Osler's Razor

The last few months have been darn exciting, with a lot of stuff happening. On top of it, I love the two classes I'm teaching this quarter. Still, I need to keep moving on to new things, and in that vein I have some interesting (I hope) new work in the hopper.

Basically, what is in the dock are two companion pieces, both of which propose either scrapping or seriously revising the federal sentencing guidelines. However, they come to this conclusion from different directions.

The first is titled Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip. You can download it here. (Just click on "download" at the top of that page, then click on "SSRN" to start the download). I finished this one at the end of last year, and it will be appearing in the BYU Law Review next month. In short, it argues that the sentencing guidelines have so many conflicting policy goals that they effectively have none at all. If we want to have principled sentencing, we need to start over with fewer and simpler policy goals.

The more recent of the pair I just finished on Friday of last week. It is entitled Seeking Justice Below the Guidelines: Sentencing As An Expression of Natural Law. You can download that one here. (same drill-- click "download," then "SSRN"). This one analyzes judges rather than legislation. Starting with the observation that in those cases where judges don't follow the guidelines, they overwhelmingly go under rather than over the range, I argue that this reflects a natural law impulse towards justice (or, perhaps, mercy). Either way, it is inexorable, and will cause judges to subvert those guidelines so long as they fail to comport with that natural law impulse. Thus, in the interest of honest in sentencing we must (you guessed it) blow up the guidelines and start over, because subversion by insiders is inconsistent with the ideals of a free-speech democracy.

Do you think a law review will want to latch onto that one? Hopefully, we will find out soon...