Rants, mumbling, repressed memories, recipes, and haiku from a professor at the University of St. Thomas Law School.
Tuesday, May 31, 2022
The good car
A few years ago, I bought a used 2017 BMW 328d. It's a mild-hybrid diesel, and it is an awesome car-- fast, handles well, quiet, and on a long trip yesterday it got over 51 mpg, which is pretty incredible. I had been thinking of getting an electric car or a straight-up hybrid, but this seems to check all the boxes. It has a unique set of virtues. It would seem to be very attractive to people like me who want performance and great mileage but have trouble imagining an electric vehicle because of range problems on long trips (that is, running out of juice). It has proven to be the perfect answer!
Which means, of course, that they don't make it any more. Sigh.
When I was a kid, there was this sense of the world that rested on a hierarchy. We kids lived in a world of adults, who were older and wiser and would guide us to good decisions. Over time, as I became an adult, I had a similar, related belief: that there were wise people among us who would make good decisions in governing and leading our society. Soaring eagles, who saw things the rest of us didn't.
Then, at midlife, I found myself among those leaders. Some were my classmates from law school, or those in government that I work with, Some are good and some are not so good. But none are soaring eagles; we are all seagulls.
Jesus seems to see the world that way. He, of course, had knowledge none of us do-- if there was a soaring eagle, it was him. But he seemed to acknowledge the fallibility of the rest of us. The 5,000 on the hillside were not differentiated-- there was no VIP section. The two great commandments talk of God, and then all of us. That's pretty much it, isn't it?
When Russia invaded Ukraine, the consensus was that the war would quickly be over, with Russia over-running the outmanned Ukrainian forces. That turned out not to be the case. Certainly, Russian leadership gaffes and other factors played a role, but so did technology. Russia relied mainly on tanks, but Ukraine had an answer: Javelin anti-tank missiles. This video explains how they work:
I love the change of seasons-- I really do. That's one reason it is great to live in Minnesota, where the new seasons clomp in and announce themselves. Fall comes with color and sweaters and the faint sound of marching bands. Summer's narrator is a band of crickets and birds. Winter here is real winter, with December cold so bracing you hear the house creaking in the absence of wind.
And then there is Spring.
With such a short growing season, things just burst from the earth, jutting up towards the sun. In just a week or two, the landscape transforms. Fleets of kids on bikes appear, and the creek runs full. Geese and ducks fly high overhead, and sometimes stop in my neighborhood, greeting their friends.
So let's haiku about Spring. Here, I will go first:
My bike leaps to life
Me? I just kind of hang on
And enjoy the ride.
Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun!
It would be nice if there was some political movement toward preventing mass shootings, wouldn't it? Even something like an age limit of 21 for buying assault rifles would be something. But, sadly, that's probably not going to happen. There just isn't the political will and resolve to do even that.
Politics is only one route to change, though, and often it isn't the most important one. Culture can is a superior route to change-- and culture changes often lead to political changes. Consider same-sex marriage. TV shows and other cultural inputs, alongside and partly driven by the efforts of activists, changed the way people thought about that. Political change followed.
How do we change the culture of guns? Let's first look at the cultural inputs that drive gun purchases and mass shootings, whether it is gang members in the streets or a teenager in a school:
-- Movies and television shows too often create their drama through guns and shooting. If you flip through the channels on cable, it is astounding how many shows and films are rooted in gunplay. It's lazy writing. It's also a quiet evil in that it normalizes guns and the use of guns.
-- Too often, grievance and revenge are valorized. How many times have we seen a fictional hero who is wronged and seeks revenge with a gun in his hand? And, of course, we put ourselves in the position of the gun-wielder as we watch. That's a simple moral message that is deeply toxic.
-- We need to combat the idea that guns are tools of the powerful. They aren't. They are tools of the weak. When I see some guy in a store wearing a gun, I laugh a little. How pathetic it is for someone to go around imagining that people are about to attack him all the time! My experience has been that the people with the most guns are usually the people of least accomplishment, the ones I am unlikely to admire for what they have done in life.
-- Part of all this has to be diminishing the reflexive glorification of people who are in the military and in law enforcement. Do they have dangerous jobs that protect people? Some do. But so do public defenders. And roofers. And social workers. The only difference is that these others don't carry guns when they do their dangerous work. We need to stop seeing gun-based jobs as inherently of greater value than others. If you want to thank someone for their service and sacrifice as they protect our freedoms, try a public defender-- someone who deals face-to-face with accused murderers and robbers and rapists, without a gun.
Politics change when culture demands it. We've seen that go the wrong way for too long.
This morning I'll be giving the sermon at 1st Covenant Church in Minneapolis, at 10 am. I've got a lot of leeway on these things, and I will be preaching from Mark 16:
There is a lot going on there, of course. But since I was a kid I have been captivated by the young man in the white robe. We don't see him again. It's unclear if he is an angel or not, but I've always thought of him as an 18-year-old kid. What's compelling about him is this: he has one truth. He knows that Jesus is gone, and that they should go to Galillee. It's not a complicated truth, really. Jesus left. That's pretty much it. But it is a really important truth.
I've always thought that we should aspire to that: have one truth and let it be known. It will be different for each of us, probably, at least in inflection. But we all probably should have at least that one great truth that we can share.
There are people in power with not great truth in them, not even one. And there are some people who have one great untruth; we saw that last weekend in Buffalo.
It is safe to say that my chart was probably more important than I was at the hearings before the House Judiciary Committee yesterday. It was referred to a lot, and Rep. Cori Bush's offices now have it (thanks to Aya Saed). Thanks to IPLawGuy, who got it printed up!
Let's haiku about charts and graphs this week-- real ones, or those we wish we could see. Here, I will go first:
One arrow goes up
And that's all; this chart shows just
The price of diesel.
Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun!
Political Mayhem Thursday: The weariness of being right
After last weekend's mass shootings, the biggest of which was in Buffalo, I scanned the news stories about the events and noticed something troubling.
There was a lot of interest in the 18-year-old shooter, and some (though less) about the black neighborhood he terrorized. There was some accurate analysis about the endemic nature of racism and racial violence in our country. There was also talk about the media, and the internet source and platforms used by the shooter.
But... there wasn't much about guns, which marks a shift. With previous mass shootings, one reaction seemed to uniformly be that we need to curb the nearly unlimited access to guns that everyone-- and I mean everyone-- in the US appears to have right now. The country is just flooded with guns, and that was a part of the discussion after previous shootings.
This time, not so much. Perhaps it just is seen as futile to worry too much about a teen who gets an assault rifle despite having threatened to kill people at his school. Maybe there is a resigned weariness in the face of a political system that doesn't respond to the problem.
The question remains, though: are all these guns good for us?
This is a jam-packed time of the year! Sure, lots of grading to do... but lots of other stuff, too.
Yesterday I was sworn in as a member of the Minnesota Bar. Because I do federal work, I just maintained my Michigan Bar membership, and then was licensed to practice in the US Supreme Court, the WD of Texas, and the 1st, 2nd, 3rd, 5th, 6th, 8th & 9th US Circuit Courts of Appeal. But... it's looking like I may do some state work, so I hunkered down and did the (amazing amount of) paperwork to join the bar in Minnesota. I also had to take a test for the first time in 30 years-- the Multistate Professional Responsibility Exam-- which was a little nerve-wracking. But now I am in!
Then tomorrow I will be testifying in Congress-- the House Judiciary Committee's subcommittee on Crime, Terrorism & Homeland Security is having an oversight hearing on clemency, and I'll be the first witness (after a separate presentation by Rep. Ayanna Pressley). It's a fascinating committee, and I expect it to be a very interesting morning! The video will be available at the Youtube channel above.
And on Sunday, I will be giving a sermon at 1st Covenant Church here in Minneapolis, at 10 am. As always, all are welcome!
On Saturday, an 18-year-old white supremacist took an assault rifle to a grocery store in Buffalo New York and opened fire on the patrons. His writings make clear that he chose that store because it is in a black neighborhood and served primarily a black clientele. He had previously scoped out this target. He was an adherent to "Great Replacement Theory," something Fox News often flirts with, that holds that white Americans are being "replaced" by minorities and immigrants. It's the same ideology that has driven a number of mass shootings, including one at a Wal-Mart in El Paso in 2019.
This crime has everything to do with race and guns.
First, the shooter made very clear what his motives were-- posting a manifesto is about exactly that, after all. His 180-page screed described how he was radicalized on the internet and chose his target because that zip code had the highest percentage of black residents near him (and he then drove 230 miles to get there).
He did not make up his beliefs. He learned them. And others are learning them now: from the bread crumb trails on Fox News, and the rancid lumps of racism on 4chan and similar sites. Some suspect, too, that the racism rampant in gamer culture impacted him as well.
As for those bread crumbs, here is a sample from Tucker Carlson:
“The Democratic Party is trying to replace the current electorate, the voters now casting ballots, with new people, more obedient voters from the Third World,” Carlson said on Fox News Primetime. “If you change the population, you dilute the political power of the people who live there. So every time they import a new voter, I become disenfranchised as a current voter.”
As for the guns... I mean c'mon. This guy wrote that he wanted to commit a murder/suicide for a school project. He was held for a mental health evaluation. He posted his plans publicly. And yet he was able to obtain, legally, the perfect weapon for his task.
There's a lot going on! Yesterday was graduation, on Tuesday I will be sworn into the MN Bar (I've kept my Michigan bar membership all these years, but it was time to make it official with MN) and on Thursday I will be in Washington to testify in front of the House Judiciary Committee.
Graduation is emotional and wonderful and always different. Yesterday, as the professor of the year, I had the honor of putting the academic hoods on the graduates. It's not as easy as you might imagine! My first few tries looked like an attempt at assassination by strangulation, then I improved to merely awkward and after a while I got to be ok at it. Sorry, graduates whose names begin with the letters "A," "B," and "C"!
Afterwards, I got to meet the families of these people I have gotten to know over the past three years-- and I really love that part. A lot. It can explain so much! It's fascinating to hear the perspective of the parents, how they lived through the experience with their kids. Even more interesting are the spouses. Often they look kind of tired and thrilled all at once, which totally makes sense.
The bond between students and teachers, at its best, is a kind of agape love. Like all kinds of love, it requires patience and forgiveness and levity. Too often we lose sight of that.
Here's a fun fact: The Supreme Court of Canada has a mascot! It's name is Amicus the Owl, and it even wears red robes like the actual justices. (And no, I am not making this up). I'm not sure if the Court building is infested with mice or what, but they have their own owl.
Hmmm... what would our Supreme Court have as its mascot?
Let's haiku about that this week-- or anything else relating to the courts that you would care to share. Here, I will go first:
Amanda the mole
Might be our Court's special friend
Until they catch her.
Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun!
So... I've heard from some people asking if I am ok, as the blog didn't have a new post at midnight as usual. And, yes, I am ok!
There was a huge storm that came through last night, and it knocked out the power at my house (and thus, the internet). The power just came back in the last hour.
It's fascinating how dependent we are on electricity these days. Even with gas appliances, I noticed a big difference in how my evening proceeded, especially after darkness fell. Of course, at least it wasn't in the winter, when the heat would have been effected-- a big deal in a place like Minnesota!
Downtown, there was no problem with the power because the utility lines are all underground. Which made me think... why aren't they underground everywhere?
When you do what I do, your opinion is out there in the ether quite a bit. We law professors spend hours talking to our students in class, then write long articles, then many of us (these days) tweet our thoughts throughout the day. Sometimes, members of the press will want to talk about this or that legal issue, and sometimes we do that.
It's hard to be careful what you say all the time. And sometimes it is the things you say most carefully-- in long, thoroughly footnoted articles-- are what get you in trouble with people who hold opposing views. (See Bork, Robert).
Ilya Shapiro seems to find himself in trouble a lot lately, despite a strong record as a scholar at the Cato Institute (I have read and admired his work myself). He is a conservative, which means he is under more scrutiny because of the ideological imbalance of the academy. Even with that, he's said some things he probably wish he hadn't. Earlier this year, he was set to start a plum job at Georgetown Law School as director of the school's Center for the Constitution and a lecturer.
But then he tweeted out his thoughts on President Biden's Supreme Court selection process, saying (among other things) that Biden's decision to choose a black woman meant that people like his own preferred candidate (Judge Sri Srinivasan) would be neglected in favor of a "lesser black woman." It wasn't a tweet that aged well after Biden picked the eminently qualified Ketanji Brown Jackson.
Then, last week, he got another case of the blurts. He told a DC radio station, then Fox News, that he had heard that Justice Samuel Alito had gone into hiding in an "undisclosed location," a rumor that went crazy on the internet. It turned out he really didn't have a basis for that which he could remember.
It's so easy to say the wrong thing, of course-- but the consequences in such an interconnected world of uncensored media are such that the damage is too quickly done.
Today I have a piece in the Waco paper about abortion, because I'm an idiot-- there is no way you can write about that without making a lot of people mad. It's all land mines. Of course, that's kind of my thing. You can read it here.
Abortion comes down to when a person thinks life begins-- or if they don't really know. For some people, that belief comes from faith, but I just don't see an answer to that question in the scriptures. I have seen the arguments of others, and they haven't convinced me.
And what about those who don't really know? Well, in the US we usually err on the side of liberty.
When I wrote this piece, I knew that most of the people who read it would disagree with me-- it is the Waco paper, after all. I structured it with that in mind. So much of what I read about this is people venting rather than arguing. There is a place for righteous anger, but it is rarely good advocacy; it drives people away rather than affecting their views.
I hope you will read what I wrote, and understand where I am coming from.
I was quoted (accurately) in Politico this week. But, um, no, not in THAT story. You can read the thing I did talk about here.
In the past, I have dealt with Josh Gerstein, one of the two Politico reporters who broke the leaked opinion in Dobbs and associated information (ie, the breakdown of the vote). He's kind of renowned for his network of sources. Once he called me about some information I was compelled to keep secret. I was impressed by how dogged he was-- it's a good trait in a reporter (though it did not work on me).
War-- a real, major war-- in Europe. Inflation, crazy gas prices, the great resignation, soaring housing costs, all at once! A Supreme Court willing to cast aside established precedents, and uncertainty about how far that will go. A pandemic that seems to go on forever.
I don't know about you, but I thought the post-Trump years might offer a respite from reflexively checking the news every 20 minutes.
But, I suppose, it is different-- now the mayhem is not being directly caused by the administration, right?
One thing I'm wondering is whether there is an inverse correlation between mayhem seeking bands and actual news. In other words, the more we have mayhem in real life, the less we need the Insane Clown Posse...
It's pretty rare (other than with haiku) that I lift something from the comments section to the main floor here, but I feel compelled to do exactly that with New Christine's comment on yesterday's post re the Dobbs case and the legacy of Roe v. Wade. Here it is:
As a life long Catholic, a very outspoken and often very critical
Catholic, I have maintained a position that the Church’s advocacy for
‘Life’ and the continued efforts to outlaw abortion were mostly
misguided . . . as is much of the Pro-Choice movement.
of debating when life begins, ‘personhood’ and the many other nuances of
both the Pro-Life and Pro-Choice movements have, more often than not,
done little to provide safe and secure homes to feed, clothe, shelter
and educate the children’s lives that their contentious ‘Advocacy’
professes should be ‘Cherished’ . . . cherished while in the womb and
often ‘unseen’ once outside the womb.
Amongst a large segment of
our citizenry that advocates ‘not’ for universal health care, paid
family leave, early pre-school, affordable day care, the dignity of
work, affordable housing, expanded nutrition programs and more . . .
it’s time both the Catholic Church and the Pro-Choice movements come
together to ‘step-up’ their game . . . cast down their placard printed
slogans and march into the communities they profess to serve and
practice what they preach . . .
From Matthew 25: `Truly, I say to you, as you did it to one of the least of these my brethren, you did it to me.'
 for I was hungry and you gave me no food, I was thirsty and you gave me no drink,  I was a stranger and you did not welcome me, naked and you did not clothe me, sick and in prison and you did not visit me.' 
Then they also will answer, `Lord, when did we see thee hungry or
thirsty or a stranger or naked or sick or in prison, and did not
minister to thee?'  Then he will answer them, `Truly, I say to you, as you did it not to one of the least of these, you did it not to me.'
the walls that divide, often only ‘talking points’ of both the Pro-Life
and Pro-Choice movements are heard . . . hearts and hands unseen and
It’s time to ‘tear down’ the walls that separate,
look into each other’s eyes, ‘See’ our brothers and sisters for who they
truly are, join hearts and hands . . . and come together for the
benefit of ‘All God’s Children’ . . . –
Politico is making public what it claims is a draft majority opinion in the pending Supreme Court case of Dobbs v. Jackson Women's Health Organization, which challenges a strict Mississippi law that restricts abortion. The document announces the straightforward rejection of Roe v. Wade and it's protections for abortion. In short, the opinion allows the states to regulate or outlaw abortion as they wish.
To my eye, it seems likely to be genuine. It's authored by Alito and likely will be signed onto by Kavanaugh, Barrett, Thomas, and Gorsuch (though that is not certain at this point). Chief Justice John Roberts' views are unknown. The style is typical of Alito-- perhaps a little toned down for him, actually-- and it is cast with an eye to getting a majority from those other justices with similar views. The fact that Alito presents it as for "the court" tips that the votes are in to overturn Roe.
In short, the analysis comes down to a flat rejection of the reasoning in Roe and subsequent cases (particularly Casey) which held that the Constitution provides some protections for abortion. If this opinion is issued, there will be no such thing as "abortion rights," at least under the federal constitution (states could include abortion rights in their own constitutions).
If it's real, it represents a real sea change. And I think it is real.
One of the data sets I study closely is the Pew Research Center's Religious Landscape Study, which surveyed about 35,000 people in all 50 states about their beliefs and affiliations with religious denominations. They completed the survey most recently in 2014, and it is time for a new one-- I am anxious to see the effect that the pandemic has had on religious affiliations and beliefs. My hunch is that it will shocking (at least to church leaders).
One great tool is that you can break down the data by state, revealing the striking differences between distinct parts of the country. For example, in Alabama, 86% of the population identifies as Christian, with 49% of the population identifying as Evangelical Christians (as distinct from the 7% who identify as Catholic, 16% who identify as "traditionally Black Protestant" and 13% who identify themselves as part of mainstream Protestant churches). Meanwhile, in Vermont only 54% identify as Christian, and only 11% describe themselves as Evangelical. Alabama and Vermont have very different cultures, and this disparity is a part of that difference.
Every time I see these surveys, though, they lead me to this goofy exercise where I break down the percentage of Mark Osler that can be identified with each faith. I think this is the current breakdown:
Mainline Protestant: 44%
Other Christian: 26% (Society of Friends)
Yeah, I'm kind of a mess-- but I've never been one to make my faith about a denomination. And I'm sure that Mormons would be appalled at the idea of being 1% Mormon (and also upset, apparently, about being called Mormons).