Sentencing Law

* The NSA protests that its spying on foreign leaders was entirely legal. In defense of the NSA, this latest uproar seems misplaced. Warrantless spying on Americans is illegal, but spying on foreign governments is kind of the whole point of the NSA. [Associated Press]

* Judge James Bredar has laid out his thoughts on how sentencing judges should deal with the changing legal landscape surrounding marijuana. This is important because those dumb Guidelines still recommend an enhancement for taking One Toke Over the Line. [Sentencing Law & Policy]

* Should a plagiarizing journalist be allowed to join the ranks of licensed attorneys? Con: His crime suggests low moral character. Pro: He’s going to be a master of boilerplate. [Juice, Justice & Corgis]

* Jones Day is representing pro bono a number of Catholic institutions ticked off that they might have to buy insurance that their workers might, at some point, maybe use to buy birth control pills. It’s a tremendous intrusion upon religious liberty that Catholic institutions routinely did before they decided to make a political spectacle out of it. [National Law Journal]

* A speech to Harvard Law alums about the slow death of free speech at Harvard. By “slow death of free speech” the speaker details how a private, non-governmental institution decided not to tolerate jackassery, but whatever. [Minding the Campus via The Volokh Conspiracy]

* It’s still several months until the ATL Law Revue competition. So to keep you entertained until then, check out this parody of Lorde’s Royals performed by some law students. It looks like it’s the same geniuses from Auckland Law School behind the Blurred Lines parody. Do the Kiwis have time to do actual law school stuff? Video embedded after the jump… [Legal Cheek]

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You don’t often see federal courts striking down conditions of supervised release as violations of substantive due process. But you don’t often see the federal government wanting to hook up a device to a man’s penis, make the man watch pornography, and see what happens. It sounds a bit… 1984 (affiliate link).

I couldn’t help noticing this opinion, given its unusual nature and its focus on the peen. I’m sure you’re all dying to learn more about the procedure known as “penile plethysmography.” (The good news: it’s not as bad as a penile embolism or penile degloving.)

You know you want to see what those Second Circuit judges are hiding underneath their robes. Let’s dig a little deeper (into the opinion), shall we?

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Shon Hopwood

* Thanks to the Electronic Frontier Foundation, the Department of Justice will be declassifying some secret opinions from the FISA Court. We wonder who’ll be hosting the giant redaction party. [Associated Press]

* Morgan Lewis paid out a $1.15 million settlement over unfinished business claims to this defunct firm. Great work, Mr. Diamond, but Howrey going to get the rest to do the same? [Am Law Daily (sub. req.)]

* “[Shon] Hopwood proves that my sentencing instincts suck.” Now that this former bank robber has a clerkship with the D.C. Circuit, the judge who sentenced him is having second thoughts. [The Two-Way / NPR]

* Laptops are useful tools for students in law school classrooms, but they’re also great for checking Above the Law and buying shoes while professors are droning on and on. Apparently we needed a study to confirm this. [National Law Journal (sub. req.)]

* George Zimmerman’s wife filed for divorce, citing “disappointment” as one of her reasons for ending the marriage. Don’t worry, Shellie, half of the nation was disappointed with the verdict too. [Washington Post]


* “The situation is an absolute mess.” Last summer’s SCOTUS decision on mandatory life-without-parole sentences for juvenile offenders has created a “legal limbo” for inmates. We hope they find suitable dance partners. [Wall Street Journal (sub. req.)]

* Even after you retire, you apparently still have to deal with the Cebullsh*t from your life on the bench. Former Chief District Judge Richard Cebull’s misconduct review is likely heading to Administrative Office of the U.S. Courts. [Great Falls Tribune]

* Woe unto them that call unpaid work fair: the Second Circuit quickly granted Fox Searchlight an appeal in the Black Swan unpaid intern case in the hope of offering some “much-needed guidance.” [Deadline]

* Which private law schools offer students the best value? Some unlikely contenders are named on this list, and some T14 schools even make appearances. We’ll have more on this later today. [National Jurist]

* GW wasn’t the only school that grew the size of its entering class (although it was the largest increase). William & Mary and Missouri-KC saw big gains, too. Yay, more lawyers! [National Law Journal (sub. req.)]

* If you’re considering applying to law school, think about schools that have lowered their standards and are offering scholarship money like candy. Otherwise, here are some helpful hints. [Huffington Post]

* Henry Putzel Jr., former reporter of decisions at the Supreme Court, RIP. [Washington Post]

* The NFL has reached a $765 million settlement with the over 4,500 retired concussion victims whose injuries paved the way for the league’s success. [Sports Illustrated]

* Dennis Rodman confidante Kim Jong-un had his ex-girlfriend executed on pornography charges. Kind of puts the whole “revenge porn” thing in perspective. [The Telegraph]

* A lawsuit against Curt Schilling, based on allegations that he deceived the state into giving his company $75 million, will go forward. Like most conservative Republicans, Schilling saw no problem with taking millions in handouts from the government so long as poor people don’t get $4.50 a day for food. [Comcast SportsNet]

* Judge Mark Bennett (N.D. Iowa) ripped the Department of Justice for creating massive drug sentencing disparities because the DOJ went years without a policy for when prosecutors should double the prison time for repeat offenders. In Northern Iowa, that’s a LOT of meth heads in prison. [Des Moines Register]

* Attorneys for the Governor of Pennsylvania equate gay marriage to letting 12-year-olds marry. Just because a demographic calls everything “gay” doesn’t make them gay. [ABA Journal]

* Study shows academics use lots of adjectives and adverbs. This is really a very terrific and awesome study. [TaxProf Blog]

* Polygraphs are inadmissible, but remember invisible jets are A-OK. [Texts from Superheroes]

* REMINDER: OK NYU, Columbia, Fordham, Cardozo, and NYLS students! It’s time to send nominations to us for where you want us to go on the Great Above the Law/Kaplan Bar Review Bar Crawl. Send bar nominations to tips@abovethelaw.com, subject: “Bar Crawl.” See you on September 18th! [Above the Law]

Alan Dershowitz

It’s going to happen the way things always happen at the court. The court will appear to be leading, but it will be following.

– Professor Alan Dershowitz, offering a prediction about how the Supreme Court will eventually kill off the death penalty. The Court effectively suspended the death penalty in 1972 but brought it back in 1976, a story chronicled in a fascinating new book I’m currently reading, Evan Mandery’s A Wild Justice: The Death and Resurrection of Capital Punishment in America (affiliate link).

It’s Alito time, Phil! (via Getty Images)

* The NSA has violated the Constitution for years, you say? And it’s been misleading the FISA court about all of its domestic spying activities? As of this moment, the NSA is on double secret probation! [New York Times]

* Imagine how the New York stop-and-frisk case would have turned out if it had been before SCOTUS. The “human toll of unconstitutional stops” may not have been weighed so heavily. [Opinionator / New York Times]

* “[N]o one has a crystal ball,” but right now, it’s highly likely that the Supreme Court will take up another gay marriage case. Perhaps it’ll be the one that’s currently unfolding in Pennsylvania. [Legal Intelligencer]

* According to a recent survey conducted by Randstad, about 60 percent of lawyers are proud to be members of the legal profession, which is impressive(!) considering how unhappy they are. [The Lawyer]

* Birds of a feather really do flock together. Philip Alito, son of Justice Samuel Alito, will join Eugene Scalia, son of Justice Antonin Scalia, at Gibson Dunn’s Washington, D.C. office. [Blog of Legal Times]

* Even though the vast majority of his race-based claims were dismissed on summary judgment, this “token black associate” still has a respected Biglaw firm up against the Ropes. [National Law Journal]

* Law school applications are plummeting, but top law schools haven’t started scraping the bottom of the barrel — their applicants’ LSAT scores have remained relatively competitive. [WSJ Law Blog (sub. req.)]

* I am Chelsea Manning, I am a female.” Considering (s)he was just sentenced to 35 years in prison, Bradley Chelsea Manning picked a great time to make this announcement to the world. [Chicago Tribune]

* You dare call the Duchess of Dumplins racist and sexist? When it comes to Paula Deen’s new legal team from Morgan Lewis, five are women, and four are black. Take that, Lisa Jackson. [Am Law Daily]

Martin Lipton?

* Former SCOTUS clerks earn more money for having clerked at the high court than SCOTUS justices earn for their yearly salaries. Consider how ridiculous that is. [The Economist]

* As it turns out, the National Security Agency oversteps its legal authority thousands of times each year, but that’s only because it’s a “human-run agency.” [Washington Post]

* Federal judges have come together to bemoan sequestration. “We do not have projects or programs to cut; we only have people.” Eep! Don’t give them any ideas. [National Law Journal]

* Ready, set, lawgasm! The comment period for proposed amendments to the Federal Rules of Civil Procedure opened up yesterday, and yet again, e-discovery rules are on the table for debate. [Forbes]

* NYU professors want Martin Lipton to step down from the school’s board of trustees, but the Wachtell Lipton founding partner has had a honey badger-esque response — he don’t give a s**t. [Am Law Daily]

* As was widely expected, Mayor Michael Bloomberg’s army of New York City lawyers will soon take the first step to appeal Judge Shira Scheindlin’s stop-and-frisk ruling. [New York Law Journal (sub. req.)]

* A West Virginia judge was federally indicted for attempting to frame his secretary’s husband with drug charges. Did we mention that the secretary is the judge’s ex-lover? Quite dramatic. [Charleston Gazette]

* Consortium: Not just for straight couples. A same-sex couple in Pennsylvania is trying to appeal the dismissal of a loss of consortium claim in light of the Supreme Court’s Windsor ruling. [Legal Intelligencer]

* Christian Gerhartsreiter, aka poseur heir Clark Rockefeller, was just sentenced to 27 years to life in prison in a California cold-case murder. Maybe Lifetime will make a sequel to that god-awful movie. [Toronto Star]

* Jacques Vergès, defender of notorious villains and perpetual devil’s advocate, RIP. [New York Times]

I support radical reform of our nation’s drug laws not despite my conservative political views, but because of them. Decriminalization efforts support at least three values that mean much to me as a conservative. Decriminalization falls in line with the conservative (or at least libertarian-leaning conservative) emphasis on personal liberty and the rights of individuals to make choices about how they govern themselves, so long as their actions don’t directly harm others. Decriminalization makes good moral sense too, by not vilifying addicts and by not needlessly breaking up families through incarcerating non-violent offenders. Perhaps most significantly, radically reforming current drug laws avoids the economic irresponsibility of America’s failed war on drugs.

This week, of course, Attorney General Eric Holder announced new Justice Department policies for drug prosecutions, while addressing the ABA Annual Meeting in San Francisco. In his speech, Holder proposed tinkering with the application of mandatory minimum sentences for drug-related crimes; modifying the Justice Department’s charging policies “so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences”; and “taking steps to identify and share best practices for enhancing the use of diversion programs – such as drug treatment and community service initiatives – that can serve as effective alternatives to incarceration.”

I commend Holder’s effort. But as a conservative considering the economics of the drug war, I’m concerned that this new policy neglects one of the most significant reasons why we need much more radical reform than this . . . .

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I didn’t go to Eric Holder’s big speech at the ABA annual meeting on Monday. I kind of halfheartedly tried to go, but there were a lot of people who wanted to see Holder say something they could’ve read about online hours earlier.

If the ABA had invited Secretary of Education Arne Duncan over to speak about the horrendous abuse of federal funds by purveyors of higher education, I’d have smashed my way in. But in the crush of people trying to get a look at the Attorney General trying to dismantle a big part of the United States “War On Drugs,” I was reminded that regulating legal education is a small part of what the ABA does — and a part that isn’t of great institutional importance to the organization. The ABA wants a seat at the policy table when it comes to big sexy issues of justice and legal services. Preventing member institutions from price-gouging young people doesn’t get its logo splashed across all the major news networks.

So, Eric Holder delivered a big policy address. And later, by which point I was on a plane, Hillary Clinton spoke about how she’ll be speaking about other things as she doesn’t run for president just yet. Holder! Hillary! Marvel at the ABA’s relevance in national policy debates!

Except, they’re not relevant. Holder did make an important speech on Monday, and he couldn’t have found a more supportive group for his take-down of mandatory minimums had he been speaking to potheads in Golden Gate Park. But really, the ABA isn’t going to be any more helpful when it comes to actually convincing Congress than a meeting of the 4:20 club…

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