The Volokh Conspiracy

So argues this op-ed piece in the L.A. Times.  Here’s a snippet of the argument:

Remember the old joke about 20,000 lawyers at the bottom of the sea being “a good start”? Well, in an interesting twist, thousands of lawyers now find themselves drowning in the unemployment line as the legal sector is being badly saturated with attorneys.

Part of the problem can be traced to the American Bar Assn., which continues to allow unneeded new schools to open and refuses to properly regulate the schools, many of which release numbers that paint an overly rosy picture of employment prospects for their recent graduates. There is a finite number of jobs for lawyers, and this continual flood of graduates only suppresses wages. Because the ABA has repeatedly signaled its unwillingness to adapt to this changing reality, the federal government should consider taking steps to stop the rapid flow of attorneys into a marketplace that cannot sustain them.

Perhaps, as a law professor, I’m biased on this.  But I don’t see a general market failure requiring federal government action, although perhaps (as the author suggests) regulation of self-reported data on job placement should be considered.   The author also contends that the ABA has a conflict of interest in regulating law schools.  I agree — but not because (as the author maintains) the ABA is allowing too many law schools.  If there are too many law schools, prospective law students can surely figure that out.  The problem with ABA regulation is that it seems to get diverted from focusing on educational issues to extraneous, political issues. 

Slate has this interesting analysis of the question.

Over at NRO, Ed Whelan has been following some bizarre manuevering by the federal district court judge in the Northern District of California who apparently is trying to have a televised “show trial” regarding Proposition 8. 

Without getting into the merits of Proposition 8 or the legal challenges to it, I agree with Whelan that it seems highly unusual for a judge to authorize televised proceedings for this particular case as part of some new “pilot” project to see how televised proceedings work.  Surely if there were going to be a test run of a new idea, it should be in a more run-of-the-mill case rather than this particular highly controversial one.    Moreover, it does appear that public comment process has been completely short-circuited.

The American Law Institute has decided to pull its model death penalty statute, as recounted in this New York Times article.  As Kent Scheidegger points out in this detailed post, the action was not  intended to be a statement by the ALI that the death penalty should be abolished.  Nonetheless, that appears to be the spin being put on the action by death penalty opponents. 

I found particularly interesting Berkeley Law Professor Franklin Zimring’s statement in the New York Times article that they ALI “were the only intellectually respectable support for the death penalty system in the United States.”  Apparently now if you support the death penalty in this country (as most Americans do), then you are not “intectually respectable.” 

Professor Doug Berman has an interesting take on the issue over at his Sentencing Blog.

Yesterday U.S. District Judge Patrick Schiltz of the District of Minnesota issued an interesting order regarding a restitution application in a child pornography case.   In his order, found here, Judge Schiltz chastises the government for failing to pursue restitution for child pornography cases in his district, even though Congress has made restitution mandatory in such cases.  Judge Schiltz wrote:

This Court has recently handled a number of other child-pornography cases in which the United States Probation Office has identified victims who are seeking restitution.  Notwithstanding the strict mandates of § 2259, the government has also declined to pursue restitution in those cases. Given the clear Congressional mandate that those convicted of child pornography offenses pay restitution to their victims, the Court will no longer accept silence from the government when an identified victim of a child-pornography offense seeks restitution.  If the government declines to seek restitution, the government will have to give the Court some explanation for its decision.

The statute that Judge Schiltz cites, found here, directs district courts to order restitution for the “full amount of the victim’s losses.”  In this particular case, a young girl who was raped and had pictures of the crime taken seeks several million dollars in restitution to pay for counseling and other expenses resulting from the crime. 

The victim has sought these damages not only from the defendant convicted in this case in Minnesota but more broadly from every defendant convicted of viewing the images taken of her  against her will.   For instance, she sought such restitution in Texas.  There, a federal district court judge ruled that she could not trace her injuries specifically to the particular defendant convicted in that case.  She sought mandamus relief in the Fifth Circuit, which held in a recent opinion that the district judge was not “clearly and indisputably” wrong in declining to order restitution for the girl.  [Full disclosure: in the district court, I filed a brief on behalf of the National Crime Victims Law Institute supporting the restitution application.] 

The issue of restitution in child pornography cases is an interesting and important one that seems destined to ultimately go to the U.S. Supreme Court.  My own view is that Congress drafted a very broad restitution statute designed to give the maximum possible recovery to victims of child pornography.  Moreover, if any doubt existed about how to interpret this remedial statute, it should be resolved in favor of the innocent victims of these offenses rather than the criminals who continue to cause injury by illegally possessing the pictures in question.

D.C. Federal District Court Judge Ricardo Urbina has just dismissed all charges against several Blackwater guards, who were accused of voluntary manslaughter and various serious firearms offenses in connection with a September 16, 2007, shooting in Baghdad.  A copy of the opinion, which can be found here,  chastises the government for improper conduct:

In their zeal to bring charges against the defendant in this case, the prosecutors and investigators aggressively sought out statements the defendants had been compelled to make to government investigators in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government’s trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team on Garrity and Kastigar issues, that this course of action threatened the viability of  the prosecution. The government used the defendants’ compelled statements to guide its charging decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to obtain the indictment in this case. The government’s key witnesses immersed themselves in the defendants’ compelled statements, and the evidence adduced at the Kastigar hearing plainly demonstrated that these compelled statements shaped portions of the witnesses’ testimony to the indicting grand jury.2 The explanations offered by the prosecutors and investigators in an attempt to justify their actions and persuade the court that they did not use the defendants’ compelled testimony were all too often contradictory, unbelievable and lacking in credibility.

I worked on the case briefly, helping represent the defendants when they were arrested in Salt Lake City.  In my view, the charges should never have been filed.  The prosecutors made novel use of federal criminal statutes, including charging the contractors with heavy mandatory minimum sentences for use of firearms (i.e., machineguns) in the commission of a  crime of violence.  The dismissal is long overdue and, given the thoroughness of Judge Urbina’s opinion, seems unlikely to be overturned on appeal (or, for that matter, perhaps even unlikely to be appealed).

I recently argued that they should to the U.S. Sentencing Commission.   Currently the procedures at sentencing envision the parties arguing the various factors, but not a crime victim.  This approach reflects an outdated way of thinking about criminal procedure — that only the state and the defendant have legitimate interests in the outcome of a criminal case.

In my view, Congress has rejected this approach in passing the Crime Victims Rights Act (CVRA)  in 2004.  The Act promises crime victims that they will be treated with “fairness” through the process and, with regard to sentencing in particular, that they will have the right to be “reasonably heard” at sentencing proceedings.  In passing the CVRA, Congress intended “to afford [victims] due process” in the federal criminal justice system.   Victims are not treated fairly and reasonably heard on sentencing issues unless they are given a chance to speak to federal sentencing guidelines issues.  The federal sentencing guidelines, while becoming more and more “advisory” every day, are still the single most important factor in determining a federal sentence. 

I proposed to the Sentencing Commission that they amend one of their policy statements on sentencing procedues to specifically give victims rights in the process.  My proposed change to section 6A.1.3 is:

When any factor important to the sentencing determination is reasonably in dispute, the parties and any involved victim shall be given adequate opportunity to present information to the court regarding that factor. . . .

Such a change would allow a crime victim, for example, to present evidence regarding whether an assault was “aggravated” or “minor” and the nature of the injuries that resulted from the assault — important factors in applying the assault guideline. In my testimony, found here, I offered a specific example of a crime victim who, remarkably, was not allowed to be heard at sentencing on the nature of his own injuries from an assault!  There is no good policy argument for preventing a victim from providing such information to the trial judge and giving the judge highly useful information for crafting the appropriate sentence.

Some of the Sentencing Commissioners seemed receptive to my proposal.  I hope that the full Commission will move forward with it soon and, more generally, will adopt procedures tomore fully  integrate crime victims into the sentencing process.

Tomorrow, the University of Utah College of Law will host a symposium about Freedom from Religion.  Based on Professor Amos N. Guiora’s new book, Freedom from Religion: Rights and National Security (Oxford University Press, 2009), this Symposium will explore the limits of tolerance of religious extremism in five countries and its impact on the current terrorism threat our world faces. By drawing on varied perspectives and disciplines — religion, cognitive science, history, philosophy, and law — the panelists will challenge conventional wisdom by asking whether the threat of future terrorism might be lessened by government’s curtailing religious extremism.

The symposium will be held here at the College of Law in Salt Lake City at 8:30 to 11:00 a.m. mountain daylight time tomorrow, Friday, October 23.  It can also be viewed lived on line at dashboard.law.utah.edu/freedomfromreligion.  More information can be found here.

Participants include, in addition to Professor Guiora:

John C. LentzPastor & Head of Staff
Forest Hill Presbyterian Church

William E. DealSeverance Professor of the History of Religion
Case Western Reserve University

	Scott M. Matheson Jr. Professor of Law University of Utah
Terry S. KoganProfessor of Law University of Utah

The ABA Journal has this interesting thought attributed to Justice Scalia.  Asked to comment on whether the quality of advocacy before the U.S. Supreme Court was too low,  Justice Scalia is quoted as saying:

“I used to have just the opposite reaction.  I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

“I mean there’d be a … public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

“I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table, and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.”

Justice Scalia is at his provocative best here, forcing us to wonder whether our legal system now pervasively controls so many aspects of our society that too many of the best minds have to go into the profession.

Ed Whelan has this very interesting post on whether Judge Sotomayor’s public support for Obama’s election as President was unduly partisan. Indeed, Whelan suggests the Sotomayor may have violated the canons of judicial ethics requiring judges to maintain the appearance of impartiality.

I have to say that, when I was a federal judge, I certainly would have been reluctant to wade into the merits of what happened during a Presidential election to the extent that Judge Sotomayor did.

Update: Sorry for the broken link to Whelan’s post, which I just fixed.

Over at The Right Coast, USD law prof. Tom Smith has this interesting list of Judge Sotomayor’s 50 Most Important Opinions. As I understand it, the algorithm he uses to collect the most important opinions — called PreCYdent — determines which particular opinions have been most influential in the development of the law. Interestingly, the top three opinions on the list are all immigration opinions:

1. ZHANG v. GONZALES, 426 F.3d 540 (2d Cir. 2005)

2. LIN v. GONZALES, 445 F.3d 126 (2d Cir. 2006)

3. BRISSETT v. ASHCROFT, 363 F.3d 130 (2d Cir. 2004).

I think this suggests that court of appeals judges are likely to have the most influence in areas of high-volume appeals — like immigration appeals. Of course, if confirmed, Judge Sotomayor will have for more expansive opportunities to influence the development of the law!

My colleague Amos Guiora argues “yes” in this interesting article. Here is the nub of the argument:

President Barack Obama has stated that among his initial priorities as commander-in-chief is closing the United States detention facility in Guantanamo Bay. One of his first actions after taking office was to suspend all legal proceedings in Guantanamo so that

CIA Director Leon Panetta sent this message to CIA employees today. It directly rebuts claims from House Speaker Nancy Pelosi that the CIA provided misleading information to Congress:

There is a long tradition in Washington of making political hay out of our business. It predates my service with this great institution, and it will be around long after I

The Justice Department just suffered a huge loss up in federal court in Montana. The jury just returned not guilty verdicts on all counts as to all defendants in the W.R. Grace environmental prosecution, which alleged that the company and some of its top corporate officers had knowingly endangered the residents of Libby, Montana through release of asbestos. A summary of the arguments to the jury can be found here on this excellent blog run by the University of Montana School of Law.

Professor David Luban of Georgetown and my colleague Amos Guiora have this interesting exchange about Israel’s recent incursion into the Gaza strip.

Luban argues that the Gaza campaign violated both the jus ad bellum and jus in bello proportionality principles and that the Hamas civil administration were not lawful targets under Israel’s own interpretation of the law of armed conflict. Prof. Guiora argues that terrorism changes the landscape of armed conflict and requires a reconfiguration of international law. Under this reconfiguration, an entire terrorist organization may properly be targeted.

Prof. Luban’s article is entitled “Was the Gaza Campaign Legal;” Prof. Guiora’s is entitled “Proportionality ‘Re-Configured.’” Interesting reading.

The ABA Journal has this interesting article about how a law professor’s article for the New Jersey Law Journal resulted in an overturned jury verdict. A New Jersey appeals court ruled that the professor’s explanation of legal concepts to his fellow jurors had a tendency to influence the verdict.

The appellate court opinion, found here, overturned a trial court finding that the professor’s involvement was not uniquely important.

I disagree with the appellate court’s decision. Whenever a juror is selected to participate in a jury, he brings his own background along with him. The appellate court does not contend that the law professor was instructed not to use his legal background in participating in jury deliberations. Moreover, both sides decided not to use a peremptory strike to remove him. Having taken a calculated gamble that the law professorwould be favorable to their side of the case, I don’t think that the losing party should be able to challenge the resulting verdict on appeal.

President Obama has just named his first court of appeals nominee – district judge David Hamilton, nominated for the Seventh Circuit.

I had the pleasure of working with Judge Hamilton for several years on the Judicial Conference’s Criminal Law Committee. He always struck me as a very sensible and reasonable person — a good selection for the Seventh Circuit.

The Ninth Circuit has justed entered an order, found here, granting the crime victims petition for a writ of mandamus in the W.R. Grace prosecution in Montana. At the same time, however, the court sent the case back for more particularized findings on whether or not the victims’ testimony would be affected by watching the trial. So it looks like further proceedings will happen in Missoula.

It’s disappointing that the Ninth Circuit didn’t provide more information about why it reached the conclusion it did. This is an important question that will recur in many other cases.

I blogged recently about the W.R. Grace criminal trial, which started this Monday. As alleged in the indictment, the case involves crimes of “knowingly endangering” the residents of Libby, Montana. The district judge has ruled that these knowing endangerment crimes do not produce “crime victims” because they do not produce actual harm, only threatened danger. Accordingly, the victims could not exercise the right of crime victims to attend the trial, but instead were sequestered as witness.

Yesterday the defense filed their brief in the case. This excerpt gives a feel for the defense argument:

This case, however, is anything but run-of-the-mill, and it perfectly
illustrates the dangers of departing from the hornbook rule that the CVRA

Yesterday the criminal trial of the W.R. Grace & Co. and various responsible corporate officers began in U.S. District Court in Missoula, Montana. The trial is one of the most-watched environmental prosecutions by the Justice Department in recent memory, as it involves allegations of release of asbestos into Libby, Montana over the last several decades. Law professors and law students at the University of Montana School of Law are running this very interesting blog tracking the trial.

An extremely important crime victims’ rights issue has come up during the case, which will be resolved this week by the U.S. Court of Appeals for the Ninth Circuit: Are persons who have been endangered by an environmental crime sufficiently “harmed” to obtain rights under the Crime Victims’ Rights Act?

According to the indictment, over more than three decades, defendant W.R. Grace & Company mined vermiculite ore containing asbestos and released asbestos into the air around Libby. The indictment alleges a conspiracy to knowingly endanger persons in Libby as well as several substantive endangerment counts under the Clean Air Act, 42 U.S.C. § 7413(c)(5)(A).

The Crime Victims’ Rights Act extends its rights to all “victims” of federal offenses, which it defines as persons “directly and proximately harmed as the result of the commission of a federal offense.” 18 U.S.C. § 3771(e). In a pre-trial ruling, however, the U.S.District Judge presiding over the trial concluded that the charges involved mere

CBS News “Analyst” Andrew Cohen has called Justice Scalia a “bully” for offering strongly-worded views on legal subjects in this column. Cohen’s views are absurd. There is a vast difference between strongly arguing one’s case and “bullying” someone. In fact, it is Justice Scalia’s well-known ability to offer lively, opinionated views on legal subjects is what makes him such a desirable speaker for many organizations.

Interestingly, the apparent flash point for Cohen’s column is the fact that Justice Scalia opposes televising Supreme Court proceedings — something that CBS has a vested interest in securing.

The Sixth Circuit has just handed a crime victim a notable victory in the Sixth Circuit in this interesting order.

The case involves a federal criminal prosecution in Columbus, Ohio, involving some sort of fraud. After the defendant entered a guilty plea, he moved to seal all of the pleadings and other information involved in the case. A person who apparently was victimized by the defendant’s crime filed a motion to unseal the pleadings three months ago so that he could begin to exercise his rights under the Crime Victims’ Rights Act. The district judge handling the matter did not act on the motion for three months, despite the CVRA’s requirement that district judge’s rule on CVRA motions “forthwith.”

In its order just released, the Sixth Circuit granted a writ of mandamus directing the district judge to rule on the victim’s motion to unseal within two weeks. A brief dissenting opinion by Judge Clay wonders why a two-week delay is even needed. He asserted that there was no legitimate basis for the sealing in the first place, as

all we have is the defendant’s unsubstantiated and unsupported representation that he fears retaliation from anonymous, unidentified individuals with whom he might be incarcerated in prison in the future if the file is not sealed. That vague contention is hardly enough to overcome the public interest in not sealing the file, particularly when the person making the representaiton is someone totally lacking in credibility who is known to identify himself by multiple names. Furthermore, in view of the passage of time without a ruling by the district court on the motion to unseal, I am completely baffled by the majority’s order to permit up to an additional two weeks to expeire before the district court is required to rule. The parties and the district court were afforded ample opportunity to provide any information bearing on this issue prior to this Court’s ruling, and further delay in unsealing the file, which never should have been sealed in the first place, is entirely inappropriate and contrary to the purposes of the Crime Victims’ Rights aAct and the Mandatory Victims’ Restitution Act.

While I think Judge Clay is correct, I have little doubt that there will be an unsealing in two weeks.

One of the impressive things about the Sixth Circuit’s ruling is that it took place within about 48 hours of the filing of the victim’s petition. The petition, found here, makes a compelling case that the district judge has simply been ignoring the victim — something that the CVRA obviously does not allow. (Full disclosure: I have been informally consulting with the victim’s attorney.) The fact that the victim was able to swiftly and successfully obtain relief from an appellate court is an encouraging sign about the implementation of the CVRA.

A VC reader has forwarded to me this very interesting amicus brief filed by the Poker Players Alliance in a Kentucky case. The brief is filed “in support of every person’s right to legally play poker, both on the internet and in person.”

The crux of the argument is that the wagers in poker involve a great deal of skill:

While the initial distribution of cards and replacement cards are random, the decision on which cards to discard, the methods and steps in wagering, whether to wager or fold, the analysis of playing habits of other players, and the management of a player’s chips from hand to hard are all player-based decisions greatly influenced by the skill levels of the player.

The brief goes on to discuss Kentucky law, under which “gambling” activities are proscribed. Kentucky Rev. Stat. Ann. section 528.010(1) defines “gambling” as:

staking or risking something of value upon the outcome of a contest, game, gaming scheme, or gaming device which is based upon an element of chance, in accord with an agreement or understanding that someone will receive something of value in the event of a certain outcome. A contest or game in which eligibility to participate is determined by chance and the ultimate winner is determined by skill shall not be considered to be gambling.

The amicus brief contends that poker does not fit the definition of gambling because “the outcome is based primarily on the skilled play of the players.” The brief explains that most poker hands “are decided by all players folding to the winner. In that case the actual distribution of the cards (the element of chance) has no bearing on deciding who won. Instead it was the players’ analysis as to the relative value of their cards and their opponetns cards that determined the outcome, which is based on the myriad of skill elements” such as assessing risk, players’ strategies, etc.

The brief goes on to explain that Kentucky law as followed a “predominance” test to determine whether a game is one of skill or chance with regard to the gambling proscription. The Kentucky Attorney General has determined that table soccer, for example, is a game of skill — citing the presence of organized tournaments, regulations, and classifications of players. The brief goes on to offer various reasons for believing that skill predominates over luck in poker.

The whole brief is an interesting read. If the test under Kentucky law is truly a predominance test, I think the brief makes a compelling case that poker is not gambling. For example, it cites a study comparing an unskilled player making wagering decisions randomly against a skilled player in a two-player limit game of Texas Hold ‘Em. The skilled player apparently wins 97% of the hand and an average of more than one-and-a-half “big” bets. Anthony Cabot and Robert Hannum, Toward Legalization of Poker: A Game of Skill, presented at the Drake Gaming Law Symposium, Sept. 12, 2008.

According to this interesting article, a federal judge has recently set the sentencing date for four plant managers convicted of environmental and safety crimes on April 26, 2006. The sentencings are now set for April 24, 2009 — nearly three years later.

It is not clear what has caused the delay. Federal prosecutors filed a motion in December to speed things up. They argued that the sentencing delay affected public perception of justice. They also cited the Crime Victims’ Rights Act, which promises crime victims that they have a right to a trial “free from unreasonable delay.” The case involves a forklift accident at a foundry that killed a plant worker.

It’s hard for me to imagine what could reasonably cause a three-year delay in sentencing.

Update: Here is a copy of the Government’s “Motion to Set a Sentencing Date Pursuant to the Crime Victims’ Rights Act.” The Government’s claim:

More than two and one-half years have now elapsed since the jury in this case
convicted these Defendants of multiple, serious crimes. Several of those offenses related
to Defendants

According to this link, some college buddies nabbed in a poker bust are asking a South Carolina judge to decide whether Texas Hold ‘em is an illegal game of chance or permissible game of skill. Here is the text of the South Carolina criminal statute that appears to be at issue:

If any person shall play at any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place at (a) any game with cards or dice, (b) any gaming table, commonly called A, B, C, or E, O, or any gaming table known or distinguished by any other letters or by any figures, (c) any roley-poley table, (d) rouge et noir, (e) any faro bank (f) any other table or bank of the same or the like kind under any denomination whatsoever or (g) any machine or device licensed pursuant to Section 12-21-2720 and used for gambling purposes, except the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game of billiards, bowls, backgammon, chess, draughts, or whist or shall bet on the sides or hands of such as do game, upon being convicted thereof, before any magistrate, shall be imprisoned for a period of not over thirty days or fined not over one hundred dollars, and every person so keeping such tavern, inn, retail store, public place, or house used as a place for gaming or such other house shall, upon being convicted thereof, upon indictment, be imprisoned for a period not exceeding twelve months and forfeit a sum not exceeding two thousand dollars, for each and every offense.

Apparently poker players have recently had some luck arguing that poker is a game of skill rather than a game of chance. This recent press release from the Poker Players Alliance says that a Unviersity of Denver statistics professor testified that poker is a game of skill, leading to a Colorado jury acquitting the organizer of a poker league.

I think the South Carolina defendants will have a harder chance escaping, as the law quoted above bans “any game with cards.” Hard to see a game of skill defense given the plain language of the statute.