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April 8, 2009

Topics of student interest in the closing weeks?

Because we got distracted by the (important) story of mandatory minimum sentencing statutes (both in policy and in practice), next Wednesady's class will focused primarily on wrapping up the guidelines debate concerning Judge Kent and working in the story of Blakely and Booker.  Though I suspect and fear that the Blakely/Booker story in turn will carry over until next Friday, that will still give us at least two classes to cover any (though surely not all) topics that may have to date slipped through the cracks.

So, as I suggested in class, I encourage students to use the comments here (or my e-mail) to report on topics of interest for our last few classes.  I won't promise a first-come, first-serve response, but I will do may best to make sure in class we get to sentencing topics of greatest interest in our waning hours together.

April 8, 2009 in Class activities | Permalink


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I suggest a test. This requires that ambulances be on standby outside the building, with telemetry and resuscitation equipment at the ready. The local emergency room should be notified, there may be some incoming.

Ask the students to utter the V word out loud. If any can, they should be forced to repeat 1L. Their criminal cult enterprise indoctrination is incomplete. Once the highly traumatic exercise is all over, the students will never have to think about crime victims again, for the rest of their lawyer careers.

Posted by: Supremacy Claus | Apr 9, 2009 12:07:16 AM

I would be interested in a discussion of the consecutive vs. concurrent distinction in sentencing decisions and the use of acquitted conduct to increase sentences.

Posted by: Shawn | Apr 9, 2009 12:22:26 AM

I suggest a couple of things:

1) A cage match between Prof. Berman and Supremacy Claus.

2) Although I have read the Apprendi-Booker-Blakely line of cases, I would love to have a brief review of their application and get some insight as to what you think the future holds regarding their effect on sentencing.

3) More info about judges and what influences their sentencing decisions (and how to alter their decisions).

Posted by: Andy | Apr 9, 2009 10:37:04 AM

Andy: I have no doubt that even if I brought armed body guards, Prof. Berman would just kick my rear end up and down the stairs.

I know he is a decent person, and himself a victim of indoctrination.

Here is a remedy that promotes lawyer rent seeking, and may be attractive. Solve the crime problem with torts.

End all self-dealt immunities, of the lawyer, of the adverse lawyer, and of the judge. Start by reversing Hans, and repealing the Eleventh Amendment, with its shady origin.

The lawyer has total control of the body of the criminal. If any of the three lawyers in a case deviates from professional standards of due care, the victims of their carelessness should be allowed to sue them and get made whole by professional liability insurance. The latter should be required before renewal of the law license, and before being seated on any bench.

This is a neutral proposal. The criminal may sue the prosecutor for filing a frivolous charge or the judge for a false guilty verdict. The crime victim may sue the judge, the defense lawyer and the judge for their carelessness. Convictions for two prior violent offenses should establish judge scienter of the criminal's tendency to violence per se, in a statute.

Without rehashing the Constitutional justifications for ending lawyer and judge self-dealt immunities, this is a test of the lawyer's belief in torts. I sure believe in torts, and actually oppose tort reforms, including limits on punitive damages. A required certificate of merit is a tort reform I would support to protect judges from frivolous and retaliatory litigation.

The Supreme Court should also be stripped of its immunity before all others, since they are the most dangerous, and careless tort feasors of all.

I am available to debate this remedy with Prof. Berman anywhere, anytime.

Posted by: Supremacy Claus | Apr 9, 2009 8:51:24 PM

One may ask, what is the tort by the Supreme Court, given their constitutional role?

It is an intentional one. Ghoulish human experimentation without consent, without pilot data, without follow up, just imposition of arbitrary personal biases on the owners of the law, at the point of a gun, with enforcement by Army Airborne, with ultra- rare reversals of hideous decisions.

Posted by: Supremacy Claus | Apr 10, 2009 1:10:07 PM

i agree with Andy's suggestion

3) More info about judges and what influences their sentencing decisions (and how to alter their decisions)

Any if there is a little violence, i would watch.

Posted by: Jeanna | Apr 13, 2009 1:09:31 PM

Judges do not want to get reversed by the criminal cult hierarchy. The value of that cult to them exceeds that of life itself. They do not want to get bashed by the left wing media. They want to generate lawyer jobs for the contributors from both tables. They obey executive policy arguments, even if the government is not a party. They are biased in favor of the executive, even when the argument is ridiculous.

Once the arguments satisfy the above criteria, then they will read the law arguments in briefs and motions.

Those have no validity nor legality in most cases. Their core supernatural feature violate the Establishment Clause of our secular nature.

Lastly, they make up law in accordance with their personal preferences. If they have no preference, they make up law to favor the lawyer they like.

These made up decisions are restrained by the need to get elected by the public. The lawyers in academia want "merit selection." This is a weasel phrase for left wing (ABA style), and for compliant with criminal cult value, the sole one being rent seeking. Weasels will get to select judges, breaching the tiny, flimsy barrier against total criminal cult domination of our government.

Many decisions cannot be explained by rent seeking, nor by cult promotion, nor by the law, nor by bias, nor by any rationale whatsoever. Those are best explained by a bribe. These are often clever, and disguised in the costume of a conflict of interest. No, the judge did not get an envelope of cash. However, the judge's wife's law firm will get the huge real estate contract work for the mall coming to town months after the verdict. She said that to the judge at home. No one heard it, saw any meeting, and all money is properly earned and reported. It has not even taken place during the trial.

Last of all, rare as a dodo bird? Justice.

For the masking ideology, the cult lies, here:


[Posner is pretty bright, but intellectually hobbled by law school indoctrination. He hints at the truth, and mentions rent seeking in his Economic Analysis of Law. Has a glimmer of a clue.]


This weasel has no clue and is a bold faced liar and hypocrite.

Posted by: Supremacy Claus | Apr 14, 2009 7:23:49 AM

I am also interested in the topic Shawn raised, that of consecutive and concurrent sentences. It basically seems to me that those are another example of judges being handed 'the ball' with regard to that decision.

Posted by: Mario | Apr 14, 2009 4:19:57 PM

I am interested in continuing to explore how guidelines and prescribed ranges conflict with ordinary intuitions of blameworthiness and offense severity. I am particularly interested in how malum prohibitum offenses (to my eye), such as guns and drugs, . I'm also interested in - if not Constitutional objections to length of punishment, since those have been interpreted narrowly - ordinary moral objections, and how we might go about conforming sentences more closely to ordinary moral intuitions.

I am also interested in considering unconventional punishments and sentencing systems (such as we briefly discussed early in the class), and whether moving away from incarceration as our primary method of redress is either feasible or desirable. I have to admit that I am more willing to consider unconventional alternatives now than I would have been at the beginning of the class.

Posted by: Leon | Apr 14, 2009 10:54:10 PM

The truncated sentence should have read "I am particularly interested in how malum prohibitum offenses (to my eye), such as guns and drugs, are punished more severely than many crimes against property and person."

On another note, who's excited for the Blue Jackets pull the upset of the century? Perhaps, as the legend goes, the ghosts of the prisoners from the old Ohio state penitentiary where Nationwide Arena stands will use their ghostly powers to lead us to victory!

Posted by: Leon | Apr 14, 2009 10:59:00 PM

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