Osler's Razor

I can look back, and be glad about all that I took on-- teaching and writing two Supreme Court amicus briefs at the same time, as part of my pro bono sentencing work. Those briefs are now available on-line. In getting everything done, I relied on the great work done by four Baylor students who helped me this winter: Tyler Atkinson, Katherine Holstead, Landon Ramsey, Nathan Winkler, and Warren Wise. Links are provided below (click on the case caption):

1) United States v. O'Brien and Burgess

One of just three amicus briefs in what might end up as the most important criminal case this term, I wrote this one for the National Association of Federal Defenders. Previously, I wrote their brief in Kimbrough, and as always they were a pleasure to work with. The Defenders, of course, include some of the finest appellate advocates in the country, so it is both an honor to be asked to write for them, and a special challenge to meet the standards of experts who understand the issues so well.

This case is especially significant because it carries the possibility of fundamentally changing the nature of mandatory minimum sentences, by requiring that they be supported by jury findings rather than fact findings by a judge. My argument is that mandatory minimums suffer the same constitutional defect as the mandatory guideline systems stricken by the Court in Blakely and Booker-- the sentencing range is altered based on facts determined without a jury.

Oral Argument will be held on February 23, under an expedited schedule.

2) Dillon v. United States

This brief was prepared on behalf of the Washington Legal Foundation, and was the only amicus brief submitted to the Supreme Court. I wrote this one with Prof. Rory Ryan and his sister Elizabeth Ryan, and many (perhaps all?) of the best ideas in the brief were theirs. As their web site makes clear, the WLF "champions free market principles, limited and accountable government, individual rights, business civil liberties, and legal ethics." Like the Federal Defenders, they have far more experience than I do in Supreme Court litigation, and it was a pleasure to join the roster of people who have written on their behalf-- they were wonderful to work with.

Dillon involves the resentencing of people who are eligible for a lower sentence when the Sentencing Commission changes the guidelines. The Commission had announced a rule that at resentencing a court cannot consider anything other than the changed guideline. We argued that this was wrong in several respects: That it violated controlling statutes, that it allowed an administrative body to define the jurisdiction of federal courts, and that it ran against a long tradition of individualized consideration at sentencing.

This brief, because it presents a unique viewpoint, has a chance of being determinative in the case. Argument is set for March 30.

I love the idea that I can write these things at the kitchen table, and that they end up where they do-- in the hands of the Justices and their clerks, with the chance (and sometimes only that) of changing the law for the better. What a great country, where that is possible!