January 31, 2005

FYI: Farnsworth

Those who remember contracts may be interested in the e-mail Columbia Law School students received from the dean this morning: Farnsworth's Contracts
Professor Allan Farnsworth passed away this morning. Professor Farnsworth, the Alfred McCormack Professor of Law, was himself a 1952 graduate of Columbia Law. Educated also at the universities of Michigan and Yale with degrees in mathematics and physics, he was widely recognized as one of the nation's foremost authorities on contracts and commercial law. Professor Farnsworth taught generations of Columbia Law students since 1954, when he became a member of our faculty. In five decades on our faculty, Allan made an invaluable contribution, touching thousands of lives and building Columbia's reputation as a global center for the study of contracts. This is a great loss for Columbia, and for the legal academy.

CLS also recently lost Dean of Admissions James Milligan, for whom a memorial service will be held this afternoon.

UPDATE: And in the less-serious category of Internet departures from Columbia Law School, count the Blakely Blog, to which Jason Hernandez no longer will post. Thankfully he appears to be leaving it up, so it may continue to be a resource on the constitutionality of sentencing guidelines.

UPDATE II: Reminiscing about Professor Farnsworth tonight during Law Revue rehearsal, one student sighed, "I'll never look at the Restatement the same way again." Initially we thought she was being a little too flippant for good taste, but then she told the tale:

On the first day of Contracts, Prof. Farnsworth called on a 1L to discuss a case. Farnsworth asked, "So what are the authorities cited?"
1L: "There don't seem to be any, just the Restatement."
Farnsworth: "And what is the Restatement?"
1L: "Uh, we learned about it in Legal Methods, it's just a bunch of law professors getting together and writing what they think the law is."
Farnsworth: "I'm glad you think so highly of my work."

Supposedly that wretched 1L spent the rest of the semester trying to read everything that Farnsworth had ever penned, some of which was quite appropriate to the situation. Alleviating Mistakes: Reversal and Forgiveness For Flawed Perceptions; Changing Your Mind: The Law of Regretted Decisions...

UPDATE III: Monday, February 28, 2005

Memorial service for Professor E. Allan Farnsworth
2:30 p.m.
St. Paul's Chapel
Columbia University Campus

Reception (immediately following the service)
Law School Drapkin Lounge
Third floor, Jerome Greene Hall

Thursday, March 3, 2005

Interment in Arlington National Cemetery
11:00 a.m.
For directions, please go to: http://www.arlingtoncemetery.org/

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Today/ January 31

Today in History (1876) - The United States orders all Native Americans to move into reservations.

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January 30, 2005

It's Feeling Like That

The statement of fact for moot court is due tomorrow. My partner thinks it's done. I'm convinced that it's not, that we are missing many facts that we'll want to bring up in our briefs and oral arguments but won't be able to because we left them out of the statement of facts. So I find myself trying to write the brief now so I'll know what facts I'll want to bring up.

"Yes, your Honor, it is true that my moot court client is a total fucking crazy bitch with no case whatsoever."
-- Classmate's away message

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January 28, 2005

To Legit

While I didn't quote this in my posting of quotes below, my Immigration prof said something yesterday that piqued my interest. She mentioned one particular way to legitimate a child in CA that sounded a lot like a law in Ancient Athens.

The relevant CA provision is the Cal. Fam. C. Sec. 7611(d), where, "A man is presumed to be the natural father of a child if:"

"He receives the child into his home and openly holds out the child as his natural child."

Now the Athenian law, it should be made clear, required that the child be born from a woman who was legally married to a citizen. THEN, and only then:

"When an Athenian woman bore a child, it was normal for the father to make a formal acknowledgement that the child was his. This was usually done at the dekate, a family gathering on the tenth day after the birth, when the hcild was named. The dekate was a religious celebration rather than a legal requirement, but legally it was important to the child that his paternity should be acknowledged, for on it depended both his membership of the oikos [family or household] and his citizen status." Douglas M. MacDowell, The Law in Classical Athens, 91.

There are a couple of things that jumped out at me in class. The first was the obvious question of citizenship. This idea was introduced in a discussion of a case about a Haitian claiming citizenship through the naturalization of his father. Since he was never married to the mother and since there were never any formal court proceedings to award custody, this provision of the CA law was used to establish the father-child relationship.

The second is the emphasis on publicly acknowledging a child as yours. I was a bit taken to see a law like this in a Western country which is not known as an honor/shame culture, the understanding being that in honor/shame cultures the head of the household would not let a child born of shame (basically out of wedlock) into his family. This, of course, comes up quite frequently in discussions of the Birth of Jesus (I'm too lazy to sort through the google searches to offer a representitive sample). If we assume the veracity of the immaculate conception, then there's a huge dilemma facing Joseph. But of course, "Because Joseph her husband was a righteous man and did not want to expose her to public disgrace, he had in mind to divorce her quietly. But after he had considered this, an angel of the Lord appeared to him in a dream and said, �Joseph son of David, do not be afraid to take Mary home as your wife, because what is conceived in her is from the Holy Spirit." (Matthew 1:19-20, NIV). So you see the importance of legitimating children in honor/shame cultures and how this had to be explained. This is why I was surprised to see such a provision in CA law.

The more I think about it though, the more I realize that this should not be all that surprising. Aside from this religious tradition, the family remains the nucleus of American culture. If the key elements of a familial relationship exist, then that relationship should be granted all the rights and privileges thereto. Now about same-sex marriage...

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January 26, 2005

Things We Said Today

I was flattered last week when Evan Schaeffer mentioned my blog (shameless self-advertisement #4482775) in his Weekly Law School Roundup. The theme last week was Rolling Stones tunes. This week, Beatles. In an attempt to get De Novo onto the ranks of the who's who of the blawgsphere, I will try to liveblog quotes from classmates during my remaining classes this week, with as little context as possible of course.

"How do you reconcile Bridges with McAvoy?" (Answer in casebook and in McAvoy opinion)

"You want me to argue it right now?"

"I don't know what to write, so I'm not writing it down." -- young, visiting property prof from Michigan.

Stay Tuned for Written Oral Advocacy (WOA), Civ Pro, and maybe Immigration.

WOA is me...meaning that there was no wireless so I have resort to instant replay for that one.

�But Schwarzenegger has a lot of letters.�

�My view is that we should call him Governor Schwarzenegger to confer more respect.�

OK the rest is liveblogging from Civ Pro (topic of discussion, burden of pleading).

"So it's only ten pages but it's hard." -- Civ Pro prof sharing last name with Married with Children family.

"He was a piece of work." -- same prof

"He's the only Supreme Court justice known to have fought a duel." -- prof talking about same person (Stephen Field

Prof: "I'm sure there's some wisdom in there."
Student: "Yeah way down there."

"I think the textbook is correct." Prof, referring to textbook co-authored by self. Eagerly waiting for day when he says, "I think the authors got this wrong."

"That is the issue, but let me come back to the question I asked you." -- Prof.

Oh and number of times De Novo mentioned as the standard of review? 9 Come back tomorrow for a recap of Immigration and more Civ Pro.

Only one thing to report from Immigration...

"And Noonan slept through the whole hearing." -- Prof, talking about her oral arguments in Barthelemy v. Ashcroft

And we're back with the last class for the day and it looks like we're off to a good start...as we walk in there's a box of donuts in the front of the class courtesy of the prof.

[as class quiets down to get started] "As you can see this is a kind of edible abacus to take attendance."

"It says if A and B and C unless there is, what is it, E? I forgot how far along I got."

"It is a very common argument. I don't think it gets you anywhere."

Prof: "Ms. _____ you have a thought?"
Ms__: "Oh I don't want to interrupt you."
Prof: "Oh I don't want to interrupt YOU."

"...whether to arrest or not [CELL PHONE RING] oh my God, I thought I'd turned this off. Oh it's my daughter, I have to call her back." -- Prof

With that, I present to the gentle readers things we said today, and YESTERDAY, and the day before. Huh? What? "You said you will love me?"

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Lobby Like It's 2004

At Law Dork, Chris recently predicted that President Bush would push the Federal Marriage Amendment to win votes for the 2006 election. A. Rickey commented,

You want to see the FMA put back on the agenda, made not "just an election issue"? It will be, when next pushing it makes more sense than just sitting on one's victories. When might that be? Well, my bet would be either when a legislative attempt to overturn Goodridge fails, when another state supreme court mimics Goodridge, or when someone makes a FFC challenge to a state DMA using Goodridge.

Bush didn't make it clear that anything was a vote grab. Good tactics suggest that he spend his political capital elsewhere, because there are bigger issues and, frankly, momentum is at least temporarily on his side now. [...] To put it more bluntly: the trigger for the FMA isn't the 2006 elections. It's the next judicial move.

Both Chris and Tony may be wrong.

The New York Times reported yesterday that the Arlington Group, a coalition including Dr. James C. Dobson of Focus on the Family, the Family Research Council, the Southern Baptist Convention, the American Family Association, Jerry Falwell and Paul Weyrich, recently sent Karl Rove a letter threatening to withhold support for Bush on Social Security reform unless Bush pushes the FMA. On Monday, Senate Republicans promised to reintroduce the amendment eventually, though Sen. Rick Santorum (R-PA) said they'd prefer to wait until they saw better chances for passage.

If there's real political substance behind this move, the Arlington Group and the voters it claims to represent -- "countless voters who stood with him just a few weeks ago, including an unprecedented number of African-Americans, Latinos and Catholics who broke with tradition and supported the president solely because of this issue" -- may induce Bush to bring the FMA back up before either Chris or Tony predicted.

Of course, Karl Rove might do the math, decide that Social Security reform has enough support from the country-club Republican types who would be put off by a drive for a socially regressive alteration of the Constitution, and tell Dobson et al., "Thank you very much for your votes, but you can't hold the president's agenda hostage."

Still, the letter is very much of a piece with the media's reporting about how Christian conservatives feel emboldened by post-election claims that moral values propelled Bush to victory, and are ready to press for making their priorities Bush's own.

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Today / January 26

Today in the History of Ken Starr's Happiness (1996) - Hillary Rodham Clinton testifies before a grand jury regarding Whitewater. Two years later, Bill Clinton denies on television that he had "sexual relations" with former White House intern Monica Lewinsky.

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January 24, 2005

You Call it Chocolate, I Call it Addiction to Gambling*

The online casino that is the law school grade information system has just opened and everyone is hoping to come out a winner. Much like every other casino, the same rules apply: House always wins and the odds are against you, unless you find a single deck blackjack table that allows you to double down on a split.

There are many other casinos just like it. Some have flashy fountains (even if they don't dance to music) or wireless internet access in classrooms, others have low limit tables, but only relatively speaking of course. All universally have high stakes to begin with (think future career, earnings potential, mate, etc.) So all the players approach the casino with high anxiety and incredible superstitions, sometimes these develop long before one's eyes are set on the casino of choice.

But we all approach the same game. Parts of it are eerily familiar with other common casino games, but it doesn't quite encompass a single game. Almost everyone knows the basic strategy before any gaming takes place. Once the wheel is spun, however, people place their bets. Like gamblers in a cheesy Downtown Vegas casino, law students fall into several, predictable categories. The most noticeable are the ones who game at the margins. Most of their effort is to make sure that they come out the winner in the event of a tie. A push just is not good enough for them. They hit at 18 and piss off everyone else at the table. (In law school talk these are the people who aim to get the higher grade in the event of a tie in exam scores by participating in class to the best of their lungs' abilities).

The next group bets on the ultimate outcome. Within this group there are two subgroups. First there are those who bet that seven will not come. No matter who's rolling the dice, we all have an equal chance of winning or losing from the outset. Your lucky streak is my lucky streak. So on and so forth. Naturally, this brings us to the second group who bet that seven will come. They bet against you. You think that you're the shit by rolling 11's and hard 10's? Well screw you, they still bet against you. And you know what? The odds are with them. They are betting with the house that eventually, you will be like the multitudes before you who have done no better than the curve.

The next group consists of those who use unorthodox methods to alter the odds from the onset, collectively known as suckers. The cheaters fall into this category, though rarely do they escape the all seeing-eye of the Honor Code. Others spend "intimate" time with the dealer or shower him with gifts (see e.g. title of post). Often these people are so fascinated by a slight showing in their favor that they will interpret a glitch in the system as a sign that their unorthodox methods are working. To them I say, keep using outlines in Swahili.

The last group are the luckies. They enter the house expecting nothing, and walk away with the cars, comps, dealers, hookers, and anything else in between. Oh yeah, buffets.

Of course, all bets are off once you pull the slot and none of the lines win. Maybe next pull. There's always that chance, that hope...you too could walk out with an oversized cardboard check.


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January 23, 2005

Today / January 24

Via Professor Bainbridge, today is the worst day of the year. And in SCOTUS history, Thurgood Marshall passed away on this day in 1993.

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Culture War Territories

Another blow to the smug belief that my side is more tolerant than that of conservatives: Rolling Stone magazine has created controversy by refusing to run an advertisement that they claim violates a policy against religious messages:

The offending advertisement was a high-concept number from Zondervan, the Christian publishing behemoth in Grand Rapids, Mich., that has a new translation of the Bible coming out next month called Today's New International Version, or the TNIV. It's a 21st-century tuneup of its 1978 New International Version, which is the best-selling English translation of the Bible in the world.
Like any good English major, I regard most bibles other than the King James Version (uninspired and erroneous though it may be theologically) to be illiterate pretenders. But a magazine that's put Clay Aiken, whom the Sun-Times's Cathleen Falsani calls a "crooning neo-Opie," on the cover clearly has no policy against illiterate pretenders.

Events like this make me worry that not only is the right shutting itself away from different ideas, but that the left is doing the same, and eventually we'll all be trying to pretend that no one unlike ourselves exists. While all the private sector and individual decisions to boycott The Other Side certainly are protected as a matter of law, they diminish the impact of the First Amendment. The shrinking public square is giving way to a multiplicity of private sector outlets for fact and opinion, from Focus on the Family newsletters to the Rolling Stone.

Cass Sunstein ("thump" goes PG's heart) covered this ground in Republic.com, but I'm not sure that he sufficiently covered how traditional media -- like the Stone, published since 1968 -- can be just as narrowing as the Internet, and how this narrowing is chosen by the people bringing us the message, not just by consumers. After all, the average Rolling Stone reader probably considers himself to be a pretty open-minded person, though I don't share Falsani's conviction that there's much overlap between the market for the Stone and that for a new Bible translation. Still, if Zondervan wants to pay to advertise, and the ad is neither grossly dishonest nor likely to be outright offensive to readers, there's no reason for a profit-making magazine not to take the money and run.

In particular, if the ideas expressed by the advertisement are ones unlikely to show up in the Stone's own content, permitting access to the magazine through ads is particularly important. The Christian publishing behemoths of the world can't get their view of the world into liberal outlets' reporting and editorials, but they still can squeeze into the ad pages -- and in many magazines, advertisement pages outnumber real content anyway. Sunstein might criticize this as "market theology," but in the current situation, it's the best chance for competing messages to be heard.

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January 21, 2005

Come Up and See Me Sometime

Am quasi-live blogging Columbia Law School's symposium "Sentencing: What's at Stake for the States?" this weekend at Ex Post, the CLS Federalist blog. FYI: Judge Pryor, recess-appointed to the Eleventh Circuit Court of Appeals, will deliver the keynote address.

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January 20, 2005

Orwell meet City of Los Angeles, City of Los Angeles meet Orwell

Buried in the online edition of today's LA Times was this little gem about the City Council asking the City Attorney's office to petition the California Supreme Court to (hold your breaths for this) strike a decision of the California Court of Appeal for the 2nd District from the official reporter. Oh yeah, the three-judge panel unanimously held that council-members not paying attention during procedings that are effectively judicial in nature violates due process.

Here's a particularly telling excerpt from the story:

"The Los Angeles City Council, which was busted by a state appeals court for not listening during a public hearing, now wants to ensure the stinging rebuke can't be cited as legal precedent.

In closed session Wednesday, the council voted 10 to 0 to have the city attorney petition the state Supreme Court to remove the court ruling from legal books. Five members were absent."

I almost feel awkward writing anything beyond this. Do they SERIOUSLY think they are being intellectually (or otherwise) honest? I mean I know I'm talking about the same City Council that rolls to work in style (see e.g. Beth Shuster, "Lincoln Sets the Standard for City Council Members," L.A. Times, Jan. 15, 2000, B1), but there has to be SOME common sense hiding in that chamber somewhere. And in case it's lost on any of the members: YOU ARE THERE TO SERVE YOUR CONSTITUTENTS, NOT CUT DEALS IN THE BACKROOMS WHILE PEOPLE SCREAM AT THE TOP OF THEIR LUNGS. I'm almost tempted to yearn for the days of the Spanish Viceroys. At least they had the semblance of listening to complaints...or so I hear. But I digress, back to the case at hand.

"'We're saying that the facts are unique to this case,' said Katie Buckland, a spokeswoman for City Atty. Rocky Delgadillo. 'We don't think it's a good precedent for any time a government body is meeting.'

She said the city was concerned that, strictly applied, the ruling could mean that the council must always sit "still and silent" during any proceeding, not just a quasi-judicial hearing."

Heaven help us if ANYONE tells the Council that they should actually pay attention to government business.

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January 19, 2005

Today / January 19

Today in History (1946) - General Douglas MacArthur establishes the International Military Tribunal for the Far East in Tokyo to try Japanese war criminals. Thirty-one years later, President Gerald Ford pardons Iva Toguri D'Aquino (aka Tokyo Rose).

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January 18, 2005

Turning a Deaf Ear to American Sign Language?

This is not law related per se, but I'll try to tie it in below. The LA Times has the following story on students taking American Sign Language (ASL) to satisfy foreign language requirements. (For you Lexis afficionados, Stuart Silverstein, "Wary of Taking Spanish or French? Raise Hands" Jan. 18, 2005).

Apparently, while some schools enthusastically offer credits toward foreign language requirements for those who take ASL, others are not so eager. Silverstein writes, "Although the list of colleges approving ASL for foreign-language entrance or graduation requirements keeps growing, some prominent schools, including such California campuses as USC and Pomona College, are holdouts. They contend that ASL � unlike, say, French � doesn't open a window into another country's culture." This position is refined by Boston University, College of Arts and Sciences Dean, Jeffery Henderson, who argues that the traditional approach "doesn't aim only for students to achieve a certain competence in a language but also [to learn] a language that provides access to the culture of another society. That's what's under debate, because ASL is a North American language."

For sanity's sake I will assume that U$C and Pomona do not mean to imply that if I took Kurdish or Basque they would not count as a foreign language since they don't open a window to a particular country's culture. What is a country's culture anyway? I dare anyone to tell a Barcelonian that he shares his culture with a Castillian. [Do this at your own risk and only if you enjoy fireworks of the metaphorical sort.] Now granted, by studying ASL, you're being exposed to an American sub-culture. But I hardly think this is grounds for objecting. I think the vast majority of people who take Spanish (including your courageous author who could not tell you what the subjunctive is on penalty of death) do so for practical reasons WITHIN the United States. So the North American objection is meritless.

I think exposure to deaf (and on a larger scale, disabled) culture is a wonderful thing. [Tie-in to law school] In one of my classes there is a deaf student who must watch signers intently during lecture while morons like me play solitaire instead of paying attention. Maybe it's a moment of my conscience feeling guilty for having all 5 senses, but I certainly wish I had taken ASL instead of Spanish. At least my hands would have been put to better use than dragging and dropping the Ace of Spades.

[In the interest of full disclosure and some personal ranting, I went to North Hollywood High School in Los Angeles, home of the Highly Gifted Magnet, from which a student is quoted in the story quite laudingly. Six years ago, I wrote a letter (lexis required) to the LA Times criticising their coverage of the magnet. I guess some things just don't change. Again, nothing against the magnet and the kid quoted, but honestly, when you put the best and the brightest of LA together, yeah no shit they're going to do amazing things]

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January 17, 2005


Chris Geidner's Law Dork now resides at http://www.chrisgeidner.com/blog/.

UPDATE: Also currently making the rounds. I recommend it as a gift for the firm at which you're a summer associate. Whether it will be a nice gift or a Trojan horse depends on how much you trust W&V, I guess.

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A Solved Mystery

Why Californians can't drive in bad weather (First, we have Januarys that look like this, and second drivers tend to take photos instead of concentrating on that other task). Note: Photo of Hwy 68 en route to PCH and Monterey Peninsula.

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January 15, 2005

Today / January 16

Today in Recent History (2002) - A student shoots six people at the Appalachian School of Law; three of those shot die, and the school recently settled a lawsuit filed by survivors. John Ashcroft announces that "American Taliban" John Walker Lindh would be tried in the United States.

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January 13, 2005

Confidence Intervals and Reasonable Doubt

Linking to Dana Mulhauser's analysis of Booker, Will Baude wonders whether she is correct in saying that the beyond a reasonable doubt standard "is usually taken to mean that the jury must be at least 95 percent certain of its decision."

My second Criminal Law class is in nine hours, so I'm guessing, but I think this figure may be tied to statistics. I took statistics for economics, but that was in another century and besides the grade was bad, so take my explanation with a grain of salt. Confidence intervals are usually calculated so that we are 95% certain of our results; that is, the margin of error is roughly two standard deviations. And if it's good enough for political polling and the Census, I guess it's good enough for convictions.

The CrimLaw textbook* says that when a trial judge tried to explain degrees of proof on a scale of zero to ten, and said beyond a reasonable doubt was seven and a half, he was reversed by the Nevada Supreme Court (McCullough v. State, 1983), which said, "The concept of reasonable doubt is inherently qualitative. Any attempt to quantify it may impermissibly lower the prosecution's burden of proof, and is likely to confuse rather than clarify." U.S. v. Walton (2000) says the same: the trial judge had refused to define reasonable doubt even when the jury requested that he do so, and Fourth Circuit affirmed with the same "confuse rather than clarify" rhetoric.

* So how worthless are the sentencing sections of our textbooks now?

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January 12, 2005

Inefficient Hors D'oeuvres

Second semester of 1L year, and at least in New York City, that means one thing for law students. Not establishing an individual sense of jurisprudence, or becoming a New Yorker, or even knowing all of one's classmates.

Nope, January is Firm Reception Month. The first few weeks back are booked solid with various events around the city: pool halls, bars, restaurants, even law offices. A few are scheduled at the same time, giving us the difficult dilemma of picking between an Asian dinner and American appetizers. Certainly most of us never would enter some of these establishments without the assurance that we wouldn't be saddled with the check.

The classmate on my left at tonight's affair wondered what the point of this exercise was. He'd talked to an associate at the sponsoring Somebody & That Other Dude, and he was enjoying the free food and drink, but he couldn't figure out what was in it for the firms. They weren't courting us to work for them this summer; heck, most of them wouldn't even look at our resumes. Is it building good will for the summer associate hiring process we'd undergo this fall? or for recruiting us after graduation? Or do the big firms really just have this much money to burn, and figure to expiate their sins by feting hungry students?

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Sorting Through Booker

I'm just going to post on this as I'm reading the opinion; corrections of my first impressions are welcome, and probably will be necessary, as it's much more complicated than the AP's first report would suggest (and the Blakely Blog is in Ft. Lauderdale, so that's no help). Even the New York Times article, posted a good three hours after the decision was announced, neglects to mention that it's not as simple as "the 17-year-old federal sentencing system is invalid insofar as trial judges, rather than juries, have been ruling on the facts that go into determining time behind bars." Indeed, one would have to look at both the headline "Supreme Court Rules Judges Are Not Bound by Sentencing Rules" and the text to capture the full story. As Will Baude says, "Indeed, it is almost as if the piece springs from a wonderland where the Breyer opinion did not exist."

Look at the breakdown: "STEVENS, J., delivered the opinion of the Court in part, in which SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. BREYER, J., delivered the opinion of the Court in part, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and GINSBURG, JJ., joined. STEVENS, J., filed an opinion dissenting in part, in which SOUTER, J., joined, and in which SCALIA, J., joined except for Part III and footnote 17. SCALIA, J., and THOMAS, J., filed opinions dissenting in part. BREYER, J., filed an opinion dissenting in part, in which REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ., joined."

The majority follows Stevens's opinion with regard to the first question presented, "Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant."

A reconstituted majority, which of the original majority includes only Justice Ginsburg (this may out-weird Powell as the one-man majority in Bakke), follows Breyer's opinion with regard to the second question, "If the answer to the first question is 'yes,' the following question is presented: whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction."

Of course, the answer to the first question is yes, and Breyer essentially says, "Well, if you say 'yes' to that, then you have to say that mandatory guidelines themselves are unconstitutional." In his dissent, Breyer frets that "the Court�s Sixth Amendment decision would risk unwieldy trials, a two-tier jury system, a return to judicial sentencing discretion, or the replacement of sentencing ranges with specific mandatory sentences." Justice Scalia's dissent from Breyer's opinion for the Court sneers:

If the Guidelines are no longer binding, one would think that the provision designed to ensure compliance with them would, in its totality, be inoperative. The Court holds otherwise. Like a black-robed Alexander cutting the Gordian knot, it simply severs the purpose of the review provisions from their text [...]

The question is, when the Court has severed that standard of review (contained in �3742(e)), does it make any sense to look for some congressional
"implication" of a different standard of review in the remnants of the statute that the Court has left standing? Only in Wonderland. (This may explain in part why, as JUSTICE STEVENS's dissent correctly observes, ante, at 12, none of the numerous persons and organizations filing briefs as parties or amici in these cases�all of whom filed this side of the looking-glass�proposed, or I think even imagined, the remedial majority's wonderful disposition.)

For less sarcastic severability analysis, try Thomas's dissent, which also focuses on the facts of the cases actually before the Court.

Although Columbia 3L Jason Hernandez has failed us today by being away from a computer when we needed him, check out his blog even before he gets back just to see the impact people are anticipating the ruling to have, as in the comments to this post.

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January 10, 2005

Today / January 11

Today in Activist Federalist History (2000) - Kimel v. Florida Bd. of Regents, declaring the Age Discrimination in Employment Act to be unconstitutional when applied to the states, was decided; United States v. Morrison, holding the Violence Against Women Act unconstitutional due to the limited reach of the commerce clause, was argued. Both decisions were 5-4 with the usual split.

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Wireless is More or Less a Moral Lesson

In the middle of the fall semester a few students here at Boalt asked students to sign a petition. While I'm generally in favor of anti-gravitational levitation to protect ants who commute on the same path as humans, I wasn't too sure about the petition to have wireless internet access in the classrooms.

I signed the petition anyway, in part with the mistaken belief that it would save more ants, but then I began doubting my decision very quickly. I'm paying money for a legal education, not any of the bells and whistles. If other schools want to have the latest technological advances, they're more than welcome to do so, but does that obligate Boalt to accomodate current students' whims? No, probably not.

Probably and not definitely because it goes without saying that there's a lot that tech advances can add to learning. I just fail to see how wireless internet access in the classroom adds anything. (If anyone is willing to testify under oath that he/she used wireless internet access to quickly look up a case, etc. for the sole purpose of enhancing his/her learning experience then I'm willing to reconsider, but until then, I still maintain that there is nothing of educational value to be gained from wireless in the classroom).

"OK fine, Armen, you're right that there's no OBLIGATION to add wireless in classrooms, but it would go a long way to make current students happy and attract top talent."

So playing Yahoo Games, IMing in the classroom, or answering e-mails, is your idea of happineess while in law school? And do we really want 0Ls who will make their decision on the fact that they will be able to partake in said activities while in class? I say no thanks. But if anyone's interested in signing a petition to have DirectTV in every seat, let me know.

Posted by Armen at 4:15 AM | Comments (11) | TrackBack

January 5, 2005

Chief Does Not Speak A Lot During Oral Arguments?

As I said below, there's considerable talk about the next Chief Justice of the United States in the blawsphere. Well, Legal Affairs Magazine is also hosting an online debate regarding the possibility of a Chief Justice Thomas. Stephen Presser would love to see a Chief Thomas, while Prof. Samuel Marcosson would not. Incidentally, Prof. John Yoo of Boalt Hall and torture memo fame thinks Thomas can spread more conservative rhetoric as an associate justice.

Posted by Armen at 10:08 PM | Comments (1) | TrackBack

Today / January 5

Today in Capital Punishment History (1993) - Washington State executes Westley Allan Dodd by hanging (the first legal hanging in America since 1965).

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January 4, 2005

Today / January 4

Today in History (1965) - President Lyndon B. Johnson proclaims his "Great Society" during his State of the Union address.

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January 3, 2005

A Sentence or Two

I was pointed to an article by Gary Fields in Dec. 30th WSJ (paid subscription required, or see here if you have access to ProQuest thorugh a proxy server). The gist: more crimes are prosecuted under Federal laws than state because Feds have tougher sentencing.

There are a couple of angles in the article that I want to take up, so you'll have to excuse the jumping around.

Clever use of interstate commerce

In the first part of the article, Fields writes:

"Many of the laws draw on the federal government's constitutional authority to regulate interstate commerce. Proving a link to interstate commerce is rarely a problem. Most gun crimes involve a weapon that was made in a different state and most drug deals involve contraband that came from out of state or from abroad. In Mr. McFarland's case, the federal prosecutors' theory was that the money he stole could have been used by the stores in Fort Worth to buy out- of-state goods."

As a labeled bleeding heart liberal, I'm outraged that criminals are being sent to prison (errr... I mean getting sentences higher than they deserve). Conservatives and Libertarians ought to notice the vast expansion of Federal power. The states' rights conscious Rehnquist Court may also be worried about such loose interpretation of interstate commerce, see e.g. United States v. Lopez or United States v. Morrison. Obviously there are people who research these things for a living so I'm not going to say too much, but I have a few thoughts. Clearly a carte blanche interpretation of the commerce clause would pretty much defeat the purpose of federalism. On the other hand, there are clear instances where local laws are not sufficient to serve justice. For example, in the early '90s when the four officers involved in the Rodney King beating were acquitted in state court, they were tried in U.S. District Court for civil rights violations. I'm sure there are some outliers who think that this was a great travesty that reinforced "the man's" power to meddle in local affairs, but for the most part I think we can agree this was an appropriate instance of the Feds coming in. But to substitue for the inadequacies of local legislatures (if any) is a bit questionable. Which brings us to the rest of the article...

Disparities in Sentencing

Apparently the greatest reason why local officials actively seek out Fed prosecutions is because the mandatory Fed sentencing guidelines are quite harsher than state mandatory minimums. Related to the above rant about federalism, this justification is really troubling.

1. Local laws are more responsive to the local population's views of just desert. If justice really IS the goal, then why not apply those laws? Again there is a an element of fine line here where I think there are instances where local laws, even if embraced by the local population, are inadequate.

2. The mentality behind these prosecutions is the "I'm going to get the highest sentence possible" mindset. While I can see readers out there thinking there is nothing wrong with this, in my own posts I've criticized such a position with the support of the traditionally tough-on-criminals Fifth Circuit:

"The government�s brief, which argued stridently that every one of the district court�s decisions actions was justified, is surprising to this court, because the responsibility of the Department of Justice, in its representation of the United States in criminal proceedings, is to do justice and to see to it that the law is followed, not to obtain the highest possible sentence in every case." -- United States v. Andrews.

I just cannot comprehend this. If you're a local DA why are you actively trying to avoid prosecuting someone under your own laws? Am I missing something in the sense that the DA's job is something broad in a superhero sort of way, such as reducing crime or fighting bad guys?

3. Politics, local or otherwise. As Fields writes:

[Former felon found bullet in home he was staying and refurbishing and placed it in a box] "Mr. Yirkovsky wasn't arrested that day. Instead, local police conferred with the state prosecutor and determined that Iowa law didn't prohibit a convicted felon from possessing ammunition. Federal law did, however, and the case ended up on the U.S. attorney's desk.

In hectic big-city jurisdictions, federal prosecutors probably wouldn't have bothered with the case. In Cedar Rapids, though, the U.S. government decided to get involved. Patrick J. Reinert, the assistant U.S. attorney who prosecuted the case, says it's worthwhile for the federal government to go after repeat criminals who don't seem to have rehabilitated themselves -- especially if federal law provides the easiest route to prosecution."

Again, I really don't see a good or even decent justification for using Fed law just because it has tougher sentences. Which takes us to the third concern.


I won't even pretend to know a damn thing about the Blakely decision, but Fields writes, "The gap between federal and state sentences could expand if the Supreme Court strikes down guidelines that currently govern most federal sentences." Huh? So far as I understood the decision I thought it was about using evidence not introduced at trial to go above the sentencing guidelines of Washington State. If that is in fact the meaning of Blakely, how is this likely to increase sentences (as opposed to reducing sentences or keeping them the same)? Any and all of those three possibilities are equally likely to occur depending on what evidence is introduced at trial. This summary seems to say the same thing.

Fields, however, is talking more about the current cases before the SCOTUS regarding the Fed sentencing guidlines. Even then, the question before the Court is: "whether the imposition of a Guidelines sentence based on a determination of fact that is neither found by a jury nor admitted by a defendant violates the Sixth Amendment to the United States Constitution." That is, the existence of sentencing guidelines is not at issue here but the facts used to increase a sentence. So we're once again back to square one. There is really no way that any SCOTUS ruling resulting from Blakely can allow judges to go higher than the sentences currently prescribed.

But I continue to plead ignorance.

Posted by Armen at 4:10 AM | Comments (2) | TrackBack

January 2, 2005

Settling the Score

So, my UCLA Bruins had a fourth quarter melt-down against Wyoming in the prestigious Las Vegas Bowl. My Cal Golden Bears welcomed Texas Tech into their end-zone for a lot of holiday celebrating. And yesterday that school that has burnt orange uniforms and hideous cowboy attire for their marching band beat Michigan with a last second field goal. If this doesn't restore co-blogger Buffalo Wings & Vodka's emotional health to the Liza Minelli level, I don't know what will. On the bright side, only one of us will NOT be having a surgery in the next month. (I think that's sore loser talk for best wishes and hope that the surgery goes well.)

Oh and apparently we have some converts here on the Left Coast.

Posted by Armen at 1:42 PM | Comments (1) | TrackBack

January 1, 2005

Today / January 1

Today in History (1808) - Importation of slaves into the United States is banned. Fifty five years later, Abraham Lincoln delivers the Emancipation Proclamation during the second year of the American Civil War.

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