The Columbia Continuum
Monday, 20 May
16:00
Since it was founded 12 years ago this week, Wikipedia has become an indispensable part of the world’s information infrastructure. It’s a kind of public utility: You turn on the faucet and water comes out; you do an Internet search and Wikipedia answers your question. People don’t think much about who creates it, but you should. We do it for you, with love.
Wikimedia Foundation Executive Director Sue Gardner, from http://blog.wikimedia.org/2013/01/14/wikipedia-the-peoples-encyclopedia/
As Sue says, the people who create Wikipedia are terrific. I’m lucky enough to say that I’ve just wrapped up my first three months as their lawyer – as Deputy General Counsel at the Wikimedia Foundation. Consider this the personal announcement I should have made three months ago :)
 - Wikimania 2012 Group Photograph, by Helpameout, under CC-BY-SA 3.0.
Greenberg Traurig was terrific for me: Heather has a wealth of knowledge and experience about how to do deals (both open source and otherwise), and through her, I did a lot of interesting work for interesting clients. Giving up that diversity and experience was the hardest part of leaving private practice.
Based on the evidence of the first three months, though, I made a great choice – I’ve replaced diversity of clients with a vast diversity of work; replaced one experienced, thoughtful boss with one of equal skill but different background (so I’m learning new things); and replaced the resources (and distance) of a vast firm with a small but tight and energized team. All of these have been wins. And of course working on behalf of this movement is a great privilege, and (so far) a pleasure. (With no offense to GT, pleasure is rarely part of the package at a large firm.)
The new scope of the work is perhaps the biggest change. Where I previously focused primarily on technology licensing, I’m now an “internet lawyer” in the broadest sense of the word: I, my (great) team, and our various strong outside counsel work on topics from employment contracts, to privacy policies, to headline-grabbing speech issues, to patent/trademark/copyright questions – it is all over the place. This is both challenging, and great fun – I couldn’t ask for a better place to be at this point in my life. (And of course, being always on the side of the community is great too – though I did more of that at Greenberg than many people would assume.)
I don’t expect that this move will have a negative impact on my other work in the broader open source community. If anything, not focusing on licensing all day at work has given me more energy to work on OSI-related things when I get home, and I have more flexibility to travel and speak with and for various communities too. (I’m having great fun being on the mailing lists of literally every known open source license revision community, for example. :)
If you’d like to join us (as we work to get the next 1/2 billion users a month), there are a lot of opportunities open right now, including one working for me on my team, and some doing interesting work at the overlap between community, tech, and product management. Come on over – you won’t regret it :)
Monday, 06 May
08:00
As a slight sequel to my “feed reading is an open web problem” post, so far this weekend I have taken the following information diet steps:
RSS feeds: 610→339 (and counting).
Based on Google’s stats, I’d probably read about a million feed items in Reader. This is just too much. The complaints about attention span in this piece and in The Information Diet rang very true. Reader is a huge part of that problem for me. (Close friends will also note that I’ve been mostly off gchat and twitter during the work day since I started the new job, and that’s been great.) So I’ve spent time, and will spend more time soon, pruning this list.
National news feeds: lots→~0; weekly paper news magazines: 0→2; local news feeds: small #? →large #?
My friend Ed put in my head a long time ago that national news is not very useful. It riles the passions, but otherwise isn’t helpful: you’re not making the world a better place as a result of knowing more, and you’re not making yourself happier either. So you’re better off reading much less national political news, and much less frequently: hence the two new on-paper subscriptions to weekly news magazines.
Besides allowing you to get off the computer(!), the time saved can also be used to focus on things that either make your life better (e.g., happier) or that give you actionable information to resolve problems. To tackle both of those needs, I’d like to curate a set of local news feeds. I’ll be blogging more about this later (including what I’m already reading), but suggestions are welcome. I suspect that will make me much happier (or at least less angry), and present opportunities to actually do things, in ways that the national news obviously never can.
Moved from reader→feedly.
The impending shutdown of Reader was obviously the catalyst for all this change; feedly seems not perfect but pretty solid. I continue to keep an eye on newsblur (still a variety of issues) and feedbin.me (no mature Android client yet), since feedly is still (1) closed source and (2) has no visible business model – leaving it susceptible to the same Reader shutdown problem.
 - “Two young children picket for the ILGWU carrying placards including ‘I Need a Healthy Diet!’ outside the Kolodney and Myers Employment Office” by the Kheel Center at Cornell University, used under CC-BY 2.0.
Steps still to come:
Separate the necessary from the entertaining
Joe pointed out to me that all news sources aren’t equal. There are feeds you must read in a timely manner (e.g., for me right now, changes in work-critical Wikipedia talk pages), and feeds that can be sampled instead. The traditional solution to this is folders or categories within the same app. But we’re starting to see apps that are optimized for the not-mission-critical entertainment feed stream (Joe specifically recommended Currents). I’d like to play with those apps, and use one of them to further prune my “serious feeds” list. Recommendations happily accepted.
Improve publication
I do want to participate, in some small way, in the news stream, by creating a stream of outbound articles and commentary on them. I never used Reader’s features for this, because of the walled garden aspect. Many of our tools now make it easy to share out to places like Twitter and Facebook, but that means I’m contributing to the problem for my friends, not helping solve it. I’d like my outbound info to be less McDonalds and more Chez Panisse :) The tools for that aren’t quite there, but this morning I stumbled across readlists, which looks like it is about 90% something I’ve been looking for forever. I’ll keep keeping an eye out, so again: good suggestions for outbound curation tools happily accepted.
What else?
I hate the weasely “ask your audience” blog post ending as much as anyone, but here, I have a genuine curiosity: what else are friends doing for their info diets? I want to eventually get towards the “digital sabbath” but I’m not there yet; other tips/suggestions?
Monday, 22 April
09:00
I’ve long privately thought that Firefox should treat feed reading as a first-class citizen of the open web, and integrate feed subscribing and reading more deeply into the browser (rather than the lame, useless live bookmarks.) The impending demise of Reader has finally forced me to spit out my thoughts on the issue. They’re less polished than I like when I blog these days, but here you go – may they inspire someone to resuscitate this important part of the open web.
What? Why is this an open web problem?
When I mentioned this on twitter, an ex-mozillian asked me why I think this is the browser’s responsibility, and particularly Mozilla’s. In other words – why is RSS an open web problem? why is it different from, say, email? It’s a fair question, with two main parts.
First, despite what some perceive as the “failure” of RSS, there is obviously a demand by readers to consume web content as an automatically updated stream, rather than as traditional pages. Google Reader users are extreme examples of this, but Facebook users are examples too: they’re no longer just following friends, but companies, celebrities, etc. In other words, once people have identified a news source they are interested in, we know many of them like doing something to “follow” that source, and get updated in some sort of stream of updates. And we know they’re doing this en masse! They’re just not doing it in RSS – they’re doing it in Twitter and Facebook. The fact that people like the reading model pioneered by RSS – of following a company/news source, rather than repeatedly visiting their web site – suggests to me that the widely perceived failure of RSS is not really a failure of RSS, but rather a failure of the user experience of discovering and subscribing to RSS.
Of course, lots of things are broadly felt desires, and aren’t integrated into browsers – take email for example. So why are feeds different? Why should browsers treat RSS as a first-class web citizen in a way they don’t treat other things? I think that the difference is that if closed platforms (not just web sites, but platforms) begins to the only (or even best) way to experience “reading streams of web content”, that is a problem for the web. If my browser doesn’t tightly integrate email, the open web doesn’t suffer. If my browser doesn’t tightly integrate feed discovery and subscription, well, we get exactly what is happening: a mass migration away from consuming (and publishing!) news through the open web, and instead it being channeled into closed, integrated publishing and subscribing stacks like FB and Twitter that give users a good subscribing and reading experience.
To put it another way: Tantek’s definition of the open web (if I may grotesquely simplify it) is a web where publishing content, implementing software that consumes that content, and accessing the content is all open/decentralized. RSS is the only existing way to do stream-based reading that meets these requirements. So if you believe (as I do) that reading content delivered in a stream is a central part of the modern web experience, then defending RSS is an important part of defending the open web.
So that’s, roughly, my why. Here’s a bunch of random thoughts on what the how might look like:
Discovery
When you go to CNN on Facebook, “like” – in plain english, with a nice icon – is right up there, front and center. RSS? Not so much. You have to know what the orange icon means (good luck with that!) and find it (either in the website or, back in the day, in the browser toolbar). No wonder no one uses it, when there is no good way to figure out what it means. Again, the failure is not the idea of feeds- the failure is in the way it was presented to users. A browser could do this the brute-force way (is there an RSS feed? do a notice bar to subscribe) but that would probably get irritating fast. It would be better to be smart about it. Have I visited nytimes.com five times today? Or five days in a row? Then give me a notice bar: “hey, we’ve noticed you visit this site an awful lot. Would you like to get updates from it automatically?” (As a bonus, implementing this makes your browser the browser that encourages efficiency. ;)
Subscription
Once you’ve figured out you can subscribe, then what? As it currently stands, someone tells you to click on the orange icon, and you do, and you’re presented with the NASCAR problem, made worse because once you click, you have to create an account. Again, more fail; again, not a problem inherent in RSS, but a problem caused by the browser’s failure to provide an opinionated, useful default.
This is not an easy problem to solve, obviously. My hunch is that the right thing to do is provide a minimum viable product for light web users – possibly by supplementing the current “here are your favorite sites” links with a clean, light reader focused on only the current top headlines. Even without a syncing service behind it, that would still be helpful for those users, and would also encourage publishers to continue treating their feeds as first-class publishing formats (an important goal!).
Obviously solving the NASCAR problem is still hard (as is building a more serious built-in app), but perhaps the rise of browser “app stores” and web intents/web activities might ease it this time around.
Other aspects
There are other aspects to this – reading, social, and provision of reading as a service. I’m not going to get into them here, because, well, I’ve got a day job, and this post is a month late as-is ;) And because the point is primarily (1) improving the RSS experience in the browser needs to be done and (2) some minimum-viable products would go a long way towards making that happen. Less-than-MVPs can be for another day :)
Sunday, 14 April
06:00
The emphasis on private sector jobs is for two reasons.(1) Republicans frequently claim that a job on the government payroll isn't a "real" job, but mere make-work -- even if it produces useful goods or services, such as the roads and bridges built during the New Deal.(2) The austerity-driven cuts in public sector jobs, particularly at the state and local levels, have been a significant drag on
Sunday, 17 March
22:00
Since it has been roughly one year since Mozilla nominated me to sit on the OSI board, I thought I’d recap what I’ve done over the course of the year. It hasn’t been a perfect year by any stretch, but I’m pretty happy with what we’ve done and I think we’re pointed in the right direction. Because my primary public responsibility on the board has been chairing the license committee, this can also sort of double as a review of the last year in license-discuss/license-review (though there is lots of stuff done by other members of the community that doesn’t show up here yet).
Outside of licensing, my work has consisted mostly of cheerleading the hard work of others on the board (like Deb’s hard work on our upcoming DC meeting and the work of many people on our membership initiative) – I haven’t listed each instance of that here.
 - “Wikimedia Deutschland offices in Berlin, during the tour at the Chapters Meeting 2011“, by Mike Peel, under CC-BY-SA 2.5. (Mind you, CC is not actually OSI-certified ;)
Some things that got done:
- Drafted and published a beta Code of Conduct for license-discuss/license-review. This was drafted with the intent that it will eventually be a CoC for all of OSI, but we’re still formally beta-testing it in the license committee community.
- Revised the opensource.org/licenses landing page to make it more useful to visitors who are not familiar with open source. Also poked and prodded others to do various improvements to the FAQ, which now has categories and a few improved questions.
- Revised OSI’s history page. The main changes were to update it to reflect the past 5-6 years, but also to make it more readable and more positive.
- Oversaw a number of license submissions. I can’t take much credit for these- the community does most of the heavy lifting. But the group submitted in the past year include AROS, MOSL, “No Nonsense“, and CeCILL. The new EUPL is in the pipeline as well.
- Engaged Greenberg Traurig as outside counsel to OSI, and organized and hosted a board face-to-face meeting at Greenberg’s San Francisco office space.
- Helped keep lines of communication open (and hopefully improving!) with SPDX and OKFN.
Some projects are important, but incomplete:
Some projects never really got off the ground:
- I wanted to get GNOME to join OSI as an affiliate. This, very indirectly, spurred the history page revision mentioned above, but otherwise never really got anywhere.
- I wanted to have OSI reach out to the authors of the CPOL and push them to improve it or adopt an existing license. That never happened.
- I wanted to figure out how to encourage github to require a license for new projects, but got no traction.
I hope that this sounds like a pretty good year- it isn’t perfect but it felt like a good start to me, giving us some things we can build on for future years.
That said, it shouldn’t be up to just me – if you think this kind of thing sounds useful for the broader open source community, you can help :)
- Join license-discuss, or, if you’re more sensitive to mail traffic, but still want to help with the committee’s most important work, join license-review, which focuses on approving/rejecting proposed new licenses.
- Become a member! Easier than joining license-discuss ;) and provides both fiscal and moral support to the organization.
Friday, 01 February
08:00
Day 4
And I have not left the burrow, other than one time, late last night, to get provisions for me and the animals. I could have carried on, but they must eat, and their stockpile of food had dwindled over the past reckless week.
Hooray for Presidents! Hooray for sleeping in! Hooray for multislacking! (Isn't that what it's all about? Oh, right. Presidential ski trip. I forgot to plan that.)
Listen the snow is falling over town
Listen the snow is falling everywhere
Between Empire State Building
And between Trafalgar Square
Listen the snow is falling over town
Listen the snow is falling over town
Listen the snow is falling everywhere
Between your bed and mine
Between your head and my mind
Listen the snow is falling over town
Between Tokyo and Paris
Between London and Dallas
Between your God and mine
Listen the snow is falling everywhere
Snow dream
Snow fall
Snow fly
Listen
Listen
- Galaxie 500 version (Yoko Ono)
I love New York.
To be avoided: Bravo (the qualuudes are complimentary!) Pizza on 5th Avenue, near 20th Street.
In response to the recent survey which found that 51% of all American women live without a spouse, the NYT asks, Why are there so many single Americans?
I can think of one reason:
[Content no longer available. Lawyers get testy!]
This week I won a $100 bet that Kerry would not run for POTUS. (Hanging out with trash-talking guys is becoming a real source of income for me.)
I have another $100 riding on a bet that Gore will not run, and $100 that the Dems will put up Hillary and Obama against the Republican nominee.
Easy money. Difficult to collect.
And as progressive and powerful as a Hillary-Obama ticket may sound, it may not be such a good thing. More Republicans will come out to vote against Hillary than Democrats who will vote for Hillary. Even with Obama as a running mate, do we really think otherwise? (I'd love to be wrong about this.) I'm not just talking out of my ass. I'm basing this on readers' comments to Judith Warner's "Trying to Imagine a Woman in the White House." Most took the time to say, "Yes, but not Hillary." It's a small sample, and probably not statistically significant, but very telling nonetheless. One would think that the average commenter on a NYT blog is not a raging Republican. And in fact, many of the commenters describe themselves as die-hard Democrats. And they write that they would not vote for Hillary. Are these fringe Democrats? The ones who voted for Nader? 5%?
This has me a little concerned in that I just want a Democrat in the White House. And any one of the leading Democratic candidates would be phenomenal in comparison to another Republican. Even Hillary. And you all know it. But if we are going to be choosy, let's choose the candidate who can beat the Republican nominee. It's early days, and I couldn't for certain tell you who that is, but isn't that really our goal?
The old crack: sea salt & vinegar potato chips
The new crack: sea salt and cracked black pepper potato chips
(enjoyed in moderation)
Monday, 28 January
18:00
tl;dr: the open license ecosystem assumes that sharing can’t (or even shouldn’t) happen without explicit permission in the form of licenses. What if “post open source” is an implicit critique of that assumption – saying, in essence, “I reject the permission culture”? If so, license authors might want to consider creating options that enable people to express that opinion.
A few months back, James Governor said:
While the actual extent of “POSS” is debatable, there is definitely an increase in the amount of unlicensed code out there. This post suggests 20+% of the most-watched github projects are unlicensed. The pushback against licensing isn’t specific to software, either – at least some sharing musicians are deliberately spurning Creative Commons (via Lucas) and Nina Paley has been obliquely making the same point about the licensing of her art as well.
A few months back, I pointed out that the lack of licensing led to confusion and so was great for lawyers. That post was accurate, but slightly glib. Here, I want to grapple more seriously with the rejection of licensing, and provoke the licensing community to think about what that means.
A dab of history and context
In the US, prior to the 1976 Copyright Act, you had to take affirmative steps to get a protectable copyright. In other words, you could publish something and expect others to be able to legally reuse it, without slapping a license on it first.
Since the 1976 Act, you get copyright simply by creating the work in question. That means every blog post and every github commit is copyrighted. This restrictive default, combined with the weakness of fair use, leads to the “permission culture” – the pernicious assumption that you must always ask permission before doing anything with anyone’s work, because nothing is ever simply shared or legally usable. (This assumption is incorrect, but the cost of acting that way can be high if you make a mistake.)
 - Permission, by Nina Paley.
“POSS” might be more than just bad hygiene
It is easy to assume that the pushback against licenses (“post-open source”) is because licensing is confusing/time-consuming and people are lazy/busy. While I’m sure these are the primary reasons, I think that, for some people, the pushback against licenses often reflects a belief that “no copyright should mean no permission needed”. In other words, those people choose not to use a license because, on some level, they reject the permission culture and want to go back to the pre-1976 defaults. In this case, publishing without a license is in some way a political statement – “not every use should need permission”.
Fixing(?) the politics of our licenses
If some “no license” sharing is a quiet rejection of the permission culture, the lawyer’s solution (make everyone use a license, for their own good!) starts to look bad. This is because once an author has used a standard license, their immediate interests are protected – but the political content of not choosing a license is lost. Or to put it another way: if license authors get their wish, and everyone uses a license for all content, then, to the casual observer, it looks like everyone accepts the permission culture. This could make it harder to change that culture – to change the defaults – in the long run.
So how might we preserve the content of the political speech against the permission culture, while also allowing for use in that same, actually-existing permission culture? Or to put it more concisely:
What would a “license” that actively rejects the permission culture look like?
A couple of off-the-wall options:
- Permissive+political preamble license: The WTFPL license (“Do WTF you want“) has been floating around for ages, and using it makes the point that (1) you want people to use your code and (2) you’re irritated that they even have to ask. Adding a brief “I hate that I have to do this” preamble to a permissive license like CC-0 might serve a similar purpose, while providing more legal certainty than WTFPL. (And of course such a preamble could also be used with a strong copyleft, like copyleft-next.)
- Fair Use supplement: Fair use is the traditional safety valve for copyright, but it is hard to know if a particular use is “fair.” So a “license” could be written that, instead of formally licensing under specific terms, instead aims to provide more certainty about fair use. Some ways this could be done would include broadly defining the fair use categories, explicitly accepting transformative use as a factor in the fair use analysis, or asking courts to interpret ambiguity in favor of the recipient instead of the author. It is also possible to imagine this as a supplement to the existing fair use clauses in modern licenses (CC-BY 3.0 Sec. 2, GPL v3 Sec. 2, MPL 2 Sec 2.6), laying out a strong vision of fair use to help guide and protect anyone relying on those clauses.
- “What People Actually Think Copyright Is” license: most Americans think that personal use of copyrighted materials is legal under modern copyright law. So a license that focused on personal use might work better than the more nebulous “non-commercial”. As a bonus, since commercial interests will clearly be unable to use the content, getting it “right for lawyers” may be less of a concern.
Careful readers will note that the last two options are unlikely to be OSI-open or FSF-free. For the purposes of this exercise, that’s OK- OSI, FSF, and CC’s iron-clad assumption that licensing is good is what I’d like to provoke people to think about here.
Conclusion, and provocation
I don’t offer these license ideas as a comprehensive survey of what an anti-permission-culture license might look like, or even a good survey. Instead, take them as a provocation: are we – particularly authors and evaluators of open licenses – part of the problem of the permission culture? Are we actually responding to the people who use our licenses, if one of their desires is to push back against the need to license? Can we be more creative about expressing distaste for the permission culture, without gumming up the works of sharing too much? I think that, if we think critically, we can, and perhaps we should.
Monday, 14 January
04:00
Apologies to any planets/feeds I’m spamming with old tweet-junk right now; I’m trying to archive some tweets into WP and that may lead to some noise temporarily!
When someone new to open source does a web search for “open source licenses”, the first page that comes up is opensource.org/licenses – making it one of the most important resources for newcomers to open source.
Despite that, until today, all that a newbie would get when going to that page was two links: one to the list of approved licenses alphabetically, and another by category. This is obviously not ideal – it provides the newcomer with information useful only to an expert, so they lose; and OSI misses an opportunity to educate and inform, so we lose.
Because of this, in the middle of last year I sent an email to license-discuss proposing a revision to the page, and followed up several times in the second half of the year. Yesterday, I took the revision live.
 - Don’t do a nano without them by mpclemens, used under CC-BY 2.0.
Here is what the revision does, in a nutshell:
- gives context: what is an open source license? what does OSI-approved mean? These give a newcomer to the list a fighting chance of figuring out what the lists mean.
- provides a less-overwhelming list of licenses: using the “popular, widely used, or have strong communities” list created by the 2006 Proliferation Report, it gives people pointers to several useful licenses immediately, while still providing access to the full lists.
- works with OSI’s other resources: The new page links to OSI’s excellent FAQ and the annotated Open Source Definition, among other things. Again, these provide context, and help the page serve as a gateway for others.
- is progress: OSI can be, and often should be, a very change-averse organization. But it is nice to score a small win here and there- I hope this will be the first of many while I chair the license committee.
And what it doesn’t do:
- change the world: I’m blogging about this because it’s significant. But I also want to be clear that it is only a small win, and hopefully one that in 2-3 years OSI will look back on and have a good chuckle about.
- change, update or revise the license categories: The original license proliferation committee license categories, from 2006, have been useful to many people, and were instrumental in slowing the pace of license proliferation. So they make sense to use as the (relatively neutral) basis for the list that is now prominent on /licenses/. But they’re showing their age- notably by including CDDL in “popular/widely used” but in other ways as well (primarily, by not categorizing a variety of new licenses). OSI’s licensing committee (aka the license-discuss list, with input from others) will be gradually investigating how to address this over the course of the next year or so. This process has already started, somewhat, with my calls for quantitative criteria for license analysis. I intend to continue to push the list (including hopefully new members!) to think through the issue and its implications.
If you’re interested in helping out with future changes, please join the list.
I want to heartily unendorse Simon Phipps’ Infoworld article about Github and licensing. Simon’s article makes it sound like no one benefits from sloppy licensing practices, and that is simply not true. Specifically, lawyers benefit! I regularly get calls from clients saying “I have no idea if I’m allowed to use <project X>, because it is on github but doesn’t have a license.” When that happens, instead of money going to developers where it could actually build something productive, instead, I get to spend my time and the client’s money fixing a problem that the original author could have easily avoided by slapping an Apache license on the thing in the first place – or that github could have avoided by adding default terms.
So, support your local open source lawyer today – publish source code without a license!
Sunday, 23 December
13:00
After giving it some thought, I’ve decided to put the Blakely Blog to bed for good. I feel that other blogs and similar resources on the internet are doing an excellent job of keeping up with all of news and developments in this area of law and my efforts are largely duplicative. Furthermore, my schedule (which includes assisting in a soon to commence criminal trial in the SDNY) has not permitted me to spend much time working on the blog since the Booker decision.
It’s been fun, though. When I started this little endeavor I never imagined that this blog would get the attention it received. I know that the Blakely Blog was a productive endeavor from the scores of emails I received from people whose friends and family members relied on this blog, as well as others, to help sort out a complicated issue that affected them very personally.
I’d like to thank all of the people that took the time to write to me and send me opinions and news from around the country. I’d also like to thank Laurie Cohen from the Wall Street Journal who interviewed me about the Blakely Blog this summer and even mentioned me by name in the Journal.
Although I won’t be blogging any longer, I plan on submitting at least one piece of writing on the Booker case sometime this year to a legal journal. You can keep an eye out for that in the near future.
Again, thanks for reading and I wish you all the best.
Sincerely,
Jason Hernandez
jph2026@columbia.edu
The second panel’s topic was: Considerations at Sentencing – What Factors are Relevant and Who Should Decide?
The moderator was Judge John Martin, Debevoise & Plimpton.
The panelists were:
Kyron Huigens, Professor, Benjamin N. Cardozo School of Law
Kevin R. Reitz, Professor, University of Colorado School of Law
Paul H. Robinson, Professor, University of Pennsylvania Law School
Barbara Tombs, Executive Director, Minnesota Sentencing Guidelines Commission
This is by no means a complete or official report on the symposium; the Columbia Law Review will have an official report soon. All errors are my own.
Paul Robinson
Prof. Robinson began his presentation by suggesting that the question posed to the panel is misleading because it makes the assumption that there is one decision maker. In fact, there are several and they make a number of decision on several topics, such as:
Policymaking – setting goals, purposes
Rule articulation – turning general policy into articulable rules
Fact finding
Judgment making – expressing normative judgments
Determining punishment amount
Determining punishment method
Prof. Robinson used a chart (which I will post here when I get my hand on it tomorrow) that illustrates the kinds of decisions made by different decision makers (legislatures, judges, sentencing commissions, parole boards, juries, etc.)
In his opinion, the SRA got it right, but the Commission got it wrong.
Kyron Huigens
Prof. Huigens began by professing a preference for discretionary sentencing. He spent a great deal of time exploring the tension between Williams v. NY and the Court’s most recent 6th Amendment jurisprudence. That tension – known as the Blakely paradox to some (or possibly just me) – is that a judges can do what Blakely proscribes only as long as the legislature has refrained from establishing a statutory structure to guide sentencing. It seems inconsistent that judicial fact-finding is acceptable in indeterminate systems where defendant’s have little to no recourse to appeal a sentence, but impermissible when the legislature creates guidelines. He promised to explore this topic in an article he is working on.
Kevin R. Reitz
Prof. Reitz said that the states that have done the best job are the ones that have put in presumptive guidelines. That list includes Minnesota, Washington, Oregon, Kansas, North Carolina and Ohio. (There may have been others that I missed.) The best ones, he said, remove the prison release discretion from parole boards.
The states that have indeterminate systems are driving the prison population explosion.
Prof. Reitz discussed some of the problems he has with Booker and Blakely. The effect of Booker when lined up in the context of other Supreme Court decisions that have created loopholes to the Sixth Amendment is what he called “Constitutional Swiss cheese.” And there may be more holes than cheese.
The holes are all of the exceptions to the Booker rule, which are:
Williams; Booker II
Harris; McMillan
Patterson
He summarized the lay of the land as follows. The following systems have no Blakley problems: voluntary guidelines, indeterminate sentencing, mandatory minimum guidelines and mandatory minimum statutes. The following systems have Blakely problems: presumptive guidelines, presumptive statutes, mandatory guidelines.
The jurisdictions with Blakely problems have two options – Blakelyization or avoidance (change the system entirely).
Barabara Tombs
Barabara Tombs began by explaining that Minnesota’s guidelines are driven by retribution as a penal philosophy. “That’s why we put people in prison.” (Or something close to that). She said that the Commission’s work is guided by their chosen penal philosophy. It helps the Commission to focus on what our guidelines can and cannot do.
She felt that Blakely and Booker will hurt the younger sentencing commissions more than the older ones.
She discussed some statistics from Minnesota which were of interest. In Minnesota they have a 2% upward departure rate for sex offenses and murder. There are a lot of downward departures in drug cases (60% in some cases). Curiously, Minnesota has mandatory minimum drug sentences but judges can depart downward from the mandatory minimum. (I’m not sure how that works).
Finally, she (sensibly, in my view) observed that Blakely was all about jury sentencing and after the first few pages of Booker, it seems to have disappeared. Where did it go?
Judge Martin
In wrapping up the panel, Judge Martin said that he was disturbed by how much deference is being paid to reducing sentencing disparities. He feels like we have elevated that goal to too high a position.
He said that he likes the new system over the old, because it leaves guidelines and appellate review. Hopefully Congress won’t jump in too quickly, he added.
The first panel addressed the topic of prosecutorial discretion and its changes. The moderator was CLS Professor Paul Shechtman.
The panelists were:
Martha Coakley, District Attorney, Middlesex County, MA
Michele Hirshman, First Deputy A.G., New York State
Nancy King, Professor, Vanderbilt University School of Law
Ronald F. Wright, Professor, Wake Forest University School of Law
What follows are some highlights from the panel discussion. This is by no means a complete or official report on the symposium; the Columbia Law Review will have an official report soon. All errors are my own.
This panel will explore whether prosecutorial discretion holds the keys to state sentencing, as many say does in the federal system.
Ron Wright
Prof. Wright began his comments by discussing the regulatory imbalance in sentencing. Analogizing the imbalance to other more traditional areas of regulation, he suggests that we can learn from the regulatory imbalances in sentencing.
On the topic of prosecutorial guidelines, Prof. Wright noted that some states like Kansas (and Minnesota) considered establishing prosecutorial guidelines, but in the end abandoned the effort. At least one state – Washington – has experimented with the idea of prosecutorial guidelines. These are internal guidelines, however.
Prof. Wright spent a fair amount of time talking about New Jersey, a state he described as not the hot bed of sentencing reform.
Nancy King
Whereas Prof. Wright’s focus was on macro-sentencing issues, Prof. King focused on the micro picture.
She noted that a great deal of the sentencing disparity debate has focused on racial disparities and disparity among sentencing judges. Missing from the analysis is a study of the mode of conviction. For example, sentences will vary depending on whether the defendant chose a bench trial instead of a jury trial, or went to trial at all. This is what some have called the guideline’s dirty little secret.
Prof. King is in the midst of studying data from 5 states (Pennsylvania, Maryland, Minnesota, Kansas and Washington) to study the disparities that arise based on different modes of conviction. This is a work in progress but she shared some of her preliminary results.
In Maryland and Pennsylvania she found that when the defendant chooses a jury trial, they are much more likely to be incarcerated.
(Except for cocaine offenses in Pennsylvania where bench trials are more likely to result in incarceration, but incarceration rates are lower in bench trials for simple possession).
In Washington, whether the defendant pled guilty, chose a bench trial or a jury trial, the rate of incarceration did not vary in a statistically significant manner.
In Minnesota she examined 3 offenses and found that in 5th degree drug cases, a bench trial meant the defendant was less likely to go to jail.
Prof. King also observed that in mandatory guideline states the bargain is over the charge, not the sentence, because there is no room to bargain about the sentence. Some have suggested that there needs to be a year between the top and bottom of the guideline for there to be meaningful sentence bargaining.
Michele Hirshman
Michele Hirshman has been working for the NY Attorney General’s office for the last 6 years. She immediately observed that it is important to get prosecutors to see themselves as seeking justice, not convictions.
In NY, the discretion of prosecutors is very limited. Grand jury proceeding place major restrictions on what a prosecutor can do, making it difficult to build a case. The prosecutor has to present a very big part of their case to the grand jury. Elaborate evidentiary rules that constrain how they can prove a case.
She discussed the significance of electing judges and prosecutors, arguing that this democratic check is the best way to constrain prosecutors.
Martha Coakley
Martha Coakley began her presentation by asking whether we were asking the right questions? First, we thought the problem was sentencing. We addressed that. Then we thought the problem was prosecutors. But what about the role of the defense counsel?
She suggested that better funding and treating defense work as a highly respected profession is an important way to check prosecutors.
She observed that in Massachusetts they have Rule 25(b)(2) which allows judges to reduce a charge if it’s unfair. Judges have more discretion than prosecutors. This is an important check on the prosecutor.
Finally, she argued that all crimes are not created equal. In child abuse cases the ability to intervene early is of utmost importance. Someone who abuses kids needs a different sentence and rehabilitative program than a bank robber.
We spend too much money on putting people in jail and focusing on sentencing guidelines.
This post is coming to you live from Columbia Law School’s state sentencing symposium. The symposium was kicked off with some opening remarks by Judge and CLS Professor Gerard Lynch. What follows are some highlights of his opening remarks.
Judge Lynch began his comments by noting the impeccable timing of the symposium. The timing, however, was fortuitous – the symposium was not planned as a response to Blakely or Booker. The original purpose of this symposium was to steer the sentencing conversation away from Congress and the Sentencing Commission, and towards the courts.
Sentencing is still a topic that is not given a lot of attention in criminal courses. Legal and academic writing tends to focus of Congress, although federal sentencing only composes 7% of the incarcerated public. This is especially significant given that the focus of federal law (white collar crime, immigration and drug crimes) is distinct from the traditional street crimes that most people are concerned about.
Although there is no clear pattern or trajectory in sentencing law, the states have been the true innovators in sentencing.
The symposium starts tomorrow at 1:30pm with Judge Lynch's opening remarks. The event is open to the public and free of charge.
For more details go here.
I'll be in attendance and blogging from the symposium.
Law.com has an interesting backstory to Justice Breyer's ethical quandary regarding the Booker case. Can one of the guidelines' architects decide their fate? Apparently, it not only matters what you ask, but who you ask. As you may recall, the bloggers spotted this issue well before the press. In this post from August, I discussed Justice Breyer's possible recusal, with a little help from the blogging community.
The Monitor has a good article discussing Booker's impact on different types of crimes. The article argues that Booker will affect white collar crime and drug crimes more than any other class of crimes, whereas more "serious" crimes will not be disturbed.
Tulsa World has an interesting article that is a few days old entitled, "Judge sticking with sentencing guidelines." Unfortunately, you have to be a subscriber to access the article. But, I did manage to find this little blurb:
U.S. Chief District Judge Sven Erik Holmes is a believer in guideline sentencing, and he intends to keep using the existing federal guidelines even though the U.S. Supreme Court said Wednesday that they are no longer mandatory.
Chief Judge Holmes issued a Blakely Blockbuster opinion in August in US v. O'Daniel. In that decision, he laid out a 4 point plan for bringing the guidelines into compliance with Blakely.
Interesting, It's-A-Small-World News: Alexandra Shapiro, the primary author of the New York Council of Defense Lawyers amicus brief, and a partner at Latham & Watkins NY, is co-teaching a Seminar in Federal Criminal Practice at Columbia Law School this semester. The course, which I am enrolled in, is also taught by Jonathan Bach, a partner at Kronish Lieb Weiner & Hellman LLP.
Sentencing is, of course, a big part of the seminar due to Blakely and Booker.
I have some coherent commentary planned for tomorrow. Until then, here are a few more news stories of note.
“Supreme Court generates more sentencing turmoil,” from The Columbian:
Stephen Kanter, a professor at Lewis & Clark's Northwestern School of Law, said many sentences may be reconfirmed, with judges saying they would have given the same sentence even if they hadn't been bound by guidelines.
“U.S. Sentencing Guidelines Made Advisory by Court,” from Bloomberg:
``It probably will create additional leverage for defense counsel in negotiating agreements,'' said B. Todd Jones, a former U.S. attorney in Minnesota. ``They know they have two bites at the apple now'' -- with prosecutors and judges.
Here is a collection of recent news stories on yesterday's opinions by the Court. Where relevant, I've excerpted interesting parts from the stories.
"High court loosens criminal sentencing guidelines," from the Seattle Times:
Gregory Poe, a Washington, D.C., attorney and former federal defender, said, "Congress is likely to make changes. And there is great concern that Congress may have an appetite to create a system applying strict penalties regardless of the merits in individual cases."
...
Frank Bowman, a professor at the Indiana University School of Law and a leading expert on the guidelines, said, "There is one thing that appears to be clear: The court has, by either judicial fiat or an act of statutory interpretation, created a system of advisory guidelines which, I think you can at least argue, give federal trial judges the greatest sentencing power they've ever had."
Assistant Attorney General Christopher Wray said the Justice Department was "disappointed" that the court had made the guidelines advisory in nature, but emphasized that the opinion makes clear that trial judges still are required to consult the guidelines in making sentencing decisions.
"Area well poised in wake of Supreme Court sentencing decision," from the Waco Tribune:
Federal inmates at the McLennan County Detention Center in downtown Waco raised the roof for joy Wednesday morning after learning on television news that the U.S. Supreme Court had upended federal sentencing guidelines.
Most inmates there have yet to be sentenced and are waiting to go to court, said Thomas Medart, chief of security at the privately run facility.
"They're happy," he said. "It's postponed some of the sentencing that would have happened, but it's not creating any problems for us."
...
U.S. District Judge Walter S. Smith Jr., who presides over Waco's federal court and is chief judge for the Western District of Texas, said he wasn't surprised by the ruling. After all, Smith issued a ruling of his own in July saying the sentencing guidelines were not constitutional and violated defendants' Sixth Amendment right to a jury trial.
Smith said he was pleased with the decision because it will give federal judges more discretion in sentencing. He said
...
Whatever the fallout, Smith said he doesn't believe Wednesday's ruling will be the last word on the subject, an observation echoed on the Supreme Court. Congress will likely set higher mandatory minimums for many crimes, again taking away judges' discretion, he said.
Johnny Sutton, U.S. attorney for the Western District of Texas, said he needs more time to digest the high court's ruling. But it doesn't appear "the sky is falling," he said.
"Sentencing guidelines tossed out," from The Pittsburgh Post-Gazette:
Calling yesterday's decision a "mess," Ohio State University law professor Douglas Berman said: "This is going to be applied in diverse and dramatically different ways in the lower courts."
For students of the Supreme Court's internal politics, the split decision yesterday reflected the influence of Breyer, who worked on sentencing reform as the Senate Judiciary Committee's chief counsel in 1979 and 1980 and served on the Sentencing Commission from 1985 to 1989. "This is Breyer's revenge," said Berman. "He loves the world he created and wants to hold onto it any way he can."
...
Sen. Arlen Specter, R-Pa., who as the Judiciary Committee chairman would preside over any rewriting of sentencing law, reacted cautiously to yesterday's ruling. "I intend to thoroughly review the Supreme Court's decision and work to establish a sentencing method that will be appropriately tough on career criminals, fair and consistent with constitutional requirements," he said.
"Judges Freed From Sentencing Rules," from the LA Times:
By basically preserving the current system, the ruling is not likely to have a broad effect on criminals serving federal terms or those awaiting sentence. It is unclear what effect it will have on future sentencing.
"There are going to be a lot of disappointed criminals in federal prison today," said Kent Scheidegger of the Criminal Justice Legal Foundation, an organization in Sacramento that supports the rights of crime victims.
Some other stories include: "Sentencing ruling may aid Cianci's early release," from the Providence Journal; "Justices weaken sentencing rules," from the Philadelphia Inquirer;"Federal sentencing system to get overhaul," from the Knoxville News Sentinel.
I’ve put together some of my initial reactions to today’s decision in Booker and Fanfan. The decision is a whopping 124 pages and there’s a lot to discuss, of course. These are just preliminary thoughts that I hope to refine and pick-up in the next several months.
The first opinion, written by Stevens, addresses the first question: does Blakely apply to the guidelines? The answer is yes. Although there is plenty to talk about here, the real action is in the second opinion, authored by Breyer.
Two meta-observations. First, the tone of both opinions is rather matter-of-fact when compared to Blakely. Of course, Scalia is not exactly the kumbaya type, but I get the feeling that the bitter fight over the guidelines was waged in Blakely, not in Booker and Fanfan. Second, the Booker and Fanfan opinions don’t cite to academic commentary, whereas Blakely cited to academics on the issue of prosecutorial discretion and pleas. In the remedy opinion, the Court makes several assertions regarding alternative remedies that could have been more fully explored if they had cited to scholarly work.
Now, I’ll turn to a few topics that stuck out to me.
Elements, Statutory Construction and the 6th Amendment
The Court’s first citation is to In re Winship. To my surprise, the Court then discusses Jones at length. Jones was a statutory construction case where the Court was called upon to decide whether Congress intended to create 3 separate car jacking offenses, or whether the statute identified sentencing factors. Although Jones (and Castillo and Almendarez-Torres) are relevant, they do not pose 6th Amendment questions. These cases presume the answer to the question before the Court. We know that the government must prove all elements of an offense to a jury beyond a reasonable doubt. It’s unclear how this line of cases helps us understand how we should treat a leadership enhancement (which is not an element of any offense) in light of the 6th Amendment.
But here’s the tougher question: is drug quantity an element of the offense after Booker and Fanfan? The opinion suggests that they are not, but that they may have to be treated as elements. Judge Easterbrook’s dissent in Booker said that the majority’s conception of drug quantity under Blakely was nothing more than Apprendi. Ok. Where do we stand now?
(I recognize that my thoughts on this are inchoate, but it’s late and I’m still just thinking out loud.)
What’s good law now?
The majority opinion authored by Stevens was forced to confront the viability of several cases now that Blakely applies to the guidelines. Here’s a quick run-down of what the Court said: Dunnigan survives. Witte and Watts are inapposite because they did not present 6th Amendment questions. Edwards and Mistretta are not inconsistent with the Booker ruling.
I find it hard to believe that none of these cases were overruled, or at least recognized as being in tension with the ruling. One gets the feeling that Stevens is distinguishing these cases on very narrow grounds that may not survive closer scrutiny.
Retroactivity, Prior Convictions and Mandatory Minimums
Unfortunately, the Court didn’t say much (if anything) about retroactivity, prior convictions (Almendarez-Torres) or mandatory minimums, and fact finding that leads to the imposition of mandatory minimum sentences (Harris).
This isn’t surprising, I guess, given that the cases didn’t present any of these issues. My guess would be that the Court will now grant cert on a case to handle the retroactivity question, which is the most pressing of these three topics. The Court’s adherence and praise of the Apprendi/Ring line of cases suggests that Booker and Fanfan won’t be retroactive.
What Would Congress Do? (WWCD?)
Debates will surely rage over the majority’s take on what Congress would have preferred if faced with the limitations imposed by Booker and Fanfan.
I’ll just make a brief point here and return to the topic at a later date. The Court appears to interchangeably apply two standards here: what would Congress have intended and what will make the smallest fuss. The second standard appears to play a prominent role and I’m not convinced that that’s the right standard. I am also a bit skeptical of the Court’s zealous protection of judicial factfinding. Of course “court” meant “judge” in 1987. All we knew was judicial fact finding. I’m not convinced that this legislative preference should trump the newly invigorated 6th Amendment. Instead, we’ve been given a “soft” 6th Amendment jury trial right. This portion of the remedy opinion seems out of sync (“old school,” if you will) with the new, hip, “not your found fathers” 6th Amendment that Stevens “updates” for us.
Advisory Guidelines, Relevant Conduct and Uniformity
In the second opinion, the Court justifies its choice of advisory guidelines over a jury fact-finding regime, in part, on the need to ensure uniformity by adherence to the offender’s real conduct, as expressed by relevant conduct. The argument here is that if judges can’t take relevant conduct into consideration, there will be an unbearable sentencing disparity that the SRA was supposed to eradicate.
This argument, in my view, relies on some questionable assumptions about the ability of a jury fact-finding regime to properly “account” for relevant conduct. But even assuming that jury fact-finding could not account for relevant conduct, I’m not sure that the sentencing disparity that the majority is talking about here is the kind of disparity that gave birth to the guidelines. Base level offenses would remain unaffected by a jury fact finding system. The defendant would have to answer for any discoverable relevant conduct that makes it into the indictment. Just how much of a disparity are we facing here?
Not to mention that there are competing sentencing goals that are recognized by the SRA that would counsel against rigid adherence to a real offense system. The Court’s discussion of relevant conduct cast in light of uniformity concerns glosses over the fundamental incompatibility of Blakely and relevant conduct, in my view.
Here's some old news - the Supreme Court ruled today that Blakely applies to the guidelines. The remedy appears to be making the guidelines advisory, subject to appeal based on a "reasonableness" standard.
I just got my first look at the opinion(s), which you can access here. I reserve the right to correct my characterization if I made a mistake.
More to follow later tonight...
Well, in 5 hours I'll be on a plane to Ft. Lauderdale. The Supreme Court will announce any new decisions tomorrow at 10 am. So my prediction, based solely on my travel schedule, is that Booker and Fanfan will be decided tomorrow, as my plane takes off.
Details to follow, if I'm right, after I land in FLL.
Still no decision. The next possible day for a decision is tomorrow. That and you might even get that pony you wanted for your birthday.
I've just been made aware of some exciting additions to the upcoming Columbia Law Review symposium on state sentencing entitled, Sentencing: What's at Stake for the States?
The symposium will be held on the campus of Columbia Law School this January 21 and 22. And we might even have a Booker and Fanfan decision by then! Imagine that.
I've pasted the text of a recent press release announcing the event and some recent additions.
Judge William Pryor Headlines Symposium on State Sentencing Guidelines
Eleventh Circuit Judge William H. Pryor, Jr. Highlights List of Judges, Academics, and Practitioners Coming to New York to Debate the Merits of Various Sentencing Regimes
New York, NY --- The Columbia Law Review announced Thursday that it will be hosting a symposium entitled Sentencing: What's at Stake for the States? this January 21 and 22 on the campus of Columbia Law School in New York City. The symposium, centered primarily on state criminal sentencing regimes, will feature more than twenty of the most interesting and thoughtful voices in sentencing scholarship and practice.
The Supreme Court's decision last term in Blakely v. Washington will very likely lead a number of states to revise their sentencing guidelines, even if only to quell uncertainty as to the case's applicability. This symposium seeks to contribute to these endeavors by providing a forum for candid and lively discussions of the practical and theoretical implications of various sentencing systems and reforms. To that end, it will address a broad range of topics, including the institutional concerns inherent in guideline systems and the competing or complimentary policies underlying different sentencing frameworks.
The keynote address will be delivered by Judge William H. Pryor, Jr., of the Eleventh Circuit Court of Appeals. Throughout his career, Judge Pryor has been an outspoken advocate of sentencing reform. As Attorney General of Alabama, he led the creation of that state's Sentencing Commission, which he saw as a means to achieve "truth in sentencing," eliminate unjust disparities, and relieve a serious prison overcrowding problem and budgetary crisis. He also has championed the use of alternatives to incarceration for first-time nonviolent offenders, such as work and restitution penalties, and counseling for drug offenders.
In addition to Judge Pryor, the symposium will feature professors Rachel Barkow (NYU), Frank Bowman (Indiana), Antony Duff (Stirling), Richard Frase (Minnesota), Kyron Huigens (Cardozo), Nancy King (Vanderbilt), James Liebman (Columbia), Marc Miller (Emory), Kevin Reitz(Colorado), Paul Robinson (Penn), Kate Stith (Yale), Paul Shechtman (Columbia), Michael Tonry(Cambridge), Ron Wright (Wake Forest), and Franklin Zimring (Boalt Hall); Middlesex County(MA) D.A. Martha Coakley; Michele Hirshman of the N.Y. Attorney General's Office; Roxanne Lieb of the Washington State Institute for Public Policy; Barbara Tombs of the MN Sentencing Guidelines Commission; and Judges Gerard Lynch and John Martin, Jr. (retired).
The symposium will begin midday Friday, January 21, highlighted by Judge Pryor's address at 5:30 p.m., and end Saturday, January 22. It will be open to the public and free of charge. For a complete listing of the participants, panel topics, and event times, please visit http://www.columbialawreview.org/symposium/.
At least that appears to be the case, based on reports from the SCOTUS blog. This means we have to wait until the new year for a decision. Jan. 11th is the next possible date for an opinion. Wow.
No Booker/Fanfan decision today. Next possible opinion date: Dec. 13th.
The next likely dates for an opinion are December 7, 8 and 13th.
I've just received word that the Columbia Law Review has posted an online announcement of an upcoming sentencing symposium which will focus on state sentencing. The symposium will take place at Columbia Law School on January 21st and 22nd.
The symposium will feature some fantastic panels. Here's what the web site is reporting:
Panel 1: Prosecutorial Discretion and Its Challenges
Michele Hirshman, First Deputy A.G., New York State
Nancy King, Professor, Vanderbilt University School of Law
Ron Wright, Professor, Wake Forest University School of Law
Panel 2: Considerations at Sentencing – What Factors are Relevant and Who Should Decide?
Kyron Huigens, Professor, Benjamin N. Cardozo School of Law
Kevin Reitz, Professor, University of Colorado School of Law
Paul Robinson, Professor, University of Pennsylvania Law School
Panel 3: Theories & Policies Underlying Guideline Systems
Antony Duff, Professor, University of Stirling
Richard Frase, Professor, University of Minnesota Law School
Roxanne Lieb, Director, Washington State Institute for Public Policy
Michael Tonry, Professor, University of Minnesota Law School
Panel 4: The Institutional Concerns Inherent in Sentencing Regimes
Rachel Barkow, Assistant Professor, New York University School of Law
Frank Bowman, Professor, Indiana University School of Law
Marc Miller, Professor, Emory School of Law
Frank Zimring, Professor, University of California at Berkeley School of Law
For more information, check out the CLR web site dedicated to the symposium here.
This post makes official what is obvious to readers of this blog - I am on a Blakely break of sorts until the Court decides Booker and Fanfan. The demands of Federal Courts, Mass Torts, Trial Practice and Tort Reform Research require my attention while the Supremes trade drafts back and forth.
But once they decide, I'll be back to my old form, blogging virtually 24/7. I've been doing a lot of sentencing reading the last month and I hope that this will help to make my post-Blakely commentary all the more insightful.
Hey, just think. I might be back on the horse on Monday. It could happen.
Unfortunately, I've been away from the blog for quite some time. My mind has been at ease, however, because I know you are all in good hands as long as Sentencing Law and Policy is out there. Let's face it, in the world of Blakely blogs, Sentencing Law and Policy is the New York Times of blogs, whereas the Blakely Blog has more of a New York Post feel. That's ok, I like it that way.
One of the things that has kept me busy is a pro bono project that I have started as part of Columbia's pro bono program. What am I working on? A Blakely project, of course. I get many emails and letters from prisoners and their family members asking for my help on various Blakely appeals. Unfortunately, I have to turn all of those requests down because I'm not an attorney. Right now, I'm just a guy with a lot of debt and a blog. I've taken-on this pro bono project, which is supervised by a real live attorney, as a way to give back to the community.
Here's what I'm working on, and if anyone out there can offer some help, I'd be very appreciative (especially from jurisdictions outside of NY). This case only concerns New York state law, there are no federal charges. The client was indicted for and found guilty of, among other things, manslaughter in the first degree (NY Penal Law § 125.20 (1)) and criminal possession of a weapon in the second degree (NY Penal Law § 265.03). The indictment did not allege against whom the defendant intended to use the weapon for purposes of the possession charge, which is a distinct crime from manslaughter and relevant for purposes of sentencing. The judge, however, sentenced the defendant for manslaughter and criminal possession of a weapon.
Here's where the specifics of New York state law come in.
The judge imposed consecutive sentences on the defendant despite N.Y. Penal Law § 70.25(2) which states:
When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences, except if one or more of such sentences is for a violation of section 270.20 of this chapter, must run concurrently. This relevant because if the indictment alleged that the defendant intened to use the weapon which he criminally possessed against the same person who he was charged with manslaughter, § 70.25(2) would likely bar a consecutive sentence.
The question here appears to be: could the judge independently find that that the defendant possessed the weapon with the intent of using against someone not in the indictment for the purposes of sentencing him to a consecutive sentence? Prior to the Blakely ruling, the state argued that the sentence did not go beyond the statutory maximum. That Apprendi-based understanding of the law is clearly undercut by Blakely, but the Blakely issue here is not as clear cut as it is in a number of cases. Was the indictment not sufficient enough to comply with Blakely?
Assuming that Blakely doesn't apply, there is an argument that criminal possession of a weapon is an offense that should be sentenced concurrently with manslaughter under § 70.25(2). My question here is, does the Blakely ruling's like obliteration (maybe "obliterate" is a strong word) of the sentencing factor/element distinction undermine NY precedent which states that possession of a weapon distinct for § 70.25(2) purposes from manslaughter?
I know that there have been challenges in California to the state's consecutive sentences law. Those cases may be inapposite because the defendant in this case is not challenging the constitutionality of § 70.25(2). He is only challenging the judicial finding of fact not included in the indictment. On the other hand, I would still like to hear from anyone who has any thoughts or experience in mounting challenges to consecutive sentencing statutes from all jurisdictions, including California.
I would appreciate it if any one out there was willing to discuss the concurrent/consecutive sentencing aspect of this case, or offer any other suggestions for research outside of New York.
Update: I've added some detail and taken some things out of this post since I first put it up.
On Wednesday, October 20 (9:00 a.m. PST) and Friday, October 22 (12:00 Noon PST), AFDA will conduct an online seminar entitled, "Restitution Proceedings In Federal Sentencing."
The program will run approximately 45 minutes to one hour. It will be held in the ONLINE SEMINARS section of the AFDA web site, which operates like a chat room but with moderator controls. The presentation format will be audio accompanied by the sequential placement of slides in the chat room screen, similar to a powerpoint presentation.
The program will present a five-step analysis in handling restitution determinations. As courts have recognized that restitution is a statutory obligation and thus not based specifically on the sentencing guidelines, this topic remains relevant in our handling of fraud / theft during this remarkable period of uncertainty surrounding the guidelines, as we await the Supreme Court's ruling in Booker / Fanfan.
For more details, please visit the AFDA web site.
You can access a transcript of the oral argument here.
After spending over an hour on the A train on my way to JFK and five and a half hours in the middle seat of row 32 aboard Delta flight 462, I’ve finally made to the beautiful campus of Stanford Law School. I’m anxiously awaiting the start of what promises to be two great days of discussion and learning. Although this blog represents the bulk of my thinking on Blakely, I hope that as a result of the Stanford conference, I will be able to produce a more serious and scholarly look at Blakely for publication in a law journal. In particular, I am very interested in exploring the historical role of the jury and the Blakely majority’s use of history to justify the majority opinion.
All of that will have to wait a little longer. The conference does not start until the afternoon, so I’m taking some time this morning to offer some of my thoughts on Monday’s argument in Booker and Fanfan.
My Prediction for Question One
As Tom Goldstein, the consummate Court insider, has reported, the word is that the Blakely majority will hold (see this post, and the surrounding posts as well). Based solely on my observation of the argument, I think that the Court will split 6-3 with respect to Question One, with Justice Kennedy joining the Blakely majority. As you may recall, I set the line at 1.5 Justices for the Booker/Fanfan argument, so I guess I think that the respondents will “cover.” (Remember, this is for novelty purposes only.).
Here’s why I think the break-down will be 6-3. First, I’m assuming that the Blakely majority will hold. There were some reports that Justice Ginsburg might defect from the Blakely majority but based on her questions on Monday, I don’t think she’s likely to defect. Plus, others are reporting that she’s sticking with the majority. I guess I just think that’s right.
Second, I can’t see O’Connor or Breyer, after their dissents in Blakely, making a 180 degree turn. These two Justices were the most active questioners of the respondents (especially Breyer), and I don’t think they will change their position. They put too much into being the voice of the dissent in Blakely, in my opinion. The Chief is hard to peg, but my guess is that he will join Breyer and O’Connor in dissent.
Finally, that leaves Justice Kennedy. Remember, Kennedy is no fan of the guidelines. In fact, he dislikes the guidelines so much that he has a report which bears his name that attacks the guidelines. Despite those feelings, he dissented in Blakely, but the handwriting is on the wall with respect to Booker and Fanfan. Why not join the majority? In my notes, I have Justice Kennedy asking only two questions to Acting SG Paul Clement, both on the topic of what constitutes a “Blakely fact.” He asked the SG if there were any facts which could still be found by the judge under Blakely. He used determining the defendant’s remorse as an example. Doug Berman has picked up on this line of questioning, suggesting that the Court start working through a distinction between “offense facts” and “offender facts.” Although I don’t think that Justice Kennedy will be able to convince the majority to endorse his bright-line, I take his questions to those of a Justice considering joining the majority. Furthermore, I think the respondents may have convinced Justice Kennedy that the "collaborative process" or "dialogue" between the branches which he extols in his dissent may have died in recent years.
I know this amounts to nothing more than a hunch, but I’ll stick to it. (By the way, if you haven’t read the Vanity Fair piece about Bush v. Gore, where former clerks on the Court at that time spill some of the beans, you should certainly get a copy. But be warned, there are some harsh words about Justice Kennedy in there and a choice quote from Scalia reminiscing about his days in Brooklyn.).
On the other hand, Justice Kennedy did ask the respondents what can be viewed as some hostile questions. He pressed them on why a standardless discretionary system is preferable to the guidelines; he asked what policy or principle dictated the respondent’s conclusions; and he asked some pragmatic questions regarding factfinding by correctional authorities, as opposed to judges. In a way, these questions are not hostile if Justice Kennedy’s fears of a standardless sentencing regime are allayed by the Court’s answer to question two. If the Court endorses an advisory guideline system, with meaningful appellate review, I think Justice Kennedy’s fears are put to rest and he joins the majority.
Assuming my prediction is right, I wonder if lower courts will be left to pickup where Justice Kennedy left off in the oral argument. Perhaps they will be the ones to propose the line, if there is one at all. As I mentioned at the beginning of this intolerably long post, I’d be interested to see how Justice Kennedy’s line fits with the judge’s and the jury’s historic role.
Question Two – Who the heck knows?
Trying to figure out what the Court will say with respect to question two is likely an exercise in futility. There are simply too many possibilities and permutations which make predicting how 5 members of the Court will vote very difficult. I do, however, think that based on the questions asked by Justice Breyer and O’Connor, which I think focused more on the remedy than the first question (the transcript will prove me right or wrong on that), that these two Justices will try very hard to agree on an answer to the severance question. My inclination here is that Breyer and O’Connor are thinking, “Well, the guidelines are going down and there’s nothing we can do about it. We might as well do what we can to help forge a consensus with respect to the second question. After all, or dissents in Blakely were so pragmatic, we might as well be pragmatic here and do what we can to limit the chaos.”
I could do a little more speculating on question two, but instead I’d like to raise a point which has been haunting me since the oral argument. At one point during the argument, one of the Justices quipped that their opinion on the second question will have limited relevance because Congress will inevitably, and likely quickly, act to repair the guidelines after the case is decided. There are reports circulating that Congress is contemplating a slue of mandatory minimum sentences should the Court invalidate the guidelines. Should that come to pass, I can’t envision who the winners would be.
I've been offline for a few days, but I will soon return to the blog. I've been busy arguing before the Senate, the Columbia Law School Senate, that is; researching for a professor (non-sentencing related); and reading for class (not so much on the last one).
I'm about 2 minutes, I'll be on my way to JFK where my ultimate destination will be Stanford Law School and the upcoming Sentencing Conference.
More blogging to come...
First, let me say that I apologize for the errors in the posts by Dave Ziff (which have been corrected). Those errors are my own, not Dave’s and are attributable to my hurried attempt to get news out on the blog. In particular, I offer my apologies to Chris, who is a fellow blogger at TalkLeft and a supporter of this blog.
I’d also like to thank Dave Ziff for taking the time to transcribe my ramblings into something coherent for readers of the blog. Thanks Dave!
Dave’s posts offer a rather broad sketch of the argument. Most of the major threads of discussion and questioning are covered by Dave’s posts, but there are many fine points which were not captured. I hope to raise those finer points over the next few days.
A few other blogs are covering the Blakely argument, notably Doug Berman on Sentencing Law and Policy (who I met in person for the first time, despite our many email exchanges), Tom Goldstein covers the argument with some insider information at the SCOTUS blog and Howard Bashman has coverage of the argument on How Appealing.
Prof. Berman’s first post offers some thoughts on the SG’s arguments on Blakely’s applicability.
Prof. Berman has rounded up the media coverage on his site, too.
I’m going to reserve further commentary until tomorrow (which is now today). What a day! Stay tuned.
Friday, 17 September
13:00
Is Charles Krauthammer Truly Or Only Pretending to Be Thick As Two Short Planks? He concludes a rant against the White House's feud with Fox News (which is foolish of the Obama Administration, undeniably) with this: Defend Fox from the likes of Anita Dunn? She's been attacked for extolling Mao's political philosophy in a speech at a high school graduation. But the critics miss the surpassing
Medal of Honor to James Earl Ray While any transcript produced by Rush Limbaugh himself is suspect, I do think Jack Huberman may have been in error in his claim that Limbaugh at one point said, "You know who deserves a posthumous Medal of Honor? James Earl Ray. We miss you, James. Godspeed."The only person I can find who actually has said that James Earl Ray deserved the Congressional Medal of
Slate Shake Although I find the demands for bridal virginity as appalling as Timothy Noah does, he's nonetheless being willfully stupid about why artificial hymens are considered a threat to conservative Muslim values. Pause for a moment to consider what these men are asking God to protect them from: a cheap, mass-produced insert that releases fake blood. It's the technical equivalent of a
Amazon Oops Evidently there was some confusion about which "Sarah Palin in a partly-unzipped fleece against a blue sky with fleecy clouds" picture to use for the book cover.The one Harper-Collins picked is much more flattering, though it omits Palin's signature can-do up-do in favor of the softer style preferred by the GOP image consultants.
Resolution: No More Betting I picked up a bad habit from my husband, which is to challenge people who are convinced they are right about something that is empirically provable (either now or in the future) to a bet. The habit is a bad one for many reasons, and on a practical level it hasn't always worked out even for my husband, as he's soon due to pay up on a bet he made with one of my friends
You Pick Them Cherries, Girl A summer intern at the Wall Street Journal produced a fawning interview with Gov. Rick "Goodhair" Perry about how totally awesome Texas is, especially compared to California. It's all about as silly as you would expect from the above description, with some extra win in Gov. Perry's admiration for the elderly's opposition to government insurance, because "They like
Countless Screaming Argonauts Christopher Beam trots out the standard "it's economically irrational to vote" argument on behalf of Meg Whitman, who currently seeks to be the Republican candidate for California's next gubernatorial election despite not having registered to vote until 2002. She's apparently been eligible since 1978, which makes the non-standard, Whitman-specific part of Beam's
Gateway =/= Tunnel While Steve Chapman is right to call out the government on its sloppy use of statistics with regard to teen smoking, I don't think he makes a definitive case against the FDA's ban on non-menthol flavors in cigarettes. The question is not what teen smokers are smoking once the habit is established, but rather what they smoked when they first began smoking. I'm among the
Is "Bill Wilson" a Name Associated with Jewish People? I am a little puzzled over the latest rightwing-generated dust-up, which is Americans for Limited Government's claim after ALG sent a mass e-mail under the name of its president, Bill Wilson, an NBC "Dateline" producer responded with "Bite Me, Jew Boy!"So far as I can tell from Googling, Mr. Wilson is not Jewish, and so the reply seems a
What do the House and Senate health care reform bills say about an individual mandate? The WSJ has been running arguments about why health care reform legislation is unconstitutional if it includes an "individual mandate," on the premise that there's no commerce here that Congress would be regulating, and therefore it goes beyond even the broad reading of the Commerce Clause ("The Congress shall
More Depressing Than the Birthers I'm glad I'm leaving the country for a few days, because the debate over the health care bill is really starting to get to me. I simultaneously can't seem to resist reading the news reports about all the stupid things people say and believe, that are blocking out the worthwhile questions about whether HR 3200 (the bill sponsored by Rep. Dingell that has passed
We All Lived Through the 1990s, Right? I'm sort of puzzled by Virginia Democrats' excitement over publicizing Republican gubernatorial candidate Robert F. McDonnell's graduate thesis (submitted in 1989 for a MPP and JD from Regent University). His blueprint for the coming decade was well on point, and indeed even prescient about some of the wackier fringes of the GOP into the 21st century.
I Do Not Think It Means Only What You Think It Means In an article about "Mexican hot dogs" -- distinguishable chiefly for wrapping the dog in bacon before cooking it -- NYT writer John T. Edge refers to this style being even more popular in Tucson than in the rest of the country: In a dozen or more cities across the United States, these Mexican takes on the American hot dog are ascendant — from
The Kind of Catholic You'd Expect a "New American Radical" To Be James Walcott links the Esquire profile of one Mike Austin, who until the article’s publication wrote the blog Return of Scipio. The profile holds Austin up as an example of "the New American Radical"; "he has called President Obama 'evil' and 'malignant,' and he believes, along with much of the hard-line wing of the Republican
God and High School Because I haven't made a blog post out of IMing in a while. A friend (who will go by "DC") posted this on my Facebook Wall with the note, "gosh help us all..."DC: I sent you a youtube video that made me shake my head. I only saw the first 30 secs when they try to tell their friend that India is not in Asia.PG: Oh, there is a lot more to shake your head over. It was giving me
This Is the Debate Conservatives Betsy McCaughey and Sarah Palin accused Ezekiel Emanuel of wanting to limit the medical care available to a child with cerebral palsy. Emanuel's brothers Rahm and Ari are well-known, but he also has an adopted sister -- who has cerebral palsy.
High School I don't know which of my former classmates' actions on Facebook confounds me more:The guy who went to Tulane, failed out because he was partying too much, came back to the local college, graduated and took over his dad's successful insurance agency: Lou DobbsScott Davis is a fan.orThe girl I didn't know well in high school but accepted her friend request because I'm like that, and
If I Say It, They Will Contradict Me I may have to abandon my long-held position that nobody sane will say there is anything racist in a criticism of Obama so long as it is a criticism that would have been made of a white president otherwise identical to Obama. Pretentious elitist, yep; tyrannical socialist, yep; liberal pansy Neville Chamberlain, yep. I had to take Philip Kennicott out of the "
The WaPo Editorial Page Is Full of Fail This Week Today it's Michael Kinsley: You've probably heard by now that Harry and Louise have changed their minds. This fictional couple dreamed up by the health insurance lobby to stop the last attempt at health-care reform -- led by Hillary Clinton in 1993-94 -- is back on the air, declaring that reform is essential. A news release from the insurance
Philip Kennicott Proves Himself the Exception A culture critic for The Washington Post, Kennicott appears to be the one person who does see something racial behind every criticism of Obama -- despite Kennicott himself being a white guy. During last year's campaign, he responded to Republicans' petty criticism of Obama's literal platform to accept his nomination at the Democratic Convention in a
Why Latinos Might Be Angry About Sotomayor's Treatment Eva Rodriguez makes a perfectly unassailable point that Latino voters should not hold against Republican senators a vote against Sotomayor that is based on her legal philosophy ("due process or preemption or disparate impact analysis under Title VII"). What this neglects, however, is that not all of the opposition to Sotomayor that was stated
Or, Uh, The Base-Closing Commission? Ruth Marcus triumphantly ties together two of today's headlines in a single editorial: "If you're interested in how to get health-care costs under control, the case of the F-22 offers an instructive example. ... Which brings me to health care, and one of the most promising ideas for constraining rising costs: Get politics out of the decision making about how
If You Prick Tom Cruise, Does He Not Bleed? Both the NYTimes ad and the publisher's website for the book Valkyrie by Philipp Freiherr von Boeselager (the last surviving member of a group that plotted to kill Hitler) most prominently feature the following endorsement: “von Boeselager’s story is far removed from the new and sanitized Hollywood take on the July 20 plot….[an] astonishing memoir.”-
Isn't This What You Wanted? This WSJ Law Blog post from last Thursday puzzled me: Republican senators are getting at a second bite at Judge Sonia Sotomayor this morning. Their cross exams so far are focused, once again, on the supposed disconnect between Sotomayor, the judge, and Sotomayor, the speaker. The tone has become noticeably chippier this morning, especially from Lindsey Graham (left)
The New York Times, of which I am a voracious reader, recently published an article on the underrepresentation of Blacks at the partnership level in major law firms. The data is indisputable, but the interpretation of the data is not.
Large law firms, attempting to fight the perception of racism and perhaps signing onto some societal goals of racial distributive justice, hire a significant number of minority lawyers whom they would not hire but for the color of their skin. This doesn't mean that the minority lawyers hired are not, generally speaking, high quality law students. However, given the constraint of a limited number of associate positions at every firm, every degree of consideration given to race becomes a degree of consideration not given to other qualities.
To a critic of hiring policies that are not race neutral, the result of few minority associates becoming partners is a natural consequence of this fact. Their assumption is that these other qualities are what make a good candidate for partner. A proponent of the policies, on the other hand, might argue that minorities are excluded because of their race once they become part of the firm, an dthat this could be fixed if firms were to be more proactive. In reality, the reasons why minority associates are less likely than their white colleagues to make partner are complex, and both points are fair ones.
A minority associate most likely has been affected by a long chain of policies preferring minorities: undergraduate admissions, law school admissions, and hiring. The aim of these policies from an equality of opportunity standpoint is to counteract the disadvantages of growing up as a minority. If the policies are simply nudging marginally underqualified people into marginally tougher jobs, then, absent additional resources, they may simply be setting people up for failure who would otherwise succeed. An associate who does not make partner in a top 5 law firm might have made partner in a top 10 law firm, and an associate who does not make partner in a top 10 law firm might have made partner in a top 20 law firm. Having race preferential hiring policies absent some minimum level of additional support for minorities may actually be less desirable for those who share the goals of those policies than not having them at all.
Furthermore, a marginalized minority associate at a corporate law firm in NYC could have used the skills acquired in law school to have become a community leader in a smaller city or town. If we examine the end goals of race preferential policies-- for one, creating positive role models for the next generation of minorities-- I have to wonder whether society wants to encourage large law firms to prefer minorities. Other good reasons may exist for encouraging race preferential hiring policies at large corporate law firms, but at least in this respect the goals seem inconsistent.
In any event, regardless of one's view on race preferential policies for minorities, almost everyone would prefer to eliminate the disadvantages of minorities from the start. The New York Times Magazine recently had a fascinating piece in part on a unique approach to education of poor students. Critics of private and charter schools like to point out that few succeed at educating students where public schools also fail. However, KIPP schools, an uncommon exception, may prove the rule about the worth of exploring alternatives to the traditional public school system and its educational methods.
The idea the biggest differences in the outcomes of former children of poor parents and former children of wealthier parents is in the ways they are raised to communicate is an appealing one. Yet I have to wonder how much of the difference in KIPP's results is based on factors other than teaching philosophy, such as KIPP teachers' willingness to put in 15 hours a day on a regular basis. This amount of work may even make some corporate lawyers feel lazy. Despite the numerous challenges faced by low income students and public school districts in low income areas, I suspect that ultimately the reason many people in this country are undereducated is simply because society sets a low priority on education and has a low expectation of children of poor parents.
What would the world be like if we gave public school teachers in even the lowest income districts the professional respect and salaries of corporate lawyers and investment bankers and in return demanded similarly high levels of performance? My thought is that the government should be require extremely high performance from poor schools and, in return, be willing to throw large enough sums of money at teachers and administrators who are competent enough to overcome these challenges posed by such settings. If we lived in a society with true equality of opportunity, where students from poorer backgrounds consistently achieved as high as students from wealthier ones, perhaps the need for race preferential policies at any level would disappear.
The type of lawyer I will be was determined recently in Torts while we were talking about the Coase theorem and homeowners damaged by pollution. I suggested that if I were a factory owner having the right to pollute and homeowners could pay me to stop, I would choose to pollute much more than I needed in order to hold homeowners hostage for the entire surplus.
To borrow on the example from my class, let's say that when I, the factory owner, have the right to pollute and produce at my operations profit-maximizing level, I cause $500 of harm to 10 homeowners. Let's also assume that they can act as one unit. In this situation, we might think that homeowners collectively would be willing to pay me up to $5,000 if I could eliminate the pollution entirely. Assuming no transaction costs we would ordinarily just set the marginal social benefit of pollution abating equipment equal to the marginal social cost of the equipment.
However, let's assume that I decide to pollute slightly above my operations profit-maximizing level. We have two costs to this: 1) the cost of increased pollution, and 2) the cost of generating excess pollution. If the second cost is roughly nil, in a world without the homeowners I would be indifferent to the level of pollution. However, in a world with the homeowners, the more harm I can cause, the better bargaining position I am in. If I can cause $10,000 in harm instead of the operations profit-maximizing level of harm, I can hold up the homeowners for an additional $5,000 in order to eliminate the pollution. In non-discrete terms, I would have an incentive to cause pollution as long as each additional unit of pollution I caused increased the amount of free money I could get from homeowners later on. In theory, the only check on the potential maximum compensation I would get would be when the homeowners' marginal utility of decreasing pollution met my marginal cost of producing it. However, let's assume the curves diverge. Say the cost of producing pollution is held constant at 0 and the marginal utility of decreasing a unit of pollution is constant.
Now, we would only have to compare the marginal utility of decreasing pollution with the marginal utility of purchasing other goods. Assuming the marginal utility is very high relative to other goods, I could theoretically reduce the homeowners surrounding my factory to the level of subsistence and take virtually all their surplus utility. True evil.
The more interesting point is why this doesn't work. Looking from a broader viewpoint, all of us can do all kinds of things in our lives to harm other people, but usually refrain for good reason. Cooperation tends to be a more effective strategy than defection. People don't like feeling cheated or held hostage. Additionally, if factories owners began doing this to people, their right to pollute would eventually become a right of homeowners not to suffer from pollution (and homeowners might then hold factories hostage for their profits).
The other interesting point is in the distinction between a property right and a right to recover for harm. If a homeowner is particularly sensitive to pollution, a right to recover for harm in a court would require this person prove that unusual sensitivity in order to receive increased damages. However, damages would have to be proven and would have to conform to some standard of reasonableness. A homeowner could not simply get away with claiming that he just really hated pollution and that it was worth a lot of money for him to be pollution free when this preference wasn't within so many standard deviations of the mean preference.
At least to some extent, we want to extend property rights over the right to recover for harm (and injunctive relief over damages) when we want to allow more room for individual idiosyncracies. Perhaps on a broader scale, the ratio of absolute property rights to indeterminate tort rights is a measure of society's valuation of individuality to efficiency.
I really love my torts class and professor (Baker). He is an insurance/economics guy, and I feel like the issues we discuss in class are always on a really high order of abstraction. This makes things very interesting and fun. Baker basically just explains the cases briefly and then asks people questions about (in my mind) more important things-- the principles that are drawn out of the cases.
One of the issues we have been talking about a lot is the trend for courts to hold people or companies responsible for harm to others only when they are negligent.
The standard for determine negligence is generally "reasonable care." In other words, the amount of care a reasonable person would take. Since this is really vague, courts have employed a cost-benefit analysis called BPL. The "Burden" of a measure must be less than the "Probability" times the "extent of Loss" in order for an entity to be held not to have taken "reasonable care."
The negligence standard may have an appeal for intuitive reasons of fairness, but I believe that a strict liability standard would be more efficient.
Imagine that a company can spend from 0 to 100 on safety, and that customers can incur a loss of 0 to 100 from injuries. Companies face declining marginal returns on investment, meaning that the moving from level 0 to 1 produces a lot of decrease in the cost of injuries, whereas moving from level 99 to 100 produces almost no decrease. The optimal level of investment is where the sum of costs (actually net costs, but I'll just refer to them as costs for simplicity) are minimized. The graph would look something like this.
The distance from the point (0,0) to the line is also minimized here. For those of you who weren't math majors and can't tell what the algebraic function would look like from the graph: Cost of Injury = (Some Constant) * (Cost of Investment)^x, where x, the power (exponent) of Cost of Investment, is between 0 and 1. (Fun fact: when x = .5, the angle of the line from (0,0) to the Total Cost line is exactly 45 degrees.)
In this case, the optimal level of investment is 45, and the optimum amount of injury to customers is 25. Because of declining marginal net benefit on investment (because x is between 0 and 1), it is impossible to eliminate all injury.
Assume that the probability that an accident will happen to any one customer is very low. People tend to discount or even truncate low probability, high consequence events when making decisions, so absent a law imposing any liability on the business, it would never bear the social costs of investing no money in safety. Therefore, it's really wonderful that we have liability law. In fact, since x is between 0 and 1, the Total Cost line forms an asymptote with the x-axis. If a company spent 0, cost to injured customers and, in turn, society would be infinite. (I point this out, of course, to show the limitations of using mathematical models. At some point customers would start considering safety. However, within a certain range the model approximates reality quite well, which is why people use it.)
In order to maximize social welfare, we want a company spending less than 45 to raise its spending to the optimal level, and we want a company spending more than 45 (over prioritizing safety) to lower its level of spending to the optimal level.
Now comes the fun part. Social cost is actually a function of the standard deviation from the optimal level of investment of companies in this industry. I won't prove that (partially because I think I lack the math skills, but I would be grateful if someone else would like to in a comment). Just think about it for a second. The further away from optimal a company goes, the greater the total cost to society. In fact, the cost gets greater at an increasing rate.
In other words, we can say that Society's Costs = (Std. Deviation)^x, where x is greater than 1. (I think this is because the power of x in the equation above was less than 1. Now I'd really be interested to see the math if someone wants to tackle this.)
So, we can view reducing standard deviation from the optimal level of investment as a goal in itself. In other words, a low margin of error from optimal is extremely valuable.
Under the negligence standard of "reasonable care," courts are supposed to make this determination. Businesses have to try to pursue not the optimum level, but the level at which they think the court will consider "reasonable." Businesses spend tons of money every year and hire professional industry analysts to try to make precise, quantitative cost-benefit analyzes. If businesses were internalizing these cost-benefit analysis decisions entirely (that is, if they were required to pay for all the costs: the cost of investment and the cost of injuries), then they would have a significant incentive to meet the optimum level of investment as closely as possible and to keep low the industry's standard deviation from optimal investment.
Courts, however, do not employ management consultants with MBAs from MIT. The standard deviation from optimum when the court decides liability under "reasonable care" on a case by case basis will much higher. This is both because the court's own approximation of the optimum level of investment is likely to be imprecise and also because the decisions are somewhat unpredictable-- businesses will have a hard time trying to measure what "reasonable care" is.
Holding a business liable under a relatively strict standard would force businesses to internalize all the costs of injuries. They would ultimately choose something close to the optimal level of investment and then pay for any injuries that did occur. This would both decrease the standard deviation from optimal and decrease the amount of litigation, since the business would have a large incentive to settle most claims when it knew it would be forced to pay most claims.
Furthermore, a business gets a "double payout" for investing in a reasonable amount of care. Not only do they reduce the number of injuries and thus the number of claims they might have to pay, but they also don't have to pay claims at all as long as they exercise what the court considers "reasonable care." Conceivably, this would lead to over investment in safety compared to a stricter standard. Firms under "reasonable care" would be very concerned with erring on the side of caution. Assuming courts don't dictate a suboptimal level of investment to begin with (which is a possibility), this would lead to over investment in safety.
As long as the law can fully compensate me if I am injured, I would personally prefer for firms to be as efficient as possible because this would give me the highest quality service at the lowest cost. Whether they err slightly towards investing too much in safety or slightly towards investing too little is pretty irrelevant to me, assuming the law will fully restore me if I am injured.
I also think issues such as moral responsibility and blame apply only to individuals. When dealing with repeatable, predictable events on a large scale, statistical level, a focus on efficiency and preventability should trump attempting to apply standards of morality developed for individuals to multimillion dollar or multibillion dollar organizations.
Also, some non economists fail to realize that the arguments economists make about efficiency do not have normative components to them. In this case, I am not sure that the other values are incredibly important compared to the extreme inefficiency of the "reasonable care" standard. However, I don't make this claim with much force, and I haven't put a lot of thought into it. I'll stand by my math and economics, but there is much room for debate on the value level.
Before arriving for orientation at Columbia (two days before our first class), the administration failed to tell us anything about either our classes or the textbooks we would need for them. We all had to buy them new at the Columbia bookstore instead of having the opportunity to buy them through amazon.com or another source cheaper than the bookstore. The bookstore failed to order enough textbooks despite an agreement with the professors of our Legal Methods course, and there were severe shortages. The store had to have these books shipped overnight at great expense to them and the inconvenience to many students.
I purchased all my textbooks at the Columbia Bookstore as soon as I got my schedule. I carefully read their return policy because I hate to buy new books if I can help it and wanted to try to avoid some of the potential costs to me of the decision by the administration not to give me an idea what textbooks I should buy in advance. The policy stated there and in other places in the store was that I could return the books up until September 14th, the end of the second week of classes at the main campus. Of course, I read all of the exceptions to insure that I would actually be able to return these books if I ordered cheaper ones online, and I even confirmed with the clerk that I would be able to do this.
I went and purchased a ton of cheaper used books online with the intent to return all of my new ones. I also selected the slowest, cheapest shipping method with the understanding that I would be fine to return the books up until September 14th.
When I went to return some today, they pulled out this sheet of paper saying that I had never seen before:
I told the woman that I had never seen that sheet and that the policy they gave me with the receipt says that the last day to return the books is September 14th.
As I anticipated, she told me that that doesn't apply to "special courses." I then whipped out my statutory interpretation skills and pointed her to the relevant text of the policy, which as you can see, clearly states "special one-week courses," not "special courses."
The woman then went into the back, apparently to talk with managers. After a few minutes she came back and told me that the books have stickers which say "no return" on them, but that she would go ahead and make this one-time exception for me. I wasn't going to give up, however, because I still have over $150 worth of books I need to return when I get the used books in the mail.
I said that none of the books I purchased had "no return" on them, and I told her there was nothing about no return on the books as I bought them. She replied that mine must have been the only ones without this information, and then when I challenged her on this she there was something actually on the book description below where the books are.
I told her that if I actually had missed this on the day when I bought my books, then I understood that I wasn't entitled to refunds on these and wouldn't press my case, but she insisted that they would make a one-time exception for me-- they just didn't want everyone bringing their books back.
I went to the back to see how I could've missed these stickers the first time I bought the book because I was genuinely curious and convinced that I had made a mistake. I find one of the books on the list, the Strauss Legal Methods book, and am looking for something that says "No Return." Not being able to find this, I ask the bookstore employee standing to my left if these books are "No Return" and where it stated that. As I ask him this, I notice that he had in his hand a big roll of bright-red "No Return" stickers and that he had been just been plastering these all over the section which contained our "Legal Methods" books. In response to my question, he held up the stickers and said he was about to post one there (by the Strauss book) as well.
He then asked me if I was the one up at the front, and I told him I was and then explained that I had been planning to return many more of the books before September 14th than just the two I had brought with me today. He asked me when I would be able to do it and I said "Probably within a week." He then told me they would make an exception for me and told me to ask for him by name when I came back to return the other books.
This whole fiasco was a pretty clear attempt by the bookstore to enforce a new return policy after we had all already bought our books under the previous policy. While I understand their desire not to lose money on these books, they are the ones who messed up by not labeling the books as "No Return" or adding this into their policy before I bought them. This oversight on their part caused many of us at the law school to order used books online under the assumption we would be able to return them.
I rightly assumed there is at least one other 1L who bought these books before they put up the stickers and now wants to return them. I knew the bookstore would direct them to the stickers if the tried to return the books, so I wanted people to know that these stickers were only put up today, and that the bookstore is clearly in the wrong here, so I posted a message on a CLS '09 Facebook thread.
While I suspect many people will end up getting these refunds, in a way this is a hollow victory. I am sickened by the obvious Pareto Inefficiency of the circumstances surrounding all of this. If the company ends up complying with its own stated policy, then this only shifts the cost of a massive amount of waste they created back onto them, which I think is only fair.
The waste they created is defined as the money students spent on used books ordered to replace these new ones (Used Cost), minus the resell value (Resell Used) adjusted for the shipping costs here and to wherever they would go next (Shipping) and for the extreme hassle everyone would have to go through in order to sell these books and ship them out (Hassle).
More concisely, the waste to law students if the store did not honor its policy would be:
(StudentWaste) = (Used Cost) - (Resell Used) + (Shipping) + (Hassel)
The significant costs to the bookstore of absorbing its mistake would be the restocking expenses (Restocking), the storage fee for all these books for one year and the lost opportunity cost of storing other things (Storage), the loss to capital including the opportunity cost of capital-- in other words, they could have had the money invested in an appreciating rather than depreciating asset-- (Capital), and the potential for massive depreciation of capital if the professors decide to publish a new edition or decide to switch curricula at all (-Resell)+(RiskChange)(CostChange). Of course, 0 < (RiskChange) < 1. Thus, the costs of the waste to the bookstore is:
(StoreWaste) = (Restocking) + (Storage) + (Capital) - (Resell) + (RiskChange)*(CostChange)
One thing I would like to note here is that, if (StoreWaste) > (StudentWaste), then the Pareto-Efficient outcome would be for the students not to return the books and for the store to pay the students some premium (PayOff) in addition to (StudentWaste) in order to have the students deal with the problem. In order to be Pareto-Efficient, that is, beneficial for the bookstore and the students in this circumstance, the equation would have to be as follows:
(Payoff) + (StudentWaste) < (StoreWaste)
A second, more significant level of waste may have been created by the administration's failure to inform student's of their class schedules and required textbooks in time for the students to order used books before arriving at Columbia. The administration may have had good reasons for not having done this, but I think any reasonable person would concede that we should be weighing whatever those reasons are against some precisely-defined costs to the students and the bookstore.
New books experience a high amount of depreciation on sell-back, particularly if students need to write or highlight in them, which is the case with many law-school textbooks. Although compared to the market for other textbooks, the market is much tighter for clean law textbooks and depreciation higher (since most students will still be writing in the clean used book), I'd still estimate that students can save at least 30% by buying a clean used copy and 10% buying a new copy online. (The textbooks bought at the bookstore were not subject to sales taxes, or this would change the formulation to weigh even more heavily towards buying online.)
In addition to the percent savings estimates, I will make the following additional assumptions in calculating the cost of the administration's policy:
1) All students paid an average of what I paid at the bookstore, $246.35.
2) Only new copies were sold to students in the bookstore.
3) 250 out of 350 students in the 1L class at Columbia would have chosen a clean used copy over a new copy if any price difference existed between the two.
4) Out of the 100 students who preferred the the new copy, 50 preferred the convenience of the bookstore over ordering online.
With these things in mind, some simple mathematics can shed light on the cost of the administration's policy of not ordering textbooks (Cost Policy):
(CostPolicy) = ($246.35)*(.7)*(250) + (246.35)*(.9)(50)
(CostPolicy) = 54,197
As this figure suggests, my assumptions allow for a fairly wide variation before (CostPolicy) becomes insignificant.
Before finishing and getting to the reading of these books I'm discussing in the abstract, I'd like to delve into some possible components of (CostPolicy) and suggest that there may be a Pareto-Efficient alternative to the current policy.
First, let's make the simplifying assumption that the only parties we should care about are the law school, professors, and student body. Also, we'll assume while working with the benefits and costs to each entity that no benefit or cost to one entity have any positive or negative effects on any other entity other than effects I state below. This last assumption is highly doubtful given the nature of the relationships among the 3 entities, but we can cast this aside since the outcome I'm going after, Pareto-Efficiency, harms no entity while benefiting at least one entity.
Let's assume that the law school gets a percentage of every sale that the bookstore makes to entering 1Ls. If (KickBack) < (CostPolicy), that is, if the total amount of income the law school receives from these books is less than $54,197, then this situation is Pareto-Inefficient between the two parties. Since professors are also getting royalties from every sale of a new book they have written or edited, then we must add this into the equation as well.
How we account for royalties is a bit complicated, because if a student doesn't buy a new book at the bookstore, that doesn't mean that the professor completely loses royalties for that book, since a student then shifts her purchase to the used market. This purchase in the used market depletes the supply of used books, and the student's markings in the books deplete the supply of clean used books, making the price of all used books higher, and closer to the price of new books. Since new books and used books are imperfect substitutes, the markets for the two types overlap significantly. If the supply of used books falls, the demand for new books rises, although not at a 1:1 ratio (otherwise they would be perfect substitutes).
Even making an educated guess about this ratio, called the degree of substitution elasticity, would require an insanely large amount of data which I, unfortunately, threw away just today thinking I would never need it. In any event, my intuition is that this factor is quite significant and so I will assign it (SubElasticity) a value of .5, which I think is very conservative given the high premium placed on clean copies of the books. I would give this number a much higher weight if I could safely assume the book was used by thousands of students in classes around the country and take the preferences of the 1L students at Columbia as a negligible part of this whole.
Assuming that every new book a student forgoes for a clean used book costs the professors half the royalties they otherwise would have received, assuming that professors at this law school are collectively are receiving a 15% royalty on the books we buy with them as editors or contributors, and assuming everyone bought the Strauss Book which I bought for $92.15 and the optional Greenwalt book which I bought for $17.75, then we can define net royalties (those existing under the current policy, but which would be lost if students knew about their textbooks in advance) as:
($92.15+$17.75)*(.15)*(.75)*(250) or (NetRoyalties) = $3090.94
This is not an insignificant cost, but is of a different order of magnitude than the aggregate cost of the waste imposed on students (CostPolicy), which, again, is $54,197. Even if the law school gets an additional 5% (KickBack) from every book sold at the bookstore, the benefit to the law school and professors combined still doesn't even come close to (CostPolicy).
(KickBack) = (.05)*(300)*($246.35) = $3695.25
(KickBack) + (NetRoyalties) = $6786.19
Now we get to the good stuff! Any "other reasons" that Columbia might have for this policy must add up with (KickBack) + (NetRoyalties) to equal (CostPolicy). In other words, the "other reasons" must be worth $47,410.81. To put it all together simply, if: (OtherReasons) + (KickBack) + (NetRoyalties) < (CostPolicy) then the situation is Pareto Inefficient. As long as (OtherReasons) is less than $47,410.81, and, there may actually be no other reasons, then the situation is not optimal.
The cost of waste to the student body in this scenario is $154.85 per student. The cost of the law school's kickbacks and the professor's royalties combined in this scenario is about $19.39 per student. Subject to significant inaccuracy in accounting for one or more crucial assumptions, the model I've set up clearly shows that the law school community is harmed much more than it is helped by this policy.
To put this more bluntly, if the law school informed students of the textbooks they needed to buy beforehand and incoming 1L students next year simply gave the law school an extra $154.85, the students would be no worse off than they are under the current policy (assuming the bookstore doesn't allow returns) and the law school would have an extra $47,410.81 after they paid off the professors for lost royalties. If the 1L students next year simply compensated the law school and professors for all their losses in exchange for the change in policy, the student body would have an extra $47,410.81 and the school and professors would be no worse off than they are now.
What's important to me as an economic thinker is not whether such a surplus is distributed to one group or another. Certainly, every group would want a share of the bigger pie. However, I am very concerned with the complete waste in aggregate of tens of thousands of dollars if no good (OtherReasons) exist for 1Ls not being able to purchase these textbooks online ahead of time.
The data available comparing the number of railroad workers injured and killed in the late 1800s to the price of preventing most of these injuries and deaths suggests that employees, if employees were assuming these risks for higher pay, were placing an incredibly low value on their own lives. However, a more plausible explanation asserts itself, and that is that people tend to discount both long-term risks and low-probability high-consequences events when making decisions. In other words, someone offered a railroad job was very unlikely to be thinking of (or even have the capability of accurately assessing) the multitude of low-probability high-consequence risks when deciding whether to take the job or not. He was more likely thinking of how he was going to feed his family. Even if a potential employee did consider these risks and demanded a higher wage, the railroad could always find hundreds of other qualified candidates not considering these risks and willing to take a lower wage. In the absence of collective bargaining, we again encounter a race to the bottom-- this time in hiring.
However, before we pull out our copy of Das Kapital and start planning the revolution, we should examine how we could harmonize the incentives of managers with morality.
The Railroad Safety Act of 1886 was an attempt to remedy this situation. The legislature perceived this social inefficiency and properly concluded that there were too many unnecessary deaths and industries in the injury. Their solution to the problem was to require railroads to install certain equipment on the trains which would prevent a significant number of injuries and deaths.
While the legislation succeeded in reducing the number of casualties among railroad workers, it was a blunt ax where a fine scalpel would have been of better use. In light of the confusion in the industry and courts over interpretation of some of the statutes, the simplest solution to this problem (and similar problems in many industries) seems to have been simply to alter the common law doctrine of "assumption of risk" by statute, creating a legal presumption that an industry would be completely or in some significant part liable for any damages suffered by its employees in the course of their work. If companies had to pay out a certain amount every year for every employee hurt or killed in the course of employment and these amounts were assessed in line with people's true values of life and bodily integrity, then the companies would be in a good position to harness their competitive energies towards allocate scarce resources to preventing the greatest number of injuries and deaths as cheaply as possible.
One implication of this solution, given that workers don't properly account for the risk of injury or death at the time an employment contract is created, is that railroads could simply require workers to assume these risks explicitly as a condition of employment. Indeed, this happened in England with railroad safety legislation in the same time period and drained the legislation of all its power. If we are not to accept the inefficiencies of an extremely artificially low value being placed on life and if we assume we can't change human nature to make people fully take these risks into account, only two possible solutions arise.
If workers were not allowed to assume these risks either implicitly or explicitly, companies would be forced to assume liabilities. One of the objections to requiring this in common law was the idea that people should have some sort of fundamental right to contract. More broadly, this belief is based on values of personal freedom and autonomy. A strict deontologist would conclude that these values should never be sacrificed for utilitarian ones, like saving many lives and preventing many injuries. If this is the only feasible way to attain those utilitarian goals in a capitalist system, then I find the argument unpersuasive.
However, John Kenneth Galbraith's concept of countervailing power points to another solution, but a discussion of that concept and solution will have to wait until I can get away from my casebook again.
In 19th century American and English law, the legal doctrine of "assumption of risk" kept workers employed in dangerous industries from collecting damages from their employers for injuries on the job and kept the widows from collecting in the event of death. The primary causes of injury and death were when men had body parts smashed while linking cars together with a pin and when they fell or were knocked off of the tops of moving trains. The percentage workers killed or seriously injured in the railroad industry was staggering, and in an era before the modern welfare state and before workers formed cooperative insurance companies to pool risk, this legal principle effectively condemned widows, crippled workers, and their families to destitution.
The principle of "assumption of risk" was based the belief that railroad workers, upon taking employment in the industry, were accepting the risks of a hazardous occupation in return for better pay, and that this higher pay released the employers from liability. In common law, when a person took employment, he or she was legally presumed to have assumed all the risks of that employment unless the employee and employer explicitly contracted otherwise. Why would presumption be that the employee and not the employer assumed the risk of the occupation? This notion may seem odd to the 21st century reader.
In pre-industrial times, this policy may have made economic sense. That is, holding employees liable might have prevented more injuries and deaths for a lower cost than holding employers liable. In the late 19th century, however, management theorists began to turn the lens of their industrial theories to focus on the problem of risk. If managers were to accept human fallibility as inextricable component of homogenous, industrial process, then they could develop systems which would minimize the risks posed when a worker inevitably made a mistake. The answer to whether workers or employers could best manage risks comes down to an issue of information asymmetry: while a worker may only have had access to his own experiences and those of a few fellow employees, the management of a national railroad company potentially had access to mountains of risk data from which patterns could be inferred.
Because of this asymettry, the argument goes, an employee would have to exert significant resources to preventing injuries, whereas managers could prevent them relatively cheaply. Scientific scrutiny of industrial organization reduced the costs of production for many other commodities, and now the commodity of safety could also be purchased much cheaper.
However, here we encounter the fundamental problem. If a company supplying a homogenous good, coal for example, can devise a way to increase efficiency by lowering the marginal costs of each unit of coal, it can undercut its competitors, steal business, and reap increased profits. The increased profits of the innovator and decreased price of coal in the market induce other coal producers to adopt such a practice (or innovate themselves) in order to decrease operating costs and survive. At the end of this cycle, consumers spend less money to buy coal, and producers operate more efficiently.
In the case of safety this principle operates in quite the opposite way. If workers assume all the risks of their occupations, then a manager has no financial incentive to worry about worker safety. One might argue that a moral incentive is enough, and that a manager should undertake to improve worker safety because it's the right thing to do. However, assuming that any dollar spent on safety is an expense and is not recovered by savings from lower wages (an argument I will address shortly), any dollar spent on safety must come either from increased prices or decreased profits.
As it turns out, neither of these options actually increase the welfare of the business. If the company attempts to pass on the cost increase to indifferent consumers, who only care about the price of the final good (and not about the 1 in 10,000 chance that someone involved in the production of a unit would be seriously injured), then these consumers will begin to buy all their products from the company's competitors, forcing the business either to cease making expenses for safety or to go bankrupt.
One might be tempted to see this situation as a conflict between the greedy company's desire for profit and the safety of common workers. However, if the extra dollar spent on safety is taken as a loss by the company, the return on investment to shareholders will fall. The company must compete with other companies for shareholders' capital just as much as it competes with other companies for product sales. If shareholders are relatively indifferent to the suffering of a company's ex-employees and their families and remove their capital from our socially responsible coal company, the business will no longer have the means to expand and will likely shrink.
What should be drawn from this analysis is that, if a company chooses to be humanitarian in this environment, it will likely go bankrupt or at least remain a localized oddity. The end result is that all successful businesses are immoral.
But wait! What about the assumption of risk doctrine? Isn't a company's cost of labor higher because of the extra pay it gives to workers to compensate them for taking a risky job? If so, wouldn't the company more than make up in savings on wages what it spends on safety?
I will address these questions in the next post.
The idea for this blog came to me after a discussion section for my first year Legal Methods class at Columbia Law School today. During this class, I had spoken out on a number of issues relating to some legislation passed in the 1890s and a subsequent court case interpreting this legislation. I was tearing into the legislature, the ICC (Interstate Commerce Commission), and a federal appeals court with what were, to me, dry and obvious economic arguments involving phrases such as "perverse incentives" that sounded much more emotionally charged in a legal setting than they ever did to me in my economics classes. I thought I had come off as framing the issues in a very simplistic way, and was a bit embarrassed. I was surprised when, later in the day, several people in my class who made a number of good points themselves, complimented me on the issues I had raised in the discussion section.
The tools of economics have so far been vital to my positive and normative understanding of the law, and I expect they will continue to inform it as I continue through law school. In addition, the context that an economic framework provides helps me better retain the issues of law and legal theory that may be more directly relevant on a final examination. Expressing these thoughts to larger audience and flushing them out more fully through debate may contribute even more to my retention and understanding and, ultimately, to my success in law school and beyond.
Thus, the benefit of readers is not my primary concern, but hopefully my activity will produce some useful externalities.
Saturday, 26 August
01:00
So that's it. RIP Three Years of Hell, June 2, 2003 to August 25, 2006. After all these words, there are only a few things left to say. Two sites, the Imbroglio and the Volokh Conspiracy, have given me a...
Dear Wormwood: Our correspondence over these last few years, put together, may be the single longest thing I've ever written. For old time's sake, however, I hope you'll allow me to give you one last list, a few things I...
Dear Wormwood: I promised you two letters that might help your friend Scrimgouge in starting a 1L blog. The first letter focused mostly upon matters that any blogger, legal or otherwise, might find useful, be they technical or stylistic. But...
Friday, 25 August
23:00
Say hello to Luis Villa, a 1L at Columbia law school. He's another coder turned lawyer, and his musings on code and law strike a cord. If there's any other Columbia Law School bloggers who would like to tie their...
22:00
Right... self-imposed deadline of tonight to finish this thing off, and still four or five posts that I need to complete. Right now all that quick typing in exams is coming in handy!...
00:00
Dear Wormwood: Who is this Scrimgouge whose email address you've forwarded me? It's certainly very flattering that he's asking you to ask me for advice on starting a law school blog. Nevertheless, there's no good reason for him to ask...
Thursday, 24 August
21:00
A friend of mine just gave me a "post bar exam gift": a copy of Ichisada Miyazaki's China's Examination Hell: The Civil Service Examinations of Imperial China. From the first page: Competition for a chance to take the civil service...
16:00
Forwarded from a current Columbia Law Student, from one of Student Services' fantastic new staff members: We have put in place a new system, the Student Organization News and Information (SONI) System, which allows student organizations and journals to email...
03:00
Strange circumstances conspire to bring me back to New York just before the blog ends. I drove through Jersey late last night. A blind man could smell his way up the Jersey Turnpike. My memory of New York will be...
Friday, 18 August
07:00
Dear Wormwood: The bar exam is over. I've moved away from D.C. to Another State. [1] And today the last signs of law-student living left me: my free Lexis account no longer works. I feel I shall soon have withdrawal...
Over at the Republic of T, Terrance has been chronicling battles in Wisconsin and Virginia over the interpretation of either Defense of Marriage amendments or alterations thereto. The argument is wearily familiar: that the text of the legislation is overbroad,...
Monday, 14 August
16:00
Another "oops" in Lebanese photography, this time from the AP. Fact-checking seems to have gone out of style these days. Worse than journalists, credibility seems on shaky ground with lefty law professors. The ever-dependable for the lunatic fringe view Brian...
Friday, 11 August
22:00
I guess the guys at DailyKos are a bit giddy after their victory over Kiss Me Joe, because they're hawking the story of a photoshopping scandal. According to the Kossacks, the GOP decided to paint a Hitler moustache on Howard...
18:00
Compare and contrast this New York Times editorial on "castle doctrine" laws with this fisking. As those who just took the New York bar will recall, New York requires someone in fear of their life to make reasonable efforts to...
Monday, 07 August
14:00
After forcing Reuters to pull a third rate forgery from its video archives, bloggers are having a field day finding more suspicious photos from the Israeli/Hezbollah conflict. My guess is that many will turn out to be perfectly valid images,...
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