Wednesday, September 30, 2020


YLS '90: Prof. Stephen Gardbaum


I'm devoting Wednesdays on the blog to profiling my classmates in the Yale Law class of 1990. I'm finding them to be pretty interesting, all these years down the road!

Stephen Gardbaum was another of those people whose education extended way beyond Yale Law. By the time I had graduated with my BA in 1985, he had gathered up both a BA from Oxford University and a master's degree from the University of London in Sociology and Politics. And before we graduated from law school, he had received a Ph.D. from Columbia in political theory. It's... pretty impressive.

After law school he found his way to the academy, first at Northwestern and then at UCLA, where he now holds the Stephen Yeazell Endowed Chair.

His specialty is comparative international law, and particularly constitutional law in the international context. Not surprisingly, he has been a visiting professor in Australia and France, and has published his work all over the place. If you want to check out what he does, you can read his upcoming (and quite timely) article, "The Counter-Playbook: Resisting the Populist Assault on Separation of Powers" here.

It's not my field-- but it sounds pretty interesting!

Tuesday, September 29, 2020


Trump & Taxes


On Sunday, the New York Times released details about President Trump's tax returns from the last two decades (up through the 2017 tax year).  Among the findings: that in 2017, Trump paid just $750 in taxes, and in most of the years in that period he paid none at all.

Trump responded by saying (1) that the documents were illegally obtained, and (2) that they were fake. Only one of those can be right, though-- because if they are fake they were not illegally obtained. Not that internal logic matters in these things, apparently.

Some are leaping to the conclusion that Trump committed the crime of tax evasion (that is, illegally avoiding tax liabilities through misstatements, as opposed to tax avoidance, which can be done through legal maneuvers).  Of course, tax returns alone can't show tax evasion, by definition. So we don't know if that is true or not, and people should hold off on convicting him of that.

However, the other alternative is probably worse. Because if our tax system is such that a guy with his own Trump helicopter and Trump plane and a $100,000,000 apartment with gold fixtures pays almost no federal tax, that is really a terrible system. 

I don't think this disclosure will affect the election much one way or another... but it should affect the way we think about taxation in the United States.

Monday, September 28, 2020


Treating ourselves... to haiku!

 Lots of great poems on the ways we treat ourselves; here are some of my favorites.

Mary Senneka had this, which I really liked:

The sunshine is warm.
Pillows, afghan on the chaise
An afternoon nap. 

And it is always good to hear from the Medievalist:

I’m making a smore,
Chocolate, gram-crackers and
A charred marshmallow.

My dad had an entry this week:

I hear the call to
dinner yet continue to
dab at the canvas

Jill Scoggins offered this:

Why go small with a
reward? Designer handbags
are best incentives.

While Desiree has an antidote to Zoom:

Staring at a screen
Teaching bio to kids earns
me some new perfume!

Sunday, September 27, 2020


Sunday Reflection: Boards and blood


For the past few years, I've gotten lunch now and then at the Chipotle around the corner from my office. It's pretty much like every other Chipotle, of course-- plastic tables, menu board, burritos. I like it. 

It's located on Nicollet Mall, a street at the heart of downtown Minneapolis. This summer has been rough for that part of downtown. After two waves of violence and destruction-- the first after the death of George Floyd and a second, last month, that stemmed from an incident that turned out not to be police violence-- many of the businesses have closed for good, others appear headed that way, and all of them are boarded up. 

That includes my Chipotle; the doors are pictured in the photo above. You can tell it is Chipotle as you walk by because someone has written "Chipotle" in red marker on the right door. Something about that is especially sad, and I'm not sure how people know that the store is actually open.

For someone from Detroit, where swaths of the city over time were boarded up decades ago, and still are, this is especially sad to see.

Too often, though, people tell this story with the boarding-up as the starting point. And that's both odd and wrong.

The starting point here is 1619. 

I see that President Trump, out of his dislike for the 1619 project, wants to promote the teaching of "pro-American" history. It's a terrible idea. If you don't believe me, look at the photo above. That comes from not ever, ever, ever, really having an honest reckoning in this country with our racial history. Are we going to make that mistake again and avoid the truth?  

Saturday, September 26, 2020


The Death of Donny B.

 A friend sent this to me-- an anti-drug film from the 1960's that was mostly seen by suburban white kids. I found it both troubling and mesmerizing.

Friday, September 25, 2020


Friday of Haiku: Treat Yourself!


In these turbulent times, sometimes you just have to give yourself a little incentive-- a "treat yourself" carrot to dangle in front of your own nose.
For years, I did a big chunk of my academic writing in long chunks of time. But I gave myself a goal: if I completed x amount of work, I would go to a concert or an art exhibit or something when I was done. It totally worked!
So let's haiku about those treats we give ourselves. Here, I will go first:
It was a long drive
And 'fore I get home,  a stop: 
Hello, good ice cream!

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

Thursday, September 24, 2020


Political Mayhem Thursday: Does religion matter when we pick a Justice?


I'm a Christian who works at a Catholic school and who holds a chair in preaching. I've given sermons in six states for four different denominations. Religion is important to me, and I have thought and written a lot about the role of faith in public life (and tried to live with a role for faith in my own public life).

 As President Trump has prepared to nominate a new Justice to the Supreme Court, there has been a fair amount of (probably accurate) speculation that the pick will be 7th Circuit Judge Amy Coney Barrett. I have colleagues that know her and think highly of her, and others who very much against her nomination (the latter group, I should note, does not include people who know her).

Judge Barrett is Catholic and reportedly a member of an ecumenical group called People of Praise, which has Catholic roots and fewer than 2,000 members in the United States. People of Praise was founded in South Bend, Indiana, where Judge Barrett taught at Notre Dame. 

In reaction to the idea that Barrett might be nominated, some people have declared that religion should be off-limits as a topic of inquiry, and that questioning her about her religious beliefs would be a form of discrimination against Catholics. 

I'm wary of that argument, and I would like to explain why.

Implied in that bar is the idea-- sometimes expressed openly-- that faith does not impact a judge's work. And that's where they lose me.

Faith, if it is real and whole and genuine, isn't segmented into one part of life or another; the God you see and feel and believe in is the God of your entire life. That doesn't mean, say, that you are going to start talking about Jesus in court, but it does mean that your faith is going to direct you as to what is important and what moral imperatives can be addressed through your work. What is a belief in God if that God can't follow you to the office? 

The truth is that for all of us our faith or non-belief shapes us, especially in forming the very morality that is going to guide us in our most important choices... and it should. That means that to truly understand a candidate for the court, that bar must be breached. And it is a bar-- after all, laws often prohibit employers from asking candidates for a job about their faith. 

Another way in which faith is a legitimate area of inquiry is in regard to religious diversity on the Court. Again... faith influences what we think is important and how we see the world. That means a diversity of viewpoints is a good thing in a deliberative body that represents the nation as a whole.

Of the 8 Justices now, two are Jewish (Kagan & Breyer), five are Catholic (Kavanaugh, Thomas, Alito, Sotomayor, and Roberts) and one (Gorsuch) was raised Catholic but worships as an Episcopalian. According to the Pew Religious Landscape survey, about 21% of Americans are Catholic-- but that 1/5th of the nation makes up either 62% or 75% of the Court (depending on how you categorize Gorsuch). While Catholics have a super-majority on the Court (which would increase with Coney), they are outnumbered in the United States not only by Evangelical Christians and by "Nones"-- those with no religious affiliation. Yet, those groups have no representation on the court.

If you're wondering if I raised this point with Obama's picks, well, yes I did. It even led to this strange exchange with Linda Greenhouse and Jeffrey Toobin on CNN (you have to scroll down some to get to it).

Here is what I said then about Kagan (to USA Today) and I would say the same now regarding Barrett: "She should not be called upon to defend her religious beliefs but in those areas where belief is going to inform a justice's principles, they should be open in letting the public know this. It should be part of the broader public discussion."


Wednesday, September 23, 2020


YLS '90: Eric E. Jorstad

 I'm devoting Wednesdays on the blog to profiling my classmates in the Yale Law class of 1990. It's been an adventure.

Some of my classmates are easier to find than others. Sometimes I will throw their name into the googler and out comes thousands of hits: articles, photos, videos, the gamut. Other times there will be nothing at all. Once in a while, what I find is kind of reprehensible (ie, anti-LGBT briefs with a classmate's name at the bottom). And sometimes-- like this week-- I find just enough to be really intrigued (even though I couldn't find a photo).

Eric Jorstad was a little older than many of my classmates, but not much-- he had done some stuff before coming to law school.  He received a Masters of Divinity from Yale Div. School in 1982, and a second theology degree from Luther Seminary in St. Paul the next year, before serving as a Lutheran minister in Detroit.

After law school, he returned to Minnesota, clerked at the federal district court, and became a partner at Faegre & Benson (or Faegre and somebody-- they changed names a lot). Their offices are just a few blocks from mine.  He apparently has retired from the firm and might be in Arizona. ("might be in Arizona" is something you can say about a high percentage of Minnesotans). I did come across some recordings of his sermons.

What surprises me is that I haven't run into him! I mean... sermons, Detroit, Minneapolis, etc. But there is still time...

Tuesday, September 22, 2020


Take Me Down to Anarchy City...


Recently, President Trump and the Justice Department announced that they were cutting off funding to three "Anarchy Jurisdictions"-- New York, Seattle, and Portland.

 Is it just me, or does an "Anarchy City" sound pretty fun? I mentioned this on Twitter (@oslerguy, if you are looking), and Steve Skarnulis gave me this song to hum:

 Take me down to Anarchy City/Where the grass if green/and the girls are pretty/Ohhhhhhh.... take me down...

Now I can't get that out of my head. But, really, I think the NYC tourism board really needs to do something with this. I mean, can you imagine the art scene in Anarchy City? Or the music? I'm so sick of COVID Lockdown City that my desire for Anarchy City is strong.

 Anyone want to go with me?

Monday, September 21, 2020


Fall poems

 Some great stuff last week!

We had this from Jill Scoggins, which made me (appropriately) sad:

Where are the students?
They should be here. Our campus
is empty, bereft.

The Medievalist is, I think, still a Minnesotan:

It is not ninety,
Gray clouds maybe suggest rain,
The days grow shorter.

Christine had her own take:

The lake is still warm
but winds from the NNW
harder to paddle.

And Desiree had a poem that made me wonder about whether or not she has horses:

The barn is cooler
The horses don't sweat so much
And the flies are gone!

Sunday, September 20, 2020


Sunday Reflection: exhaustion

 I think a lot of people are really tired.

There is good reason, of course. 2020 has been a hell of ride, huh? A pandemic that won't go away. An economy in the tank. A degrading and depressing political season. The death of a beloved Supreme Court justice and a lot of other admirable people. Plus, for many of us, there have been other things related and unrelated to all of this. I see terrible things happening to people around me, which make my own little hardships seem like nothing.

I find that it makes me quiet.

And maybe that is good. We see that over and over in the Bible: Jesus retreats from the others, and we see him in quiet. 

Not that there is not a lot to fight for. And we all will do that. But in this moment, we probably need to be unapologetic about those moments of quiet.

Saturday, September 19, 2020


Ruth Bader Ginsburg


Ruth Bader Ginsburg died yesterday. The news broke as Rosh Hashanah began.

I know that there will be a rush of speculation about the political implications of her death, but I hope people will take a bit of time to reflect on her legacy first.

She was, like Thurgood Marshall, a renowned appellate litigator before she was a jurist. She broke barriers for women, and in winning those cases made our society better for both men and women.

On the bench, she had a passion and engagement with the work that she shared with Justice Scalia; both of them worked as if it really mattered.

She was kind to many people around her, and loved by those who were close to her. Those who were not near her respected, even feared, her intellect.

My female students often hold her up as a role model, and I like that. She is the right kind of hero to have.

I got to talk about her a little just after I heard of her death. You can hear that here, starting about 3 minutes into the segment.

Friday, September 18, 2020


Haiku Friday: Signs of Fall


In Minnesota, some signs of fall have arrived. Others have been canceled, it seems. I live close to where the high school band practices, and a sure sign of fall has been the sound of the drum line coming over the trees, followed by the brass and the rest. But not this year.

So instead I search for the perfect red leaf. I will find it and put it in the pages of a book I know that I will reread someday. And when I come across it then, I will think about the good. 

So let's haiku about the signs of fall we see and hear.

Here, I will go first:

The smell of wood smoke
Aligns with first frost; It sends
Me in search of wool.

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

Thursday, September 17, 2020


PMT: The House & Senate Races


There is a lot of attention given to the presidential race, but that masks what may be just as important: the race for the US House and Senate.

Before I continue, I do want to note that the horse-race aspect of politics is over-emphasized, and I don't want to exacerbate that here. Also, it isn't just important whether we elect Republicans or Democrats, but what kind of Republican or Democrats we elect. For example, 2018 saw the election of a fascinating group of Democrats in the House who are both moderate and have proven to be highly competent (in the mold of Chet Edwards). This group includes Minnesota's Dean Phillips and California's Katie Porter. Both of them beat incumbent Republicans in districts that lean Republican (or did until 2018). You may have seen Porter questioning testifying witnesses with remarkable clarity (as in this hearing, for example). I'm really encouraged by the rise of these new faces close to the center.

According to the Washington Post, there are 13 Senate races where there is some element of competitiveness. Of those, two involve incumbent Democrats and 11 feature incumbent Republicans:

Alabama (Dem. incumbent)

Arizona (Rep. incumbent)

Colorado (Rep. incumbent)

Georgia (2 Rep. incumbents)

Iowa (Rep. incumbent)

Maine (Rep. incumbent)

Michigan (Dem. incumbent)

Montana (Rep. incumbent)

North Carolina (Rep. incumbent)

South Carolina (Rep. incumbent)

Texas (Rep. incumbent)

Of these, I would be shocked--shocked!--if the challenger wins in Michigan, South Carolina, or Texas, or the incumbent wins in Alabama. I suppose it might happen, but... it would be a leap. 

That leaves Arizona, Colorado, 2 in Georgia, Iowa, Maine, Montana, and North Carolina in play, with the Democrats trying to pick up 4 or 5 (provided they lose in Alabama) to take control of the Senate. 

Of those, I find the Maine race particularly interesting. A good case can be made that Susan Collins has served her state well, but she has not adjusted well to the age of Trump, and probably will not survive the image she created by repeatedly being gamed by Trump.  "I think he learned his lesson" may be the epitaph on her political gravestone.

Montana is intriguing, too. Senator Daines and former Governor Bullock (a Democrat) have a lot of overlap in their policy positions. I saw Bullock speak at a tiny cafe in Newton, Iowa during his brief presidential campaign, and my observation as I watched was that the guy clearly belonged in Montana. Which is one reason he is so popular there. 

Georgia? Who knows? It probably will depend on who turns out to vote on that day. But with two seats in play-- and two close races-- the swing is significant. Kelly Loefler, the appointed Senator, has faced strong opposition from the WNBA team she owns, which is, um, not a good look.

In the end, the table slants towards the Democrats.

If they win, we will all be watching what they do with it. Despite the Trump campaign's inane blathering about Biden being captured by the far left, the truth is that Biden is a centrist who longs to forge good law in a bipartisan way. We know that because he acted that way for decades in the Senate, and says (to some derision) that he will do the same as president.  If moderates win their races in places like Montana and North Carolina, he will have allies in the Senate who can help him with those efforts. 

Wednesday, September 16, 2020


YLS '90: Me!

I've been devoting Wednesdays on the blog to profiling my classmates in the Yale Law class of 1990.

This week, I think I will finally get around to profiling myself. And that is pretty much summed up in this video about me and IPLawGuy:

Also, last week Megan Willome asked if I could explain what I meant when I said that some of my work is "The Guilty Project." This seems like a good time to do that.

Most people are familiar with the Innocence Project, which has worked for decades to free people who were wrongly convicted. I have great admiration for that work and the people who do it. Their tools are litigation and proving innocence, a difficult and crucial task so long as our system is imperfect (which it always will be). 

In clemency work, my task is different. Only very rarely is the basis for clemency that the convicted person is innocent. Rather, the basis most often is that the sentence is too long-- that they either were over-sentenced in the first place or have been rehabilitated (and sometimes both). They were guilty but oversentenced.

While innocence work has profound joy associated with it-- I can only imagine what it is like to prove that someone did not commit a crime and watch them walk free-- clemency work has a different set of emotions that go with it.

First, it means something that as part of clemency the petitioner does take responsibility for their actions. That can allow for a healing; clemency really is the oldest form of restorative justice. It can be remarkable to work with people through that process of becoming accountable and still believing (rightly) that they should be released from prison. 

In addition, the virtue of mercy is at the heart of clemency in a way that it is not involved in innocence work-- after all, justice, not mercy, is a better description of that correction.

The other reason I feel so strongly about clemency has to do with numbers. Relatively few people are convicted but innocent, but a huge number of people in our retributive society have been over-sentenced. Their imprisonment is making nothing better: it isn't improving them, it is not preventing crime, and it is not sending anyone a message about anything. It's a waste of money and, worse, the freedom we prize as a nation. We love liberty, and that means we should limit liberty as little as possible.

I'm happy with my guilty project. Because that guilt is in the past, and all of us have a future. I want to show the full lives of incarcerated people, beyond those few moments that have defined them in the eyes of the state.  In a quiet way, it can be whole and real and deeply fulfilling. 

Tuesday, September 15, 2020


Please read my very short academic essay!


This summer, I wrote an essay that pretty much sums up how I feel about narcotics policy. It's titled "What We Got Wrong in the War on Drugs," and you can download and read it here. I really hope you will-- and maybe put a comment in the section below if it leaves you with, you know, thoughts. Or not. But please just read it. Click on the link and then on the button at the top that says "download."

Here is the abstract:

The War on Drugs is effectively over. Drugs won. This essay addresses some of the mistakes we made in that futile effort. Allowing racism to motivate action and impede reform was a primary error. So was failing to understand that narcotics crime is simply different than other types of criminalized behavior in several fundamental ways. In whole, we largely addressed the narcotics trade as a moral failing rather than a market—and never got around to recognizing the size and shape of that market or to using market forces to control it. Ronald Reagan compared the War on Drugs to the Battle of Verdun, and he was right: fortunes were spent, many lives were lost, and nothing really changed.

Monday, September 14, 2020


Indelible images

 Nice haiku this week!

There was this from Jill Scoggins:

Jackie, JFK
in that car in Dallas. NO!
Go back, y'all, go back!

And a nice poem from David Best:

Real-life dead soldiers.
Killed by American might.
Things you don't forget.

The Medievalist excelled:

Jet into tower,
All billowing smoke and flame,
Crashing down, all dead.

And we got this from J-Say:

Until we are ash,
Rage has a scent that lingers
Oh blue where are you?

Sunday, September 13, 2020


Sunday Reflection: Fire

The images from California, Oregon and Washington are awful: smoke filled skies turn day into night, as fire consumes hundreds of thousands of acres. 

It is hard to see without thinking "apocalypse." It isn't that, of course, not in the Biblical sense, but it is transformative and terrifying. Experts say that global warming has created events that accelerate one another, as heat waves dry up the land that is then primed for fire, which diminishes the vegetation that cools down the environment in that area. 

It is confounding that our nation has chosen this path. We are almost alone among Western industrialized nations in rejecting any kind of serious effort to restrict global warming, and our inaction is used as an excuse by the worst offenders to not address their problems. Just as the global warming events create a causal chain, so do our political issues.

Is this a spiritual issue?

How could it not be? Who do people think created this Earth? How in the world can it be seen as something we consume rather than conserve? 

Saturday, September 12, 2020


Productive discussions/burning it all down

I have this piece in tomorrow's Waco Tribune. I hope it maybe makes a tiny difference in at least one person's discussions.

Friday, September 11, 2020


Haiku Friday: Images you can't get out of your head


There are some things we just can't forget. The depiction above, for example, will haunt me the rest of my years.
Let's haiku about those this week! Here, I will go first:
Roller coaster's peak;
 The girl with beautiful hair
Barfed on her friend.

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

Thursday, September 10, 2020


Political Mayhem Thursday: The Teflon Don

This picture appeared at the New York Times yesterday, adjacent to all of the following stories:

-- In taped interviews with Bob Woodward, President Trump revealed that he understood from the beginning that COVID was far more serious than the flu, was transmitted through the air, affected young people, and was a tremendous threat-- and yet he said the opposite to the American public in an effort to "play it down," as he told Woodward. Think about that: the President of the United States deceived the American public, intentionally, about a serious threat to public health.

-- The former head of the Department of Homeland Security's intelligence division-- within Trump's administration-- reported that he was directed to downplay threats from Russia. That's shocking if you think about it: throttling our own intelligence regarding a major threat. Plus, this "downplay" thing is really trending, and that's not good.

-- And the White House directed the Department of Justice to take over a defamation suit filed against President Trump by someone who accused him of rape, 10 months after the case began. As part of that, the DOJ claims that the president denying rape claims is something he does as part of the execution of his duties as president.

And yet...

It probably won't matter. Many, even most, of the people who support Trump don't care about any of that. And the fact that they don't-- that we have become a nation where a substantial part of the population just doesn't care about these important things-- is perhaps more dangerous than Trump himself.

Yes, I'm a Democrat. I voted for Obama, twice. But I was still fiercely critical of his timidity in the things I care most about, in a very public way (in the New York Times, in the Washington Post, in the Atlantic, and everywhere else I could lay out my thoughts).  We need to think critically not only about those we oppose, but those we support. What I fear is the fact that we are becoming a society where personality (or at least the perception of a personality) is more important than reality. The answer to these issues can't be that one likes Donald Trump because he "tells it like it is"-- the very essence of what Bob Woodward has on tape is that Trump does not tell it like it is.

What's at stake?

First, we face multiple crises at the same time: a pandemic, social unrest over racial prejudice, horrific environmental disasters including massive wildfires, and constant threats from our enemies abroad. Those things are too important to leave in the hands of someone we like because of personality. 

Second, I hear people say that democracy itself is at stake in this election. I don't think that's true-- after all, the outcome they fear is President Trump winning a democratic election. Rather, what is at stake is our status as a republic (that is, a non-monarchial government).  It appears that it is that which would decay further in another four years of Trump. Democracy itself would be at stake in the 2024 election. 

Rant completed.

Wednesday, September 09, 2020


YLS '90: Jim Brochin


I'm devoting Wednesdays on the blog to profiling my classmates in the Yale Law School class of 1990.

Jim Brochin was one of my favorite people to hang around with at YLS. I remember once coming across him as he was rollerblading through New Haven, and talking about hockey-- something we both found pretty fascinating. Jim was double-Yale, having graduated from the college in 1984, so he knew his way around. He was a great person to have in class, too: smart, insightful, and funny.

After law school he clerked for Hon. Kimba Wood in the SDNY, a prized clerkship given Wood's high profile and leadership in the bar. After that he worked for an Independent Counsel (but not that one) in the investigation into the former Agriculture Secretary, Mike Espy.

Since then, he has become one of the best white-collar defense attorneys in New York. He now works as a partner at Steptoe, where he has continued to be a leader in the field.

In addition, he has done a lot of work with the Innocence Project, which I greatly admire (but have never been affiliated with-- clemency work is more like the Guilty Project most of the time).  

If we ever get to have a reunion, Jim is one of the people I would most want to catch up with; I'm confident he has built up a pile of good stories I would love to hear. 


Tuesday, September 08, 2020


Understanding the role of extremism in the US

 At the moment, President Trump is trying to whip people into fear of left-wing extremists. Certainly, the evidence shows that such extremists exist, and that they can be dangerous. But the evidence also shows that right-wing extremists have done far more damage than leftists. The General Accounting Office-- hardly a biased source-- reports that over 70% of terrorist incidents in the US from 9/11 through 2016 (including those by Islamic terrorists) were committed by those on the right. Consider these incidents, for example (all of which were committed by people who publicly espoused right-wing ideology):

-- Timothy McVeigh was a right wing extremist who quit the NRA because he felt they were too weak on gun rights. He killed 168 innocent people and injured over 600 in the 1995 bombing of the Oklahoma City federal building.

-- Between 1996 and 1998, Eric Rudolph bombed abortion clinics, a gay bar and the 1996 Atlanta Olympics, creating over 100 causualties.

-- In 2008, a right-wing terrorist shot up a Unitarian Church in Knoxville, killing two and injuring eight people.

-- In 2010, a right-wing terrorist shot up a bookstore in in Wichita Falls, killing one and injuring four innocents.

-- In 2012, six people were killed by a right-wing terrorist at a Sikh temple in Wisconsin.

-- In 2013, six people were injured and one died in a right-wing terror attack at LAX.

-- In 2015, an attack on Emmanuel AME church in Charleston left nine dead.

-- In 2017, a car attack on counter-protesters injured 19 and killed one in Charlottesville.

-- 2018 was a big year for right-wing terrorists. They killed 11 people at a synagogue in Pittsburg, two people at a Kroger store in Kentucky, and two more at a Yoga studio in Florida.

-- In 2019, 23 people were killed by a right-wing extremist at a Walmart in El Paso.

President Trump argues that those who oppose him are lethally dangerous. However, it is those who support him who appear to be more dangerous. 

Monday, September 07, 2020


Five places, five perspectives

 In writing about what it is like this time of your, we got input from five very different places.

Christine is in North Carolina (but from Michigan):

Shadowy sunlight
the clock reads seven a.m.
The dogs still sleeping

Gavin is from the Dakotas:

Blood sucking skeeters
They ruled summer, but no more!
First frost frees us all.

Megan Willome is a Texan:

You must be alert
to notice Texas autumn,
but today, it's real.

The Medievalist is a Minnesotan:

Summer is over,
Cool nights, fresh mornings, short days,
Winter is waiting.

And Desiree hails from Virginia:

Never liked school, but
September meant new school clothes
and I did like those!

Sunday, September 06, 2020


Sunday Reflection: The power of names


A few nights ago I had a dream in which Darth Vader appeared. However, rather that "Darth Vader," he was identified as "Belligerent Dave." I'm not quite sure where that came from.

At any rate "Belligerent Dave" was not quite as intimidating. "Fear the wrath of Belligerent Dave!" just seemed kind of funny. And, of course, Belligerent Dave was predictably belligerent.

Names have power. Some of us have to grow into them, while others grow out of them. Some are rejected by their owners, who come up with something different. But whatever their origin, they mark us.

There are some names that bring back such strong memories: the names of beloved teachers, or quiet heroes. I'm always moved at the Vietnam memorial in Washington when I see people examining the wall, looking for the name that they know. That is the connection between that long-lost person and this widow or grandchild or friend. 

I always thought it was remarkably powerful how Jesus changed Simon's name to Peter, and how Saul became Paul after his conversion. It represents a change of all within.

Now, of course, I won't be able to see an image of Darth Vader without thinking "Hey! It's Belligerent Dave!"

Saturday, September 05, 2020


In yesterday's Star Tribune...


.... I had this piece (co-authored with Jon Geffen of Hamline|Mitchell law school) about the continuing COVID issue in Minnesota prisons. Oddly, the paper used the same photo they did with my last piece there!

Friday, September 04, 2020


Haiku Friday: The start of September; the start of everything

I taught my first class yesterday, and it was glorious-- real students in front of me. I was kind of giddy about it.

To me, this is the start of the year, when the calendar flips. And the day cooperated with that in every possible way. I walked into my back yard to do the crossword puzzle in the Times, and I went back in to get a sweatshirt. Which means that the heat has broken, and the chill of the evening is here (at least in Minnesota).

Let's haikus this week about this unique and kind of thrilling time of year. Here, I will go first:

The shadows got long
Sooner than I expected;
And the moon, golden.

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

Thursday, September 03, 2020


Potential Mayhem Thursday: The legacy of Bush v. Gore

If you are over 30 or so, you probably remember the December, 2000 Supreme Court decision in Bush v. Gore, which cut short a recount of votes in Florida, giving the election to George W. Bush. Part of that decision was premised on the fact that two different counting methods were used in different Florida counties.

In the opinion, the court included this odd line:

"Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

Everyone assumed it was a unique situation that would never come up again. In fact, the Court has not cited to it since. However, that precedent should scare us a little right now.

Imagine this:

The night of the election on November 3, the early returns show a Trump lead, but because mail-in ballots remain to be counted, there is no result announced.

Immediately, Trump sues to stop the counting of ballots, claiming the kind of irregularities cited in Bush v. Gore. Judges he appointed stop the counting in some places, and litigation makes a mess of the whole thing. In the confusion, Trump claims victory, and we never really know what the outcome should have been.

Bush v. Gore was a terrible decision. I think the Justices in the 5-4 majority justified it by imagining that the situation would not arise again. That could turn out to be an error of historic proportions.

Wednesday, September 02, 2020


YLS '90: Robert Rivera, Jr.

I've devoted Wednesdays on the blog to profiling my classmates in the Yale Law Class of 1990.

Robert Rivera Jr. was one of a small group of people coming to New Haven from Texas (he had just graduated from the University of Texas-Austin). Little did I know that I would later live in Texas for 10 years-- I should have asked more questions of friendly Texans like Robert.

After law school, his story is remarkably simple (especially compared to the wandering around people like me did on their way to finding their calling. 

Right out of school, Robert started working for Susman Godfrey, a large national law firm. He made partner in just five years. AND... he's still there. That's remarkable stability. He specializes in complex high-stakes litigation, and has worked on cases across the country and around the world. As someone who got worn out by simple high-stakes litigation (criminal prosecution), I admire his longevity in the field!

Tuesday, September 01, 2020


So, this guy has some plans...

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