in the House). Though it does not contain everything that advocates might want, it is an extraordinary move in the right direction, and contains several provisions that I have hoped would make it into law for a long time. 

So what all is in there? Recognizing that changes can (and likely will be) made before the First Step Act becomes law, here are some of the primary provisions in the current proposal (based on a draft obtained by the New York Times):

Title One: Data-driven programs and assessments

-- Directs the attorney general to develop a "risk assessment system" for prisoners, which will be reviewed annually. This system will guide placement, housing, and eligibility for programs

-- Also requires that the AG "develop recommendations regarding evidence-based recidivism reduction programs and productive activities" 

-- Creates specific (very specific!) incentives to participate in recidivism reduction programs, including more phone time, visitation, and spending at the commissary, as well as good-time credits that can shorten sentences. Those convicted of several crimes are ineligible for these programs, and "deportable prisoners" are ineligible for the good time credits.

-- Slightly alters the way good-time credit is counted, to the advantage of prisoners.

-- It also creates an "independent review committee" to review the development of the risk and needs assessment system.

Title II: Guns n' Guards

-- This one is kind of a non-sequitur; it provides that prisons provide a place for employees to store their personal guns while they are at work, and allows them to keep guns in their cars while they are at work.

Title III: Ban on shackles for pregnant prisoners

-- With exceptions, bars the use of restraints on prisoners who are pregnant. This goes beyond banning the use of shackles while a prisoner is giving birth, and extends from when the pregnancy is confirmed to the conclusion of post-partum recovery.

Title IV: Sentencing reform

-- Defines the meaning of "serious narcotics felony" and "serious violent felony" as those terms are used in enhancing sentences. In some places describing enhancements, these terms replace "narcotics felony" and "violent felony." The new definitions are more restrictive than the prior definitions for "narcotics felony" and "violent felony" (for one thing, they require that the defendant actually served at least 12 months for the prior), which means fewer enhancements.

-- It lowers some of the mandatory minimums under 21 U.S.C. 841(b), which is the primary federal narcotics law. For example, previously if someone had two qualifying prior convictions and was involved in a significant enough amount of narcotics, the mandatory minimum sentence was life without parole. (Many of our clemency clients were over-sentenced because of this provision). Now the mandatory minimum sentence in that kind of case is 25 years.

-- It broadens a "safety valve" provision that allows a defendant to escape mandatory minimums, and gives judges a little more leeway in employing the safety valve.

-- It prevents the stacking of gun counts enhanced under 18 U.S.C. 924(c) unless there is a conviction for the prior gun count. Currently, if I am carry a gun three times during a drug trafficking crime (say in a series of drug sales to an undercover officer), prosecutors can charge the counts such that the first gun carries a mandatory minimum sentence of 5 years, the second 25 years, and the third 25 years, so that they "stack" to form a mandatory minimum sentence of 55 years-- even for a first conviction. I think they should call this the "Weldon Angelos Law."

-- In 2010, Congress passed the "Fair Sentencing Act" (thanks, Nkechi Taifa!), that reduced sentences in crack cases. It was not made retroactive. This bill would fix that, and allow crack defendants to be resentenced under the current, less severe, mandatory minimums and guidelines. This is a great development; it is profoundly unfair to have denied prisoners this ability for the past 8 years.

Title V: Miscellaneous Criminal Justice (It really is called this!)

-- Subject to some restrictions (and these could be significant loopholes), the Bureau of Prisons is required to "place the prisoner in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence."

-- Takes Compassionate Release out of the sole discretion of the Bureau of Prisons and broadens eligibility for that program (thanks, FAMM!). It also requires that BOP report to Congress after a year on the results of petitions for Compassionate Release.

-- Promotes the use of home confinement where the prisoner is eligible for it.

--  Strengthens and broadens requirements that prisoners be provided with identification documents before release.

-- Broadens markets for prison industries while requiring study of the effect this has on private-sector competitors.

-- Requires de-escalation training for prison guards.

-- Mandates reports on evidence-based opioid treatment in prisons.

-- Establishes pilot programs in (1) mentorship to youth, and(2) service to vulnerable animals. 

-- Requires data collection on the demographics of the prison population (including the number of pregnant prisoners)

-- Mandates that feminine hygiene products be provided free to female prisoners.

-- allows more money to be spent on adult/juvenile collaboration programs

So, what have we got here? It seems like there are four separate threads that predominate:

1) A move towards data analysis as a tool for making decisions about those in prison and returning citizens who have completed their sentences;

2) A few provisions go directly towards respecting (in relatively modest ways) the human dignity of prisoners;

3)  This legislation recognizes that the BOP needs some monitoring; and

4) Files away a few of the harshest edges of sentencing law and practice.

That is all good. One major criticism: Many of the changes are not retroactive. That means that people will remain in prison even though they would be out under current law. That's unfair-- in the words of sentencing geeks, it creates an unwarranted disparity. Which in turn means that reforming the clemency system remains important, since that will be the only way to address that disparity and help people serving sentences far longer than they would receive under current law.

Wednesday, November 14, 2018


About the Gilmore Girls....

So, on Monday I took some flack from a few friends for revealing on the blog that I fell asleep while watching the Gilmore Girls. Which on the one hand might be deserved-- I did fall asleep while watching the Gilmore Girls, which sounds pretty pathetic. BUT.... I should mount some kind of defense of GG, if you haven't seen it (and maybe if you have).

The series revolves around a mother and daughter, Lorelei and Rory Gilmore. It's pretty much the story of white/wealthy/Yale privilege, as the two get bailed out time and again by wealthy relatives or people in town who just like them because they are cute and witty, it seems. Lorelei was a teen mom-- Rory was born when she was 16-- but the hard times associated with that all occur before the show begins, and the series itself is a cavalcade of martini-swigging Connecticut hijinks.  There is a lot of dating, by both of the Gilmore Girls, and they appear to share the same terrible taste in guys (they both seem to tolerate very rich men no matter how horrible they are-- and they are).

Rory progresses from a fancy boarding school to Yale (the major hardship seems to be that it is her grandparents who are paying for it). In that time, she has three major relationships, and followers of the show love to debate the relative merits of these guys. In fact, there is an entire episode of This American Life devoted to a Marine sniper regiment in Iraq that became obsessed with this question (and in the episode, Ira Glass turns out to have some strong opinions himself).

Guy One, who Rory dates in high school, is named Dean. He seems like a pretty nice guy, actually. He is kind to Rory and seems to be a hard worker, splitting his time between high school and working at the grocery store in town. Rory dumps him, of course. This happens about the time she gets into Yale, and it is hard not think that maybe she doesn't want to be dating a guy who works in a grocery store. Which was a big mistake. Well, that, and she started messing around with Jess.

Guy Two is Jess, who is an angry jerk whose only redeeming trait seems to be that he is literate, which for some reason just makes Rory all swoony. He never really talks about books, but is often holding one. He flunks out of high school, rages at everyone in town, and abuses the people who try to care for him. This is all ascribed to the fact that his mom is weird. Look, I know a LOT of people whose mom was or is weird, but they don't rage at everyone all the time! Jess dumps Dean for Jess, and then (after some dating) Jess leaves town in a huff only to return periodically to stalk Rory and glower at people.  You would think he would be the worst boyfriend Rory could find, but... nope. That would be Logan, the guy who lasts the longest with Rory.

Guy Three is Logan. You know all of those possibly apocryphal stories about Brett Kavanaugh at Yale that came out earlier this fall? Well, Logan did all of that stuff and more. He is the reigning king of fictional Yalie jackassery, taking over from Mr. Burns of The Simpsons. His primary characteristic seems to be that he is very very rich. Like, really rich! He is a complete lout, the Ted Cruz of Lifetime-movie-style entertainment. He doesn't care about school, ignores Rory, is dangerous, and takes everything for granted-- the definition of "entitled." And, of course, in Gilmore World this is the ideal mate! Seriously, once Logan showed up, I started to miss Jess. And I hated Jess.

Everyone has an opinion on the boyfriend issue. "I actually like Jess," IPLawGuy told me as he tossed the last kitten into a burlap bag and tied it shut with a length of jute. "He is a reader, and seems to have good taste in both fiction and non-fiction." He paused to toss the sack of mewling kittens into the trunk of his rented Kia Optima. "Yes, he is a bit of a miscreant, but aren't we all?"

The music on the show is awful (a lot of "la-la-la-la" without a real tune). There are some characters (i.e. Kirk) who are just there to be annoying. Major plot points go missing. But the show does offer some great villians, and that is too rare these days.

Tuesday, November 13, 2018


A New Project

About every ten years, I start on a new big project. That is, I'm struck by something way bigger than me that needs to be different, and decide to go after it. Usually, I have fellow travelers. Sometimes, I am on my own, trying to talk people into something.

In about 2001, that thing was the crack-powder disparity in the federal sentencing guidelines, under which those convicted of selling one gram of crack got the same sentence as those who sold 100 grams of powder cocaine. The ratio was senseless; it prioritized incapacitating those who were least important and culpable in the whole process of drug trafficking. Someone would bring huge amounts of powder cocaine into the country, someone else would wholesale and distribute it to major cities, in each city someone else might wholesale it into neighborhoods, and then another would sell it to street level dealers who would rock it up into crack and sell it. And who did we treat as the kingpin? The last guy in the chain. It solved no problem even as it created racial disparities and gross injustice.

So we fixed it. We won a few US Supreme Court cases in 2007 (Kimbrough) and then in 2009 (Spears) that declared that judges could reject the 100-1 ratio. And then in 2010 Congress changed the law and guidelines. We won that one, in a thousand little motions. I remember being up after midnight, writing a brief at my kitchen table, and being thrilled at what could happen, and what that could mean for people I will never meet.

Next, beginning in about 2011, I started to push the Obama administration to use clemency for narcotics defendants, and ended up working with a lot of remarkable people.  I wrote about it and even went on an epic rant at the White House. And that kind of worked, too, though not enough. And we continue that effort.

Now I have a new idea.

Monday, November 12, 2018



To the people who alerted me to the fact that it is nearly 11 am, and I have not blogged today: Don't worry. I'm ok. I just fell asleep while watching the Gilmore Girls last night, and then forgot that I had neglected to blog.

In a way, it is reassuring that people expect a post every morning! I've been doing this for over 12 years now, and it is good to see that people still notice.

And, if you are interested in great haiku, I recommend that you review this gem from the bi-lingual Medievalist:

Son caracoles,
¿Has comido alguna vez?
Será la primera.

(It´s snails.
Ever eaten them before?
It´s the first time.)

And Susan Stabile contributed my favorite (which may have been inspired by the same Hong Kong restaurant that Christine referred to):

"Very good stir-fried" - 
the only English he knew.
I think they were worms.

Sunday, November 11, 2018


Sunday Reflection: After the election

Elections do matter; that is one reason that I always vote.

But this might be a good time to remember that in our own lives, the choices that politicians make are not nearly as important as the ones that we make ourselves. My mistakes have impacted me far more than anything politics have ever produced-- and those moments where I chose well or persevered have benefited me far more than any act of a legislature.

Can politics fix global warming? Well, probably not. But our own choices matter, too. And there are times that the placement of responsibility on government feels like it is--in part--an abdication of personal agency. Yes, political bodies need to address global warming, but so do each of us as consumers and producers.

I am always fascinated by how people obsess over a relatively small raise in taxes, yet their own finances are a mess. Or how they might cry out about the civility of politicians, yet remain inattentive to how they are hurting others. And, yeah, sometimes that has been me. And it is important to remember that.

Saturday, November 10, 2018


The Curious Choice of Matthew Whitaker

From Ruth Marcus's opinion piece in the Washington Post:

"Matthew G. Whitaker, installed in the job by President Trump to replace Jeff Sessions, was asked in 2014, during an ill-fated run in the Republican senatorial primary in Iowa, about the worst decisions in the Supreme Court’s history. Whitaker’s answer, to an Iowa blog called Caffeinated Thoughts, was chilling.
“There are so many,” he replied. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”
Reasonable people can differ over the constitutionality of the Affordable Care Act. Maybe there’s some space to debate the New Deal-era cases that cemented the authority of the regulatory state. But Marbury? This is lunacy. For any lawyer — certainly for one now at the helm of the Justice Department — to disagree with Marbury is like a physicist denouncing the laws of gravity.
Decided in 1803, at the dawn of the new republic, Marbury v. Madison is the foundational case of American constitutional law. It represents Chief Justice John Marshall’s declaration that the Supreme Court possesses the ultimate power to interpret the Constitution and determine the legitimacy of acts of Congress.
In Marshall’s famous words, “it is emphatically the duty of the judicial department to say what the law is.” The untested new Constitution providedthat the Supreme Court possessed the “judicial Power of the United States,” but it did not define what that power entailed."

Friday, November 09, 2018


Haiku Friday: Yes, I ate that

We have all found ourselves--sometime, someplace-- eating something that perhaps we would not usually eat. Maybe this has happened at home, even, through some bizarre kitchen mishap. Or on a trip. Or at a potluck supper in Meadville, Pennsylvania. There are a myriad of possibilities! (And I am confident that the Medievalist has a doozy).

Let's haiku about that this week. Here, I will go first:

Lunchtime in Guangzhou
I received turtle shell soup

Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun!

Thursday, November 08, 2018


Political Mayhem Thursday: Little-known corners of the election

Sometimes there are things in the comments section that are way better than anything I have to say. That is the case this week, as I came across this from CTL in a comment to yesterday's post:

"Texas still offers a straight-party voting option (i.e., one click casts your ballot for all the Rs or all the Ds). When a big national swing happens, and when a majority of folks vote straight party, the judges and county officials down-ballot tend to get swept in or out along party lines. For example, Republican County Judge (weird name for the highest county executive), Ed Emmett, an 11-year incumbent who is highly respected by both sides of the aisle and revered in some circles for his response to Hurricane Harvey (and who is in the middle of a multi-billion dollar flood prevention infrastructure project), lost to a 27-year-old political activist. Republican Justice Brett Busby of Texas' Fourteenth Court of Appeals, a six-year incumbent who clerked for and later practiced before the U.S. Supreme Court (his wife was also a SCOTUS clerk) and was endorsed by every major newspaper and bar association, lost to a suburban civil lawyer with essentially zero appellate experience. These roles are only political in the broadest sense, and it's a shame that our increasingly national politics decide important local races. The same was true, by the way, in 2010 when some well-qualified and experienced democrats were swept out in the first Obama midterms." 

He's right, of course! What else happened in Tuesday's election that flew under the radar?

Wednesday, November 07, 2018


The melting of snowflake Erik Paulsen

Last night's election results were fascinating and a little confusing. My friends in Texas who were devoted to Beto O'Rourke must be struggling with the results-- he came close, tantalizingly close.

Here in Minnesota, Democrats (or, formally, the Democrat-Farmer-Labor Party) had a pretty good night. In the district next to mine, US Rep Erik Paulsen lost to Dean Phillips, and it wasn't that close. As I noted here before, Paulsen spent a lot of energy dodging his constituents, which turned off a lot of people. If you have unpopular views in your district, you need to defend them or change them. And, no, the problem was not a "mob" when what you are dodging is a 4th of July parade!

In other news, I was happy to see that Florida restored the voting rights of 1.4 million people who have been convicted of felonies.

What did you think was significant in the results?

Tuesday, November 06, 2018


Update from my dad: "Vote for Jazz"

Yes-- it is election day! I love election day. I love going in to vote, and getting my sacred ballot. I love seeing the other people in the gym. I love the lady who says "good luck!" as she hands me the form and an envelope. I love watching the results come in, and frantically switching between three channels.

Of course, everyone has their own take on election day. "I enjoy it very much, also," IPLawGuy told me over the phone as he barreled down I-66 in his unrestored 1972 Dodge Challenger while drinking a Scotch of matching vintage. "I was just reading Daniel Fitzwater's epic tome about the contested election of 1828; I don't expect that you have read that?" I hung up on him and immediately checked out my dad's blog, which had some more direct advice. (You can see the whole post here).

Here is the beauty part:

All the candidates could learn something from listening to more jazz and less of the advice from their handlers. What they would hear in their local jazz joint would be a group dedicated to making joyous sounds together. Together they make the group sound its very best. What politicians would find would be that each artist will be  listening to the other and making everyone better. This is democracy at work
Successful jazz musicians listen.
Jazz musicians lead by example.
They give everybody a chance to shine.
They respect each other.
They judge people only by their ability.
They care about preserving the best parts.
Jazz musicians welcome the new guy.
Jazz musicians have something to say, and it is seldom about themselves.

Monday, November 05, 2018


From 1947


Maybe the best crop of haiku ever!

I don't know what happened, but there was a veritable haiku explosion here last Friday! They included poems about all of the following vehicles:

Ford Escort
Ford F-150
Chevy Vega
Audi A4 (that one was kind of my fault; sorry IPLawGuy)
'69 VW
Saturn Coupe
VW Super Beetle
An old gray wagon
Cooper Mini

... and many more!

Usually I highlight some, but they were all so good that I recommend you go here and read them all!

There is actually quite a history with IPLawGuy and Audi documented on this blog. For example, here is an early video, in which IPLawGuy recommends that prospective IP lawyers buy "A Chrysler product, or a defective Audi":

He returned to that theme later, when we went to watch football and he couldn't drive so we had to take the subway:

Sunday, November 04, 2018


Sunday Reflection: Grasslands

This morning I am giving a sermon on 1 Peter 1-2:10. It's really an uplifting, wonderful text (though things go downhill fast after that-- the remainder of 1 Peter has a lot of "Slaves obey your masters" and "Wives subject yourselves," etc.). 

I was particularly fascinated by this little poem at 1 Peter 1:24-25:
“All people are like grass,
    and all their glory is like the flowers of the field;
the grass withers and the flowers fall,     but the word of the Lord endures forever.”
For years, I drove between Minnesota and Texas, and stopped in a little town called Cottonwood Falls, in Kansas. Cottonwood Falls is in the heart of the Flint Hills, an area of broad, treeless grasslands that regenerate through fire every year.  It fascinated me; an ocean of grass as far as the eye can see.

What if that is all we are? One of those blades of grass?

If that is true, it seems glorious to me-- to be a part of such a glorious creation, a tiny bit of something grand. And even though we are each temporary, like that stalk of grass that burns off, the grassland is preserved by what we leave behind. 

I love being a part of this whole.

Saturday, November 03, 2018


Sermon tomorrow!

I'll be giving the sermon tomorrow morning at First Covenant Church, Minneapolis. Festivities begin at 9:30 AM, 810 Seventh Street in Minneapolis (across from US Bank Stadium).

I think it is going to be an interesting one.


Laura Plansker made something beautiful

Growing up, my family was close to the Plansker clan; the oldest kid, Jeff, is my age and we played a lot of two man baseball when he lived down the block on Harvard Road in Detroit. He's done pretty well in LA as both a director and (more recently) the owner of a fascinating-looking store called "The Bloke." And this year Jeff's wife, Kaya Plansker, has been a huge help working with some of my St. Thomas students.

Jeff's sister Laura just made a gorgeous new video for one of my favorite artists, Neko Case. Here is part of what Rolling Stone had to say about it (and it is kind of fun that both Laura and I have been written up in the same magazine, even with very different vocations):

Neko Case meditates on the colossal damage human beings have wreaked on Earth – from environmental devastation to animal extinction – with her profound “Last Lion of Albion” video. 
Using handcrafted puppets and props, director Laura Plansker frames the clip around the tearjerking journey of the titular lion, who glides through a stream and gazes out at the remnants of our natural world: roses, waterfalls, butterflies, frogs, squirrels, rabbits and birds. Humans, meanwhile, send a rocket to Mars.
Case, in a statement, praised Plansker as “one of [her] favorite artists.” She continued, “I’ve loved her work forever; she‘s so skilled at using handmade figures and props to create surreal worlds. Her work perfectly balances humor and darkness in a way that breaks my heart. She has a way of making something so artificial so very alive. The turning of the lion’s head to look at the sky, or its own reflection makes me cry my eyes out. There is so much straight ahead compassion in Laura’s work, there’s no need to manipulate emotion of the viewer, it is the perfect balance.”

And here is the video:

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