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The Columbia Continuum


Saturday, 10 May

18:00

interesting research on ‘conditional cooperation’ by Luis Villa's Blog posted

Interspecies cooperation

Interspecies cooperation by Barry Rogge. License:

For those interested in some of my previous writings on intrinsic motivation, this survey paper by Simon Gächter may be of interest.

Key sentence:

[W]e find strong evidence that many people’s attitude toward voluntary cooperation is conditional on other people’s cooperation… Moreover, the fact that many people contribute more the more others contribute also speaks against pure altruism explanations, because they predict that people reduce their own contributions when informed that others already contribute to the public good.

Basically, the paper argues (and justifies through a survey of experimental evidence) that a majority of people are ‘conditional cooperators’ who cooperate in community projects (voting, paying taxes, charity work, etc.) if and only if other people cooperate. If they think others are ‘defecting’ (i.e., not cooperating) then they will stop cooperating as well.

The paper also has some more detailed observations that come out of the experimental work; among them that voluntary cooperation is fragile; group composition matters (i.e., groups with more conditional cooperators will be healthier); and that ‘belief management’ maters- i.e., if people think that they are in a group with more conditional cooperators, that group will be more robust. None of these will come as a huge surprise to anyone who has been involved with volunteer communities, but still interesting to see it experimentally confirmed.

I’ve always suspected that something like this is the case, and that it explains in part why the GPL is so successful, since it uses copyright to force cooperation and penalize defection, and (importantly) makes a clear public statement that that is the case, which serves a signaling function (everyone in the community knows these are the ground rules) and a filtering function (people who aren’t interested in collaborating don’t join as much as they join other groups.)

The paper is only 25 pages and fairly readable; if you’re interested in the dynamics of volunteerism I recommend it.

Those of you who aren’t into economists and their fancy ‘measurements’ may also want to look at this related early paper, which is somewhat dated (the concept of low and high authoritarians is sort of discredited at this point) but still possibly of interest in explaining some of the psychological mechanisms at work here.

(Came to this by way of this paper on tax evasion, which looks to have many other interesting citations that I should investigate once exams are done. Only Telecoms left…)

Friday, 09 May

03:00

by Half the Sins of Mankind posted

The Deserving Working Class in New York While tenant advocates are right to be suspicious of private-equity firms who get unusually high turnover in rent-controlled buildings (thus allowing them to raise rents again and again), I was surprised by this statistic: "Rent-regulated apartments comprise 57 percent of the total in the Bronx, 42 percent of the apartments in Brooklyn, 59 percent in

by Half the Sins of Mankind posted

Sad Cathy Horyn knows clothes. But her failure to mention Edna Mode, in an essay on the Met's exhibition about the intersection of comic-book fantasies and fashion, indicates that Horyn hasn't kept up with the newest things in superheroes.

Thursday, 08 May

02:00

by Half the Sins of Mankind posted

Oh, NOW There's Good Sushi [Insert rant about how in my day, we got our sushi at Harris Teeter and we liked it.]

by Half the Sins of Mankind posted

Michael Gerson's Mess of Bio- graphies and -ethics His latest WaPo column states, According to Hillary Clinton, the Bush administration has declared "open season on open inquiry." "When I am president," she promises, "scientific integrity will not be the exception; it will be the rule." The exceptions, in this case, are pretty exceptional: Elias Zerhouni, who has reformed the National

Wednesday, 07 May

00:00

new altlaw feature by Luis Villa's Blog posted

Altlaw, the restoring-caselaw-to-the-public-domain-where-it-belongs project I’ve been involved with on and off since last year, just got a new feature; it now parses the cases that are cited and shows them as sidebar links. It hasn’t propagated to all cases yet, but you can see an example here. (I stumbled across this by looking up that case for my exam tomorrow, rather than because anyone actually told me what was going on. Clearly I should be subscribed to the site’s news feed. :) Still needs some love, but it is great to see it getting there- impressive what can be done these days on a very serious shoestring.

Tuesday, 06 May

20:00

by Half the Sins of Mankind posted

Head-Spinning Bobby Jindal I have to admit that I haven't followed Gov. Jindal as closely as some have, so this comment from Debate Link commenter surprised me: Should Jindal get the nod, I think Catholic-baiting would be the easiest tact: this is a man who claims to have witnessed a demonic possession and participated in an exorcism (which, sets off crazy alarms for many varieties of

by Half the Sins of Mankind posted

Metaphorical Mortgage Mess If you don't want to wade through Prof. Coffee's book on Gatekeepers, this NYT magazine article provides a good Cliff's Notes. However, I was struck by the number of comparisons the author included, presumably in order to make the subject of structured finance and securities regulation more comprehensible to lay readers. - The tiered structure of bonds, when faced by

Monday, 05 May

23:00

by Half the Sins of Mankind posted

Why Real Wonks Won't Be VP David Schraub dispels the claims of some liberal bloggers that Republicans are too fond of having Old White Men in office to want Louisiana Governor Piyush (Bobby) Jindal as Sen. McCain's vice-presidential nominee. He concludes, "Then, of course, there is the elephant in the room: that Jindal says he doesn't want the job. But of course, what potential VP candidate says

by Half the Sins of Mankind posted

Byron York Can Find Something New to Post About After the National Review columnist's long watch, the New York Times in a non-editorial context finally has quoted Rev. Wright as saying, "The government gives them drugs, builds bigger prisons, passes a three-strike law and then wants us to sing 'God Bless America.' No, no, no. God damn America." Who wants to bet against the proposition that if

20:00

by Half the Sins of Mankind posted

To Hell with These Polls, Let's Go to the Real Polls How did the NYTimes/CBS poll released yesterday show Obama as not being hurt by the latest flare-up of Rev. Wright, but the USAToday/ Gallup poll published today show just the reverse?

06:00

by Half the Sins of Mankind posted

Unjustified Materialism Normally I can justify buying something if it relates to effort rather than pure enjoyment. Novels, CDs and DVDs are things I generally get used, and often borrow rather than buy; I buy an iTune perhaps once a month, and go to the movies at most five times a year. On the other hand, I'll spend freely on books related to a field in which I might want to write, exercise

Friday, 02 May

20:00

by Half the Sins of Mankind posted

Dork Date This makes me wish for a temporary adjustment in relationship and geographical status so I could take advantage.

by Half the Sins of Mankind posted

Jonah Goldberg's Good History and Bizarre Conclusion I'm glad to see Jonah Goldberg giving a fairly accurate history of the infamous Tuskegee Study, in which researchers watched the progression of syphilis in African-American men while claiming that they were treating these subjects as patients. Unfortunately, in order to tie it into his finally-published book's theme about the overriding

Thursday, 01 May

02:00

by Half the Sins of Mankind posted

God Is an Evil Bastard For those who believe in intelligent design.

00:00

my blog: the Q&A for law firms and other interested parties by Luis Villa's Blog posted

Blogging About

the executive summary:

Nutshell: if you’re a law firm considering hiring me, and you stumble across this blog, please don’t get nervous. Instead, talk to me, and/or read the rest of this post. I’m eager to explain why I blog, and why I think it may make me a better lawyer and a good addition to your firm.

[Image by Hugh Macleod of Gaping Void fame; used with permission under the Creative Commons BY-NC-ND 1.0 license. For more on why Hugh licenses his images this way, see here.]

the full story:

Why are you writing this post now, about this topic?

Yesterday I finally got the interview question I’d been dreading/looking forward to: “So, you have a blog…” The interview was a little rushed, so we didn’t get to discuss it much, but they seemed to think it was interesting and a potential positive.

Not all firms who find this blog are going to be so forward-thinking, of course, and some will be legitimately nervous about finding that a candidate is so far outside the expected norm. I thought I’d write this Q&A to demystify the blog and explain why it shouldn’t worry (and might even excite) them.

What is a Q&A, anyway?

A Q&A is a blog post format I borrowed from my friend Steven O’Grady, an analyst at Redmonk. Basically, it is exactly what it says it is on the label- a question and answer format. I’ve found that it can be a useful way of clearly communicating information when you anticipate a lot of questions about a specific issue- which is exactly the situation here.

So why do you blog?

There are a lot of reasons, some of which are more important than others on any given day. Among them:

  • I want to follow the advice that I gave the Wall Street Journal: the best way to control your online identity is to create positive information about yourself. (It works- not only is this blog the top search result for my full name, it was for a long time the first search result for “luis”.)
  • When I started blogging, it was an important part of my job description; it helped me communicate with partners and with the volunteers who I used to coordinate. This is no longer true, of course, but once you’re in the habit it is hard to break.
  • I have lots of friends scattered all over the world who read blogs, and so my blog is an easy way to keep them up to date on my life. (And even my mom reads it now. Dad is still resisting.)
  • I like writing in an informal but coherent manner, and getting a chance to clarify and discipline my thoughts by writing about them. I didn’t get much chance to do that in my prior life as a programmer and manager, and I certainly don’t get much of a chance to do that in law school, so this is an outlet.
  • Frankly, because occasionally other people post things like this. It never hurts to have your ego boosted from time to time, and blogging gives other people the opportunity to do that ;)

What do you blog about?

A mix of things- some technology, some law, some in the overlap of law and technology, and quite a bit of personal information- anecdotes about concerts I’ve been to, that sort of thing.

Who reads it?

My logs suggest that about fifteen to twenty thousand people read the average post on my blog. While I can’t know for certain who they all are, and the numbers are imperfect, most of them are probably technologists and engineers of various stripes who are familiar with my work in a previous life, and who remain interested in my experience as a technologist moving into a new field, as well as my occasional digressions back into technology. Most of these probably don’t read the blog directly, but rather through various news sites (called ‘planets‘) which I’m syndicated onto.

A smaller number are classmates and other law students (some posts are syndicated into facebook), and at least a handful are practicing lawyers who specialize in technology issues. (At least one GC of a very large technology company has emailed me thanking me for my posts on the new General Public License and letting me know that he’d circulated them to his executive team.)

How do you find the time?

Once you’re in the habit, you can make time. It doesn’t always happen, of course- I’m sure an analysis of my posts over the past year would show that they dropped to nearly nothing during exams. But even then I can sneak in the occasional mental health post, and you’d be surprised how much you can write between 2 and 3am (most of this post, for example.)

Do you think you’ll find the time to continue once you enter the legal industry?

Now that is a very good question. I’m really not sure. I’d like to, because I’d like to think that some of my readers will be starting their own companies in the future and hence they’ll be future potential clients, and (obviously) because I enjoy doing it.

But I’m also a realist- the first few years at a firm, even more so than law school, have a reputation for stripping away your spare time. As one interviewer told me the other day, ‘when I get home, the only technology I want to use is my remote control.’ So… ‘maybe.’

It may also continue as a very different beast than it is now- probably more constrained in the topics covered (because of confidentiality and conflicts) and perhaps more constrained in the volume I can write.

Are you crazy? Lawyers don’t blog!

I don’t think I’m too crazy- lots of tech lawyers are blogging these days, so it isn’t completely unusual like it might have been even a few years ago. Certainly some of the lawyers whose careers I’d most like to emulate (like Mark Radcliffe of DLA Piper and Mike Dillon of Sun Microsystems) are now starting to do it, albeit in low volume. Of course they have the advantage of being very established and very senior, which I obviously don’t, but I’m working on that :)

Aren’t you scared that you’ll say something that will offend someone, and it will cost you a job or otherwise jeopardize your well-being?

Frankly? Yes, a little bit. As a result, I know I’ve self-censored some posts since I started school, and there are other posts which I did not self-censor, but that I constantly worry I should have. On the whole, though, I think the benefits outweigh the risks- I’m not exactly a radical in most senses of the word, so the risks aren’t too high, and I hope that most firms will look at my resume and realize that I’m a professional, and know how to constrain and modify my behavior when necessary. If the firm is so risk averse that it still troubles them, well, then, we should talk.

On the whole, are you glad you blog?

Absolutely. It isn’t a magical cure-all, and it might not be something I always have the option of doing, but I enjoy it right now, and I hope it is something that I’ll be able to continue to use to enrich my private and professional life for a long time.

[I'm going to leave this pegged to the top of my blog until interview/offer season is over; apologies to anyone who reads the blog the normal way for having to skip over it to get to my regular posts.]

Wednesday, 30 April

07:00

by Half the Sins of Mankind posted

Homeland as a Strange Land Weird news from the Houston Chronicle: Nazi cheerleaders Predictable headline

05:00

by Half the Sins of Mankind posted

Self-Fulfilling Prophecies If Daniel Pipes doesn't want Muslims in America to be segregated and balkanized as they are in Europe, a "battle" to stop Muslim citizens from entering American public life is an odd way to go about that goal.

Tuesday, 29 April

19:00

by Half the Sins of Mankind posted

They Really Are Becoming McCainiacs An interesting aspect of the spectacle of Republicans' lining up behind McCain is that it highlights the conservative principles that are disposable. Most Republicans are hostile to McCain's campaign finance reform measures, supposedly because they advantage incumbents and reduce the ability of fresh faces to mount a challenge, but now some conservatives

04:00

by Half the Sins of Mankind posted

Fitzgerald (D), Hemingway (R) One of the more famous bitch-slaps in American literary history is Ernest Hemingway's at F. Scott Fitzgerald in The Snows of Kilimanjaro: The rich were dull and they drank too much, or they played too much backgammon. They were dull and they were repetitious. He remembered poor Scott Fitzgerald and his romantic awe of them and how he had started a story once that

Monday, 28 April

04:00

by Half the Sins of Mankind posted

If He Doesn't Still Have the Media, He Has the Mayor Sen. McCain's recent fund raiser in Alabama got a discount rate on renting the space, as well as free prison labor. His campaign was given a discount of about 80 percent off the standard booking rate for Rosewood Hall. In September, Jefferson County Democrats rented the same facility and were charged the full rate. The McCain campaign was

Sunday, 27 April

14:00

sometimes a number hits you like a baseball bat to the head by Luis Villa's Blog posted

Televisions from days gone by

Televisions from days gone by by Neil Anderson. License:

Clay Shirky on how small wikipedia is, relative to the way we’ve spent our culture’s free time for the past fifty years:

So if you take Wikipedia as a kind of unit, all of Wikipedia, the whole project–every page, every edit, every talk page, every line of code, in every language that Wikipedia exists in–that represents something like the cumulation of 100 million hours of human thought. I worked this out with Martin Wattenberg at IBM; it’s a back-of-the-envelope calculation, but it’s the right order of magnitude, about 100 million hours of thought.

And television watching? Two hundred billion hours, in the U.S. alone, every year. Put another way, now that we have a unit, that’s 2,000 Wikipedia projects a year spent watching television. Or put still another way, in the U.S., we spend 100 million hours every weekend, just watching the ads. This is a pretty big surplus. People asking, “Where do they find the time?” when they’re looking at things like Wikipedia don’t understand how tiny that entire project is, as a carve-out of this asset that’s finally being dragged into what Tim calls an architecture of participation.

The whole thing is worth reading, but that particular bit just jumped out at me like a lightning bolt.

On that note, back to my cave to work on passing Corporations and E-Commerce exams.

Wednesday, 23 April

18:00

RHEL-izing Wikipedia by Luis Villa's Blog posted

I’ve been waiting for this. (It isn’t the first time; see wikitravel, but it appears to be a higher-profile publisher.) It is obvious that to some people and institutions, stable and vetted is good. It is true in software, and in specific areas (textbooks, guidebooks, possibly encyclopedias) it is probably true in written books as well, so it is only a matter of time before this model (take unpolished, cutting edge community version and turn it into something ‘enterprise-y’) becomes relevant in publishing too.

Now, hopefully wikitravel has an Istanbul book before the summer…

02:00

by Half the Sins of Mankind posted

Om Nom Nom The right bite of a good mango is like sunlight in your mouth. Direct sunlight -- no dawning of gradual flavor, but an immediate juicy rush. I carried three mangoes from Philadelphia to New York to Chicago to Decatur to Chicago to New York in the past week. The friends with whom I stayed in Philadelphia were puzzled by my purchase, knowing that it would have to make that migration

Tuesday, 22 April

19:00

by Half the Sins of Mankind posted

Weird Interpretation of McCain-Feingold? From the Virginia ACLU: Botetourt County Promises to Repeal Ordinance Placing Time Limits on Campaign Signs. County officials accede to ACLU demands; will not enforce existing ordinance while revisions are considered Botetourt County, VA – Botetourt County Administrator Gerald Burgess has informed the American Civil Liberties Union of Virginia that a

by Half the Sins of Mankind posted

What an Automatic Feed Showed Me Yesterday's post, on how Ayers's efforts to help Obama win a state senate seat indicate more about the degree to which Obama is a Chicago politician than any tolerance for radical and violent leftism, got picked up by an aggregator site called Rezkorama. The left side pulls posts that mention Rezko; the right side pulls news stories. At the moment, the right side

03:00

by Half the Sins of Mankind posted

Immigrant Identification I know consciously that Sen. Obama is not an immigrant to the U.S. (and thus is constitutionally able to become president), yet somehow I tend to think of him as having an idealized immigrant's story: as being an outsider who was pushed toward academic success by his parents and extended family, who was able to use scholarships to obtain an excellent education and rise

00:00

by Half the Sins of Mankind posted

In an Absolut War From a TNR book review: He begins with the Mexican-American War, which has been attracting much-needed scholarly attention these days, and shows that American soldiers, especially the volunteers, engaged in such widespread and heinous depredations that their own officers bitterly denounced them. "Our militia and volunteers," General Winfield Scott told the secretary of war in

by Half the Sins of Mankind posted

Chicago Politician Last year, Obama opponents were predicting that he'd get brought down by his Chicago association with Tony Rezko. Rezko's prosecutors even have a big Republican fundraiser, Stuart Levine, as a star witness, although Levine's credibility is damaged by his alleged past drug use and his plea bargain agreement for extortion while managing Illinois teachers' pensions. What Levine

Monday, 21 April

20:00

by Half the Sins of Mankind posted

And About That "Anti-Immigration" Vote Kristol assumes that Obama's vote in 2006 for the Secure Fence Act was based in anti-immigrant sentiment, but of course security and immigration, as much as the Tancredo types have tried to conflate them, are quite different issues. One can put up a fence in order to secure our border against unauthorized entrants, while still welcoming an unlimited number

05:00

by Half the Sins of Mankind posted

Mirror Image of Kristol I cannot stop reading William Kristol's NYTimes campaign against Obama, because Kristol is actually a good observer. Case in point: in a column where he adds Obama's comment about clinging to religion and anti-trade sentiment to the data for a running hypothesis that Obama is horribly arrogant, Kristol notes, "And it's a particularly odd claim for Barack Obama to make.

Thursday, 17 April

03:00

new headshot by Luis Villa's Blog posted

I got interviewed last week for a linux.com piece. I also got LASIK over spring break, after 22 years of glasses. (It’s been a month without them and I’m still pretty psyched.) The result of the above two facts is a new headshot, in best chinposin style:

Next necessary step: new hackergotchi, possibly from this picture (almost certainly not from the chinposin one.)

(And yes, I’ll get one that is slightly less swarmy/businessy at some point. If that’s what you need, you probably still want this one. :)

Monday, 14 April

07:00

by Half the Sins of Mankind posted

Ooh, Denunciation Time! Republicans are so defensive about the stuff that comes out of their mouths, they've recently taken to seizing on any stupid or just poorly phrased remark from liberals and demanding that Congress -- either in an official resolution, or members one-by-one -- denounce it. The occasion with which people are most familiar probably was MoveOn's Petraeus/ Betray Us

Friday, 11 April

18:00

second worst dialog I saw during a recent Ubuntu upgrade by Luis Villa's Blog posted

This dialog gets points for being graphical, and loses many, many, many points for presenting no information that any reasonable user could possibly get any use from unless they already previously understand (1) what FUSE is (2) how to get FUSE plugins (3) who the ‘first user’ is (4) what the ‘fuse group’ is and (5) how to add users to the ‘fuse group.’ And if you know all those things, you didn’t need the dialog, so kudos for being both useless and intimidating.

The worst dialog was actually a terminal wrapped in the upgrader GUI which stalled my entire upgrade in order to ask me what my terminal encoding was, helpfully presenting a list of 28 possible encodings, of which UTF-8 was 27th and the default was some obscure encoding I’d never previously heard of. (The other times the upgrader stalled the upgrade to ask for input it told me I’d modified config files I’d never previously heard of, much less modified, but at least those had basically the same useful-ish debian config file dialog I’ve been used to for ages.)

Linux has come a long way (the upgrader helpfully offered to do a partial upgrade instead of complaining and dying like previous debian/ubuntu upgrades), but still has a long way to go too.

(These weren’t the only problems I saw; Gerv has a good list of some of the other ones, though I didn’t see all of the ones he did.)

Wednesday, 09 April

16:00

I love the smell of a fascist state in the morning by Luis Villa's Blog posted

Suspending the protection of the laws in favor of executive power: it makes the trains run on time gets fences built on time.

Brought to you by the people who decided we didn’t need that pesky fourth amendment anyway.

(Why yes, this did provoke me to finally renew my ACLU membership. Read more about what they are doing to make us safe and free here.)

Monday, 07 April

16:00

good news/bad news, journal edition by Luis Villa's Blog posted

Good news: I’ve been selected as Editor in Chief of the Columbia Science and Technology Law Review, 2008-2009 edition. I’m excited to be able to work with a great team to release a solid issue of the journal, and also to spend some time thinking about where journals might go next.

Bad news: Lots of work to be done, and big questions like these to be dealt with. I can already feel my hair getting greyer. ;)

Overall: very excited, I just hope I get to sleep some next year. :)

[This happened a couple weeks ago; I keep forgetting to blog it for the record, but with journal recruiting starting in earnest this week, it was hard to forget.]

Sunday, 24 February

Wednesday, 06 February

Thursday, 06 September

01:00

by Crouching Hamster posted

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.)

by Crouching Hamster posted

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

by Crouching Hamster posted

To be avoided: Bravo (the qualuudes are complimentary!) Pizza on 5th, near 20th.

by Crouching Hamster posted

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!]

by Crouching Hamster posted

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,

by Crouching Hamster posted

The old crack: sea salt & vinegar potato chips The new crack: sea salt and cracked black pepper potato chips (enjoyed in moderation)

by Crouching Hamster posted

The air in North Carolina is unbelievably fresh. Of course, you can't smell it if you live there. But a few weekends ago, I was fortunate enough to inhale it in big gulps as a visitor. And what is strange is that right before leaving for North Carolina, I remarked on the smell of the city, especially in winter, and especially at 23rd and 6th Avenue. It's the exhaust of the traffic, it's the

by Crouching Hamster posted

Dating, Dining, and New York (redux, circa 2006) 1. He suggested we go to a neighborhood taco stand. We traded up, and I was surprised to see him order a slice of deep dish pizza at Joe's. It seemed almost antithetical. 2. Dinner and a souffle at a German restaurant, a block from the Holland Tunnel. If you wanted instead to have dinner and an affair, you certainly could. 3. A

by Crouching Hamster posted

I walked into the wine bar and scanned the scene, seeing only one head with gray hair. "Well, that can't be him. He must be waiting outside." But there were no gentlemen with gray hair outside. It was a blind date, so, of course, anything goes. "Well, if that is him ... ah, OK, that is him. I'm just going to go up to him and introduce myself and get it over with." He was stunning. And I

by Crouching Hamster posted

"Do you know which iPod you want?" "No. That's why you are here. I thought you could help me decide." I suggested the 80GB. He got the 30GB. He used part of the difference in price to buy a car adapter for his Volvo. And then we walked out onto the street, and I thought that was the last I'd see of the ambassador for awhile. His position here ended, and he starts a new post back home.

by Crouching Hamster posted

Since moving here I've been having many of those, what I call, "raw" moments of life. They used to happen to me about once every five or six years. But lately, they've been happening once every six weeks. And now other people are noticing that they are happening. And you never know whether you should cherish them, or use all your energy and hang on as tight as you can, just to be sure they're

by Crouching Hamster posted

Another fantastic ad campaign. No, Audrey's not selling out posthumously. The Gap is giving money to her Children's Fund in exchange for the use of her image from, "Funny Face."

by Crouching Hamster posted

Crouching Hamster's Unofficial List of Signs You're Not Dealing with a New Yorker: 1. He misses owning a car. 2. He wears shorts, gym socks, and sneakers out on a date. 3. He loves sports. 4. He votes Republican. 5. He owns a KitchenAid mixmaster. 6. Harlem scares him. 7. He doesn't believe in takeout. 8. He doesn't ride the subway. 9. He eats dinner at 6:00 pm. 10. He has an

by Crouching Hamster posted

Holla back. (I still would buy a Mac.)

by Crouching Hamster posted

Those Googlers! Particularly the one who is affiliated with the Eastern Lithuanian Telepathy Enterprises in Hungary? He found a HORRIBLE picture of my identical twin on the Internets and sent it to me! Crouching Gerbil, my ass. Quite brilliant, that one. Then again, I'm easy to please. In other news around the world, it seems I'm a hummus snob. Tonight's dinner, hummus and whole wheat

by Crouching Hamster posted

Overachieving Hamster.

by Crouching Hamster posted

We started in the middle of the Brooklyn Bridge. We were of all sizes, colors, shapes, and ages, coming together for a night of heat and hedonsim: One Night of Fire, a summer party hosted by Complacent Nation.

by Crouching Hamster posted

Frequently I ask myself, "Well - How did I get here?" And in fact, last week, just as I was looking around what felt like a movie set and posing the question again, I heard David Byrne on the stereo asking the same thing. This evening I was the guest of the Italian diplomat and his two teenage daughters for a Fiona Apple concert in Central Park. For each date we have, I learn a phrase in

by Crouching Hamster posted

Piercing the Corporate Veil: Inside the Thievery Corporation Tour, Summer, 2006, as posted by Eddie Shanken. Dr. Shankenstein (He loves that! He really does!) will play himself in the upcoming, "Mostly Famous." P.S. Note Track 10 on "Versions," the Thievery Corporation's latest CD.

by Crouching Hamster posted

I have a *real* date tomorrow night at 230 with an Italian diplomat. (I don't think this is going to go anywhere except Rome.) I'm just trying to get out and have fun before my assets depreciate, as my friend, Jac, tells me they will. I wasn't even aware that this type of computation was going on inside my body. And by gum, let's hope it's straight line depreciation. Because after that,

by Crouching Hamster posted

Check out the current Eyebeam (link is always on the sidebar). My buddy, t, is a guest reblogger.

by Crouching Hamster posted

(Now that I've sucessfully gotten rid of the lurkers ...) How many Googlers does it take to install an air conditioner? None! (Well, one, if installed "Kramer-style.") How many lawyers does it take to install an air conditioner? One! (That's assuming there really are such things as "sheet metal screws," and I get over my fear of power drills.) (How many Googlers does it take to uninstall

by Crouching Hamster posted

From today's New York Times: Countdown to a Play Written to Order

by Crouching Hamster posted

Holy fucking crap! In a good way! I just saw a Cingular commercial featuring the music of the ultra pop Persephone's Bees. "City of Love" to be exact. This band was the first band I heard in San Francisco. They played at Cafe du Nord in September, 2000, the same weekend I was in town. I immediately loved their retro mod sound, and especially enjoyed Angelina's Russian accent. When I got

Tuesday, 21 August

Tuesday, 17 July

Thursday, 31 May

Monday, 16 April

14:00

Here Comes the Fat Lady by Blakely Blog posted

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

CLS Sentencing Symposium - Considerations at Sentencing – What Factors are Relevant and Who Should Decide? by Blakely Blog posted

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.

CLS Sentencing Panel – Prosecutorial Discretion and Its Challenges by Blakely Blog posted

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.

CLS Sentencing Symposium - Judge Lynch's Opening Remarks by Blakely Blog posted

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.

State Sentencing Symposium at Columbia Law School by Blakely Blog posted

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.

Tuesday Morning News by Blakely Blog posted

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.

Morning News Stories by Blakely Blog posted

Findlaw.com columnist Mark Allenbaugh writes, "The Supreme Court's New Blockbuster U.S. Sentencing Guidelines Decision: A Clear Sixth Amendment Ruling, with an Invitation to Congress to Create a Better Remedy."

Salon.com cleverly pokes, "Supreme Court to Congress: Here's what you really meant." Salon asked the current chair of the American Bar Association's committee on sentencing, Jim Felman, a practicing defense attorney in Tampa, Fla., to shed some light on the surprising Supreme Court news.

The Washington Post editorializes, "The Court on Sentencing."

Oregonians will find the following article interesting, "A better way to set prison time - Hit to federal sentencing laws is a reminder to Oregon that the state also must update its court practices."

More News Stories by Blakely Blog posted

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.

Lots and Lots of News Stories by Blakely Blog posted

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.

Late Nite Thoughts by Blakely Blog posted

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.

Guidelines Suffer Technical Knockout - May Live To See Another Day by Blakely Blog posted

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...

5 hours and counting? by Blakely Blog posted

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.

No Decision Today by Blakely Blog posted

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.

More Exciting News About the Columbia Sentencing Symposium by Blakely Blog posted

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/.

I've run out of clever blog posts to communicate that we still don't have a Booker and Fanfan decision by Blakely Blog posted

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.

The waiting is the hardest part by Blakely Blog posted

No Booker/Fanfan decision today. Next possible opinion date: Dec. 13th.

Still No Decision from the SCOTUS by Blakely Blog posted

The next likely dates for an opinion are December 7, 8 and 13th.

State Sentencing Symposium at Columbia Law School by Blakely Blog posted

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 S