November 6, 2009
The Yale Law Journal Online: Marriage, Property and [In]Equality: Remedying ERISA’s Disparate Impact on Spousal Wealth
posted by Yale Law Journal
The Yale Law Journal Online is pleased to announce the publication of Marriage, Property and [In]Equality: Remedying ERISA’s Disparate Impact on Spousal Wealth, by Paula A. Monopoli. In this piece, Monopoli argues that Congress has a historic opportunity to resolve an ongoing gender disparity in ERISA through considered pension reforms. She outlines the steps that may be necessary to bring federal pension law into alignment with the general movement toward gender equality in marriage property law.
Preferred citation: Paula A. Monopoli, Marriage, Property and [In]Equality: Remedying ERISA’s Disparate Impact on Spousal Wealth, 119 YALE L.J. ONLINE 61 (2009), http://yalelawjournal.org/2009/11/4/monopoli.html.
November 6, 2009 at 8:08 am
Posted in: Uncategorized
Print This Post
Comments (0)
From the other side at AALS . . .
posted by Rachel Godsil
It has been a decade since I slept poorly at the Wardman in November – and I must admit to having some unpleasant flashbacks. Last night, like 10 years ago, I got lost on my way to an interviewing suite. I still find the bar scene a little anxiety producing. So – to those of you interviewing today – many of us on the other side of the couch do have empathy for you!
Needless to say, I acknowledge the difference. We on the interviewing side are happily (hopefully) ensconced as academics – a position that is frankly worth running from hotel suite to hotel suite. We are (hopefully) happy to talk about the benefits of our particular institution. And it has been fabulous to read the scholarship of those on the market.
I thought I’d post this morning mainly to wish you all good luck — and to explain why I am not posting anything substantive until next week. And a quick tip: when you are given the opportunity to ask any questions – find a question that allows for an interesting and idiosyncratic answer. I promise that every school will have an identical answer to the ubiquitous “what support does your institution have for junior faculty.” We all have colloquia, research stipends, and collegial sharing of documents. We all generally do try to give junior faculty reasonable teaching loads, etc. And if we don’t do any of these things, we won’t acknowledge it here!
November 6, 2009 at 5:34 am
Tags: academia
Posted in: Uncategorized
Print This Post
Comments (1)
November 5, 2009
Update on the Grassley Amendment
posted by Alex Kreit
It appears that Sen. Charles Grassley (R-IA) has pulled his amendment (that I blogged about on Tuesday here) to the National Criminal Justice Commission Act that would have prevented the commission from even discussing the decriminalization or legalization of any controlled substance. Grassley was asked about the amendment by a reporter yesterday during a conference call. He did not explain why he decided to pull the amendment, but did affirm that it would have applied to stop the discussion of even medical marijuana by the Commission. Law Enforcement Against Prohibition has the relevant exchange between Grassley and the reporter.
November 5, 2009 at 4:53 pm
Posted in: Uncategorized
Print This Post
Comments (0)
Lawyers: Don’t Trade on Inside Information!
posted by Lawrence Cunningham
In my corporations classes, I urge my students planning a career in corporate and securities law to resist the ubiquitous opportunities and occasional temptations to trade on the basis of material non-public information. I offer in terrorum encouragement by emphasizing that all trades are tracked and that enforcement authorities periodically review them for unusual patterns. Those are traced back to professional advisors, including law firms, having been involved in related deals. It is not difficult for authorities to catch these violations.
Along with dozens of others apparently caught up in the ongoing insider trading scandal at Galleon, today, an associate at the prestigious firm, Ropes & Gray, is alleged to have violated securities laws by using confidential information obtained from clients to profit in securities trades. Lawyers, as fiduciaries, who obtain material information through client representation, violate their fiduciary obligations and hence federal securities laws when they trade on it. See United States v. O’Hagan, 541 U.S. 642 (1997).
Over at the Wall Street Journal blog, Ashby Jones is asking how common insider trading is among lawyers. This is obviously a difficult empirical question. I can add, however, that (a) in the four years that I practiced law at Cravath, Swaine & Moore, one of my fellow-associates engaged in this activity (with his brother) and authorities prosecuted him (in 1995) for it and (b) during the two years before that when I was a paralegal at Skadden, Arps, one of the associates for whom I worked did so (with his sister) and he was likewise caught (in 1990).
In addition, the famous case embracing the so-called misappropriation theory of insider trading, United States v. O’Hagan, 541 U.S. 642 (1997), involved a lawyer—a partner at Dorsey & Whitney, representing Grand Met in its acquisition of Pillsbury, who generated nearly $4 million in unlawful trading gains from the knowledge.
I repeat to my students, past and present, and all lawyers: do not do this!
November 5, 2009 at 3:50 pm
Posted in: Current Events, Law Practice, Legal Ethics, Securities Regulation
Print This Post
Comments (2)
November 4, 2009
The Employer’s Strategy in Gross v. FBL Financials
posted by Michael Zimmer
Last Term in Gross v. FBL Financials, a 5-4 decision written by Justice Thomas, the Court decided that a plaintiff bringing a claim of individual disparate treatment age discrimination — an ADEA action — must prove, by a preponderance of evidence, that age was the “but-for” cause of defendant’s treatment of plaintiff. Thus, unlike Title VII, the burden of persuasion never shifts on the issue of linking what happened to plaintiff— “an adverse employment action” — to defendant’s intent to discriminate, even if plaintiff had produced evidence that age was “a motivating factor” of the defendant. This is an important discrimination case since the Court appears to be adding age cases to discrimination cases under the ADA (before its recent amendments) that deserve lesser enforcement than the Title VII claims of race, color, sex, national origin and religion discrimination. It will have ramifications in other areas of discrimination law, including retaliation cases and cases brought under 42 U.S.C. 1981. It even raises the question whether the iconic McDonnell Douglas v. Green approach to proving defendant’s intent to discriminate applies in age act cases. (So far, the two circuits deciding that question continue to apply McDonnell Douglas).
For those not interested in employment discrimination law, of which I suppose there may be a few, this may not seem a startling decision. But for those attuned to discrimination litigation and to Court watchers generally, the decision came as a quite a surprise. Most surprising is that the Court answered a question not presented to it for decision. In most situations when the Court determines that some question other than the one presented has come to the fore, certiorari is dismissed as improvidently granted or the case is remanded to the lower courts to decide this new question.
The question originally presented in Gross was: “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” What this referred to was Title VII authority that allowed burden shifting to the defendant of the issue of linkage between defendant’s intent to discriminate – the employer’s motivation for its action — and plaintiff’s harm and how that burden shifting might apply in age discrimination cases. Long story short, the Justice O’Connor’s concurring opinion back in a 1989 Title VII sex discrimination case, Price Waterhouse v. Hopkins, came to be viewed by the lower courts as the holding since her opinion was seen as the narrowest basis for the decision in which there was no majority. She required plaintiff to introduce “direct” evidence of discrimination in order to rely on a “substantial factor” test of linkage that shifted the burden of persuasion to the defendant to prove a same-decision defense. The 1991 Civil Rights Act then amended Title VII so that plaintiffs established liability by showing defendant’s intent to discriminate was only “a motivating factor,” with the burden then shifting to the defendant to prove the same-decision defense to full remedies, not to liability. The new provisions did not mention “direct” evidence and so Title VII was interpreted in Desert Palace v. Costa as not requiring any “direct” evidence threshold to the use of the new “a motivating factor” standard.
The question presented in Gross was how that all worked out in an age discrimination case. Up until the employer filed its reply brief, the case proceeded on the assumption that burden shifting applied, with the question being whether or not the plaintiff needed to point out “direct” evidence to take advantage of that shift in the burden of persuasion. Raised for the first time in its reply brief to plaintiff’s brief on the substance, the employer argued that a prior question needed to be answered before that question could be decided: Was burden shifting ever available in an ADEA case? The Court agreed that it should answer that question instead of the one presented and answered it in favor of defendant. Thus, the original question presented was mooted out.
For Court watchers, the more interesting question is why the employer decided so late in the game to try to shift the focus of the case.
November 4, 2009 at 10:43 am
Posted in: Civil Procedure, Civil Rights, Employment Law, Uncategorized
Print This Post
Comments (4)
In Memoriam
posted by Gerard Magliocca
Mary Mitchell, a beloved member of the Indiana University — Indianapolis faculty, passed away today after a sudden illness. Mary was a wonderful teacher who cared deeply about her students and fought passionately for her beliefs during her three decades at the law school. We are all devastated by this loss.
November 4, 2009 at 10:43 am
Posted in: Uncategorized
Print This Post
Comments (0)
One Year of Prop 8: A recap
posted by Kaimipono D. Wenger
A year ago today, California voters adopted Proposition 8 by a 52-48 margin. Last night, voters on the other side of the country voted the same way, by almost exactly the same margin.
I was interviewed earlier today about the issue, and the anchor asked a few questions like “What happened?” and “What’s next?” In the interview environment, I could give only quick sound bite answers. But those are complicated questions which deserve deeper discussion. So in this post, I’ll talk about what has happened in the marriage equality movement over the past year; and in a follow up, I’ll talk about what’s next for marriage equality. Read the rest of this post »
November 4, 2009 at 8:56 am
Tags: proposition 8
Posted in: Uncategorized
Print This Post
Comments (2)
November 3, 2009
Election Night 2009
posted by Alex Kreit
Like any good political junkie, I have been spending the past few hours switching back and forth between MSNBC and CNN on the television while frantically reloading talkingpointsmemo.com on my laptop. We have results in for the two big governors races, with Republicans picking up wins in Virginia and New Jersey. Meanwhile, the most closely watched ballot initiative, the marriage equality initiative Measure 1 in Maine (for those who have not been following the measure closely, a “No” vote on Measure 1 is a vote in favor of gay marriage), remains too close to call.
Flying under the radar (on this already somewhat under the radar election night), however, were two drug policy reform measures in Maine and Breckenridge, Colorado. And both appear to have won handily, with Mainers voting to approve the creation of a licensed medical marijuana dispensary system for patients to obtain medicinal marijuana and Breckenridge residents voting to decriminalize possession of up to one ounce of marijuana.
And with that, it’s back to reloading talkingpointsmemo.com for me.
November 3, 2009 at 9:59 pm
Posted in: Uncategorized
Print This Post
Comments (6)
AALS Hiring Conference
posted by Gerard Magliocca
I’ll be in DC (mostly in a hotel room) on Friday and Saturday as chair of IU-Indy’s hiring committee. If any regular readers of CoOp will be at the conference, email me and perhaps we can find some time to meet up.
November 3, 2009 at 5:15 pm
Posted in: Uncategorized
Print This Post
Comments (0)
Politicians: Have you talked to your constituents about drug policy?
posted by Alex Kreit
Thanks to Deven and the rest of the Concurring Opinions crew for the opportunity to guest-blog this month, I’m very excited to be here. I’ll be blogging mostly about drug policy issues, though I will likely touch on some other topics along the way as well (warning to those easily bored: this may involve me giving into my nerdiest law nerd-temptations and writing a post or two about facial and as-applied challenges.)
In my first post here though, I’d like to raise the question of why it is that reforming drug policy in the United States continues to be such a taboo political topic. This something that I think about often, but it is especially fresh in my mind with some less-surprising-than-it-should-be-news from today about Senator Jim Webb’s (D-VA) bill to create a historic blue-ribbon commission to study our nation’s criminal justice system, with a focus on reducing our unusually high incarceration rate. Sen. Charles Grassley (R-IA), has proposed an amendment to the bill that would prohibit the commission from making any “findings related to . . . criminal justice policies and practices or reform recommendations that involve, support, or otherwise discuss the decriminalization of any offense under the Controlled Substances Act or the legalization of any controlled substance listed under the Controlled Substances Act.”
Grassley’s proposal would be odd enough if it merely prevented the panel from recommending the decriminalization or legalization of any controlled substance. After all, it isn’t as if Webb’s commission will be writing the laws themselves; their task will to make recommendations that law-makers would be free to ignore or follow as they choose. Grassely’s proposal goes beyond restrictions on recommendations, however, by seeking to prohibit even the mere discussion of decriminalizing or legalizing any controlled substance. While Grassley is at it, maybe he should also instruct the commission members to shield their eyes from recent reports by the United Nations and the CATO Institute that found Portugal’s 8-year-old drug decriminalization policy has been a great success.
Of course, Grassley is far from alone among politicians in his aversion to even discussing alternatives to our current drug policy. In many ways, President Obama’s “drug czar” Gil Kerlikowske has been a breath of fresh air for his willingness to entertain and even advocate for certain drug policy reforms. But, when asked about legalization, his stock answer is that “legalization is not in the president’s vocabulary, and it’s not in mine.” Even the judiciary has gotten into the act, with the Supreme Court’s 2007 decision in Morse v. Frederick, which held that the First Amendment does not apply to protect student speech that school officials reasonably view as promoting illegal drug use.
So: why are we so afraid even to discuss ideas like decriminalization or legalization? For some of my quick, initial thoughts (and a request for yours as well), follow me to the flip… Read the rest of this post »
November 3, 2009 at 5:03 pm
Posted in: Uncategorized
Print This Post
Comments (5)
Fordham Law Review, Volume 78 Number 2 (November 2009)
posted by Fordham Law Review
| Volume 78 |
November 2009 |
Number 2 |
THE ROBERT L. LEVINE DISTINGUISHED LECTURE
OVERCOMING BARRIERS TO IMMIGRANT REPRESENTATION:
EXPLORING SOLUTIONS
Deepening the Legal Profession’s Pro Bono
Commitment to the Immigrant Poor
Hon. Robert A. Katzmann
Report of Subcommittee 1: Increasing Pro Bono Activity
The Representational and Counseling
Needs of the Immigrant Poor
Jennifer L. Colyer, Sarah French Russell, Robert E. Juceam & Lewis J. Liman
Reports of Subcommittee 2: Enhancing Mechanisms for Service Delivery
Introduction
Claudia Slovinsky
Barriers to Representation for Detained
Immigrants Facing Deportation: Varick
Street Detention Facility, A Case Study
Peter L. Markowitz
Report of Subcommittee 3: Addressing Inadequate Representation
Regulating Immigration Legal Service Providers:
Inadequate Representation and Notario Fraud
Careen Shannon
Essay
A View from the Immigration Bench
Hon. Noel Brennan
Epilogue
Representation for Immigrants:
A Judge’s Personal Perspective
Hon. Denny Chin
ARTICLES
Disclosure, Deception, and Deep-Packet
Inspection: The Role of the Federal Trade
Commission Act’s Deceptive Conduct
Prohibitions in the Net Neutrality Debate
Catherine J. K. Sandoval
The Dog That Didn’t Bark: Stealth
Procedures and the Erosion of Stare Decisis
in the Federal Courts of Appeals
Amy E. Sloan
November 3, 2009 at 4:24 pm
Posted in: Law Rev (Fordham), Law Rev Contents
Print This Post
Comments (0)
Engaged – and Engaging – Scholarship – Paul Butler’s Let’s Get Free
posted by Rachel Godsil
I am thrilled to be back at Concurring Opinion – thanks to Solangel, Dan and the other regulars for having me. The timing of this visit is propitious for me – I am returning from a policy-focused (and surprisingly non-academic) sabbatical and I have been thinking a great deal about how best to stay engaged in policy/politics while also returning to academic culture. The worlds of advocacy and academia are distinct, obviously, and reconciling them can be challenging.
While I have been wrestling with these challenges, some of our academic colleagues, have I think, been meeting them – Richard Thompson Ford’s, The Race Card, Kenji Yoshino’s, Covering are two examples. Most recently, and in some ways the most salient to my own aspirations, is Paul Butler’s recent book, Let’s Get Free: A Hip-Hop Theory of Justice.
Butler’s book is extraordinary – he is a wonderful writer and tells a compelling story about his days as a prosecutor and his own improbable arrest and trial. But while books by lawyers about their practice are often fun reads – and this one is – what is most impressive is that Butler’s book is a theory of criminal justice. Butler is doing far more than telling a good story about lawyering. He has taken his scholarly agenda (which as many of us know has landed him impressive placements in law reviews) and rendered it readable. He weaves high level traditional theory, data, narrative, very candid self-critique, and insights from hip-hop. It may seem like a gimmick to have a sentence containing Snoop Dogg and Jeremy Bentham – but in Butler’s book, it’s not. He obviously knows both intimately and uses them to brilliant effect (and for the record, I don’t particularly like hip-hop).
November 3, 2009 at 3:56 pm
Posted in: Book Reviews, Civil Rights, Uncategorized
Print This Post
Comments (0)
Buffett Bullish on America
posted by Lawrence Cunningham
Economic prognosis positive is the signal to hear today from Warren Buffett and Berkshire Hathaway’s agreement to buy 100% of the stock of the railroad, Burlington Northern Santa Fe, consolidating the company’s 22% ownership stake in a $34 billion acquisition.
As an author of books on Buffett’s investment philosophy, including a compilation of his letters I prepared for a law review symposium at Cardozo Law School in 1997, I’m quoted in tomorrow’s USA Today story covering the deal (written by Adam Shell).
Adam’s story correctly reflects my take on the deal as squarely meeting Buffett’s traditional criteria: a business within Buffett’s “circle of competence” (i.e., that is easy for him to understand), run by people he “likes, trusts and admires,” and at a price reflecting good value for money.
More broadly, the story reflects how this acquisition is a very public statement that Buffett is “bullish on America,” the long-time slogan of erstwhile investment bank Merrill Lynch (now a part of Bank of America).
There’s one way the deal and Berkshire’s disclosure is unusual: Buffett says this acquisition is a big “bet” on Burlington, its management, and the US economy. Buffett does not usually talk about investing using the word “bet” or other gambling terms, eschewing them in favor of emphasizing cool, calculated, rational evaluation of business and its environment.
Another notable feature about this investment, Berkshire’s largest acquisition ever, is how Burlington is particularly strong, among railroads, in transporting goods from West coast ports into America’s heartland. Forecasting high returns doing that suggests a prediction that, as the US economy recovers, the country will remain heavily reliant on imports, certainly of goods and probably of energy, especially from China and East Asia.
Maybe there is a gamble here, on both a US recovery and the post-recovery shape of trade, manufacturing and consumption. And there is always risk in investment. But this one fits enough within traditional Berkshire investments that it suggests being bullish again may be a safe bet. [Disclosure: I own Berkshire Hathaway stock, and have for many years.]
Photo Credit: Norman Goldberg (Buffett teaching my Corporations class at Cardozo Law School, 1998)
November 3, 2009 at 3:45 pm
Posted in: Current Events
Print This Post
Comments (2)
Fear of a Google Planet
posted by Matthew Sag
Should we fear Google? This question, unthinkable ten, maybe even five, years ago, seems to dominate internet policy discussion today. AT&T is afraid of Google Voice. Apple might be afraid of the Google Phone. Microsoft is afraid that Google Apps will make its Office suit redundant. These fears are justified, but they are also good. In most cases Googlephobia is a condition suffered by competitors. Google will probably kill off some competitors, but it will force many more to continue to innovate and provide better products to the consumer at lower prices. So, yes, some people should fear Google. But should we the public?
“Fear is often preceded by astonishment, and is so far akin to it, that both lead to the senses of sight and hearing being instantly aroused. In both cases the eyes and mouth are widely opened, and the eyebrows raised.” Charles Darwin, The Expression of the Emotions in Man and Animals.
In its pre-settlement incarnation, the Google Book Search (GBS) project was merely an astonishing attempt to build a comprehensive search engine to allow full text searching inside millions of books. The GBS envisaged in the Settlement (before the DOJ sent the parties back to the drawing-board) was much more ambitious. Not satisfied with digitization, indexing and limited display of books consistent with copyright law’s fair use doctrine, Google, the Authors Guild and a handful of publishers struck a deal which allowed for the commoditization of digital books as direct substitutes for paper copies. Subject to an opt-out and a few other exclusions, the Settlement swept in almost all books subject to U.S. copyrights and established an entirely new institutional framework for clearing digital book rights.
My personal view is that justified astonishment at the GBS Settlement has, in too many cases, given way to unjustified fear. Google is still far from being the new Microsoft as the Department of Justice’s Christine Varney has asserted. It certainly does not act like it. Google’s track record of openness and innovation are heartening and there is very little evidence so far that they plan on abandoning their “don’t be evil” corporate culture.
Googlephobia appears to be the foundation of some pretty wild assertions in the context of the Google Book dispute in particular. Google conceives that it is set to liberate out-of-print books from their dusty dungeons on the relatively inaccessible shelves of the worlds great libraries. Critics of the deal (and the initial more modest GBS) see plans for monopolization of hitherto non-existent markets, the destruction of libraries, universities and even the book itself.
The Google Book Settlement was not perfect, but my own fear is that Googlephobia and the intervention of the Department of Justice have left us worse off than we would have otherwise been. The Google skeptics are right about a number of the Settlement’s shortcomings, but now that the parties renegotiating the deal we had all better hope that GBS version 3 is better, fairer, and more accessible — not just smaller and less ambitious.
It might be naive to simply trust in Google, but the fear Google now inspires seems equally misplaced.
November 3, 2009 at 1:09 pm
Tags: copyright, fair use, Google, Google Book Settlement
Posted in: Uncategorized
Print This Post
Comments (2)
From the Concurring Opinions mailbox
posted by Kaimipono D. Wenger
We get lots of mail. Some messages are very useful and make it onto the blog; others are useful, but not really blog material. A substantial portion of messages are nice but basically irrelevant to the Co-Op bloggers. And another substantial portion is . . . err, quirky. Fortunately, we just received one example which so perfectly captures the category, that I thought I’d reproduce it in its entirety for our readers’ edification and enjoyment. (One note — due to the deficiencies of control-V, the widespread use of boldface in the message did not properly copy. My apologies. Rest assured that the original contained substantial use of boldface.) Everything that follows this paragraph (including section breaks, editing notes, and several “emphasis added”s) is from our interlocutor. Enjoy!
***
Who was the last law school prof (or even a Supreme or even a law school student) to read the 1787-1788 Federalist (at least 1,000 times) to get ANY clue about what the 1787 U.S.A. Constitution says or means regarding *federalism* ??? Read the rest of this post »
November 3, 2009 at 1:08 pm
Tags: constitutional law for the insane
Posted in: Uncategorized
Print This Post
Comments (3)
November 2, 2009
Duke Law Journal Volume 59 November 2009 Number 2
posted by Duke Law Journal
Volume 59 October 2009 Number 2
Articles
Vanessa Baird & Tonja Jacobi
Thomas B. Colby & Peter J. Smith
Notes
Reasonableness Meets Requirements: Regulating Security and Privacy in Software
Paul N. Otto
Kate M. Supnik
November 2, 2009 at 3:52 pm
Posted in: Law Rev (Duke)
Print This Post
Comments (2)
Vanderbilt Law Review En Banc PCAOB Roundtable
posted by Vanderbilt Law Review
Vanderbilt Law Review En Banc is pleased to present the “first take” pieces for its inaugural Roundtable from Professors Hal Bruff, Steven Calabresi, Gary Lawson, Rick Pildes, and Christopher Yoo. The debate is on Free Enterprise Fund v. Public Company Accounting Oversight Board. Professor Peter Strauss’s previously laid the foundation for the debate with his introductory piece. We will also be publishing response pieces from the professors on December 7.
Harold H. Bruff, Bringing the Independent Agencies in from the Cold, 62 Vand. L. Rev. En Banc 63 (2009).
Gary Lawson, The “Principal” Reason Why the PCAOB is Unconstitutional, 62 Vand. L. Rev. En Banc 73 (2009).
Richard H. Pildes, Putting Power Back Into Separation of Powers Analysis: Why the SEC-PCAOB Structure is Constitutional, 62 Vand. L. Rev. En Banc 85 (2009).
Steven G. Calabresi & Christopher S. Yoo, Remove Morrison v. Olson, 62 Vand. L. Rev. En Banc 103 (2009).
November 2, 2009 at 2:37 pm
Posted in: Uncategorized
Print This Post
Comments (1)
The Passive Voice in Statutory Interpretation
posted by Anita Krishnakumar
Thanks to Dan et al. for the opportunity to guest-blog this month. For my first guest post, I want to highlight a little-noticed tool of statutory construction that has reared its head in a handful of recent Supreme Court decisions: inferences based on Congress’s use of the passive voice in criminal statutes. I first noticed Supreme Court reliance on the passive voice to construe a criminal statute in Justice Kennedy’s dissenting opinion in Jones v. United States (1999). Jones involved construction of the federal carjacking statute, 18 U.S.C. §2119, which then read as follows:
“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—
(1) be fined under this title or imprisoned not more than 15 years, or both,
(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”
Defendant Jones had participated in a carjacking with two other men. While Jones and one of the other men held up the victims, a third man had stuck his gun in one of the victims’ ears and later struck that victim on the head. The issue in the case was whether clauses (1), (2) and (3) of §2119 are sentencing provisions, specifying punishment/sentencing possibilities for the offense set forth in the first paragraph, or whether they are three different offenses (one being a carjacking offense, two being carjacking + serious bodily injury, and three being carjacking + serious bodily injury resulting in death). The classification mattered because the indictment did not charge any of the facts relating to bodily injury mentioned in clauses (2) or (3) and the jury instructions defined the elements of the government’s burden of proof with reference only to the first paragraph of §2119. If clauses (2) and (3) were deemed sentencing provisions, this would not matter, and Jones could be sentenced to 25 years based on the serious bodily injury caused to one of the victims; if clause (2) and (3) were read as separate offense provisions containing new elements, then the government’s failure to plead these elements in the indictment and prove them before the jury would preclude it from seeking the 25-year penalty against Jones.
In a 5-4 opinion, the Supreme Court concluded that “the fairest reading of §2119” was to treat the serious bodily harm provision as an element of a separate offense, rather than as a mere sentencing enhancement. Justice Kennedy, joined by three other dissenters, disagreed—relying in part on the fact that the statute “uses the active voice in the main paragraph and the passive voice in clauses (2) and (3).” While recognizing that the rule was not an absolute one, Justice Kennedy argued that “[i]n the more common practice, criminal statutes use the active voice to define prohibited conduct”— and the passive voice when listing sentencing factors. This inference based on the statute’s use of the “passive voice” certainly did not do all, or even the bulk, of the work in leading Justice Kennedy (or the other dissenters) to the conclusion that clauses (2) and (3) should be read as sentencing enhancements, but the dissenters did emphasize it to bolster/corroborate their reading of the statute.
November 2, 2009 at 1:38 pm
Posted in: Criminal Law, Supreme Court
Print This Post
Comments (7)
The Return of Penal Colonies
posted by Gerard Magliocca
On Friday, attorneys for six of the Uighurs held in Guantanamo Bay announced that they have been transferred to live on the island of Palau. (Pitcairn Island must have been unavailable). Perhaps all of the detainees who are the parties in Kiyemba (just taken on certiorari by the Supreme Court) will be resettled to render the case moot.
This ad-hoc way of dealing with the detainee issue strikes me as problematic. In effect, it allows the Executive Branch unfettered discretion to establish penal colonies around the world and place curbs on the post-release activities of detainees without any due process whatsoever. While I’m sure most of the detainees would prefer some freedom on some random island over prison, I think that Congress needs to take a look at this practice and consider establishing some guidelines.
November 2, 2009 at 11:07 am
Posted in: Constitutional Law
Print This Post
Comments (1)
Drafting the 28th Amendment
posted by Michael Zimmer
With only 27 amendments so far in our long history with our present Constitution, a colleague and I asked all of our Constitutional Law students in the fall of 2005 to propose a 28th Amendment. This was to celebrate Constitution Day, so we opened the exercise to everyone in the law school community. There was a range of responses across different areas of Constitutional law, including several structural proposals and the expansion of negative as well as of positive individual rights. Starting at number 10 and moving to number 1, here are the top 10 proposals:
10. A tie:
Equal protection because of sexual orientation. This adds to the idea that, at least in this group of law students, issues over sexual orientation should be resolved in favor of gay and lesbian rights.
Repeal of the Second Amendment. This was before Heller but the issue obviously was on the horizon for some. Since both classes used the Chemerinsky casebook that started with the problem of the Second Amendment even before Heller, that might explain the focus. I wonder if the response would be different if the law school was not located in the heart of a major city.
The right to equal education. Each year that I have taught San Antonio v. Rodriguez, a number of students express absolute shock that this is not already a protected individual right. Law students seem to be committed to education, though sometimes their contribution to it might appear a little weak on any particular day.
Constitutional protection for broad campaign finance legislation. Given the way our federal government operates, or fails to, this one is no surprise.
6. Equal protection because of sex or gender. The Equal Rights Amendment still lives in the hearts of some students, despite the expansion of the equal protection clause to cover sex discrimination.
5. A tie:
Make explicit a constitutional right to privacy.
Prohibit the death penalty.
3. Guarantee universal health care. This may just show how long this issue has been on the agenda.
2. Presidential election by direct vote. Bush v. Gore still had impact five years later.
1. Legalize same-sex marriage or civil unions. While phrased somewhat differently, proposals on this topic constituted more than twice as many amendments as the next most popular proposal. Not one proposal was made to restrict same-sex marriage or civil unions.
November 2, 2009 at 10:22 am
Posted in: Uncategorized
Print This Post
Comments (10)
