Tuesday, October 06, 2009
What I will be watching closely...
Next month, the Supreme Court will take up the cases of Graham and Sullivan, which involve the constitutionality of sentencing children to life in prison without the possibility of parole. As some of you may recall, I testified in Congress on this issue earlier this year.
Honestly, I would much rather that this issue be dealt with through the legislative than the judicial branch. I worry when what is "Constitutional" is defined to a matter of weeks, which is what is likely to happen here-- that is, the Court may decide that those under 16 cannot be subject to such a sentence, while those above that age may be sentenced to life without parole. I have less of a problem with a legislature creating such bright lines, given that they do so necessarily (for example, in defining the age of majority). I think that there is much more intellectual honesty in either not taking on the question or striking down the sentence for all juveniles, but I fear that the outcome will be somewhere in between.
Honestly, I would much rather that this issue be dealt with through the legislative than the judicial branch. I worry when what is "Constitutional" is defined to a matter of weeks, which is what is likely to happen here-- that is, the Court may decide that those under 16 cannot be subject to such a sentence, while those above that age may be sentenced to life without parole. I have less of a problem with a legislature creating such bright lines, given that they do so necessarily (for example, in defining the age of majority). I think that there is much more intellectual honesty in either not taking on the question or striking down the sentence for all juveniles, but I fear that the outcome will be somewhere in between.
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I'll be watching the Bilski case, which deals with the patentability of business methods. I personally think that business methods are NOT inventions and should not be patentable, but others disagree. This decision will have a large impact on my field of law and on software vendors and developers.
The first time I read IPLawguy's comment I thought it said "Bikini case" and not "Bilski case." Upon further investigation I was obviously disappointed.
I was really looking forward to the bikini case...
I was really looking forward to the bikini case...
# posted by 
: 12:00 PM
: 12:00 PM
what's the second amendment case from the 7th cir that deals with incorporation against states? nra v chicago or something. it had easterbrook and posner on the panel. easterbrook, writing for a unanimous panel, found no incorporation...
I'm watching the Pottawattamie County v. McGhee case, which will determine whether prosecutors who fabricate evidence to obtain a conviction are absolutely immune from civil suit.
The Supreme Court took a trademark case a few years ago that sort of involved "Bikinis": Victoria's Secret v. Moseley. The Moseley's operated a sex shop called "Victor's Little Secret." Victoria's Secret lost and the law was subsequently changed.
Victoria's Secret v. Moseley, that is the kinda work I need to get involved in. All of the sudden, discovery actually sounds fun.
# posted by : 9:04 PM
: 9:04 PM
Just how in the world did Victoria's Secret lose?! Were the Angels not present for the argument? Did they actually have a lawyer answering questions from the justices rather than Heidi?!
# posted by : 11:04 PM
: 11:04 PM
By the way, lots of interesting cases in the way of criminal law this year that will actually impact my day-to-day decisions and the cases that have already been filed.
In these types of cases, I think you will see a bigger majority since Sotomayor was a prosecutor for quite some time and has tended to, something like 95% of the time, go with the state while on the Fed bench.
Any chance that she will be viewed negatively and be considered Obama's version of Souter because of a state bias in her rulings?
In these types of cases, I think you will see a bigger majority since Sotomayor was a prosecutor for quite some time and has tended to, something like 95% of the time, go with the state while on the Fed bench.
Any chance that she will be viewed negatively and be considered Obama's version of Souter because of a state bias in her rulings?
# posted by : 11:11 PM
: 11:11 PM
ADA, I am pretty certain you're Tom, anything new with the screw up Dallas drug cops? I don't mean the division as a whole, I'm specifically referring to the ones that can't even testify.
-Brennan
-Brennan
# posted by : 11:41 PM
: 11:41 PM
Dallas, a pro-state mindset from the bench isn't necessarily in conflict with liberal/leftist politics. I happen to be both a leftist and an ADA, so there's that. I think most people, right or left, will be happy with Sotomayor. Except racists and sexists.
On the other hand, what's a pro-state bias supposed to look like with regard to whether we can sentence juveniles to life without parole?
On the other hand, what's a pro-state bias supposed to look like with regard to whether we can sentence juveniles to life without parole?
Yes, the only possible way you could disagree with our new justice is if you're either a racist or sexist or both. It would be impossible to just think she is wrong about something without some sinister motive.
# posted by : 10:49 AM
: 10:49 AM
I appreciate the judicial oversight of sentence ranges. Legislatures tend to be far too reactionary when passing laws. We find too many politicians boosting campaign slogans by jumping on the newest criminal law fad that is spurred by some random case.
This type of reactionary government got us the 100:1 ratio and gets us sentences that are too harsh for sex offender registration charges. For example, I routinely see defendants, primarily men, go to prison for failing to carry a driver's license that says "Sex Offender" (ignoring the fact that he is actually registered properly and has the DL at home) when he hasn't been convicted of any crime for 20+ years and was found guilty of a non-contact misdemeanor offense that now requires him to register (also ignoring the fact that registration wasn't required when he pleaded guilty).
The judiciary doesn't react the same way, but applies logic and centuries old precedent.
This type of reactionary government got us the 100:1 ratio and gets us sentences that are too harsh for sex offender registration charges. For example, I routinely see defendants, primarily men, go to prison for failing to carry a driver's license that says "Sex Offender" (ignoring the fact that he is actually registered properly and has the DL at home) when he hasn't been convicted of any crime for 20+ years and was found guilty of a non-contact misdemeanor offense that now requires him to register (also ignoring the fact that registration wasn't required when he pleaded guilty).
The judiciary doesn't react the same way, but applies logic and centuries old precedent.
It's not the fact that she has a pro-state mindset that I would expect to upset "the left", rather the fact that the mindset will cause her to vote with the "conservative" majority on almost all of the criminal cases.
Meaning that she would be voting with Scalia, Thomas, Roberts, Alito, on about half of the cases at the Court. I'm thinking that might actually upset the guys on MSNBC. Just a thought.
Meaning that she would be voting with Scalia, Thomas, Roberts, Alito, on about half of the cases at the Court. I'm thinking that might actually upset the guys on MSNBC. Just a thought.
# posted by : 3:39 PM
: 3:39 PM
The same conservative, pro-state majority that decided Gant and the school strip search case this term? The same Scalia-dominated faction that sides with defendants on nearly every confrontation issue raised before it?
If MSNBC pundits get their knickers in wads because she sides with politically conservative jurists, they don't really understand the law. I think Sotomayor has a fairly even temperment as a justice; she's certainly not radically to the left or the right. I see her as another Kennedy, more of a middle-of-the-road-er.
Which is fine, even preferable, in a justice. I expect advocacy and radicalism amongst my legislators. I expect restrait and neutrality among my judges.
If MSNBC pundits get their knickers in wads because she sides with politically conservative jurists, they don't really understand the law. I think Sotomayor has a fairly even temperment as a justice; she's certainly not radically to the left or the right. I see her as another Kennedy, more of a middle-of-the-road-er.
Which is fine, even preferable, in a justice. I expect advocacy and radicalism amongst my legislators. I expect restrait and neutrality among my judges.
See, this is why I like Intellectual Property law, as opposed to criminal law. You people have serious issues to worry about. Me, as part of my job I have sampled fancy seafood, looked at lingerie, bought high end cowboy boots at a discount, drink liquor, tour pretzel factories and had a number of other cool adventures.
I'm not sure I could be trusted to argue about philosophical issues that involve freedom and liberty. Or that I could do it for a living.
I'm not sure I could be trusted to argue about philosophical issues that involve freedom and liberty. Or that I could do it for a living.
Actually, IPLG, you would be an excellent criminal attorney, and it would let you try cases, something I think you would be very good at.
Yeah, IPLG, don't forget the mad money criminal attorneys make... the fast cars, fancy wines, beautiful women throwing themselves at you in adoration... this is the life.
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