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May 24, 2007

Notable HLR casenote urging judicial civil disobedience

A new Harvard Law Review casenote — which is available here and is simply entitled "Ninth Circuit Affirms Mandatory Sentence: United States v. Hungerford, 465 F.3d 1113 (9th Cir. 2006) — urges judges to exercise civil disobedience by failing to uphold unfair sentencing terms.  The note merits a full read, but here is the heart of the pitch:

Federal judges should realize that they all have the power to craft a more just, humane, and cost-effective approach to criminal punishment.  In fact, federal judges are uniquely well-suited to spark a movement against draconian sentencing by telling a credible, knowledgeable, and powerful story.  To ignite and participate in this transformation, judges must step out from their traditionally prescribed roles.

Civil disobedience by federal judges is both justified and required when two conditions are met: first, when an essential contradiction exists between stated ideals and ostensible justifications on the one hand and how people are actually living and actually being treated on the other; and second, when such a contradiction is not likely to be exposed and remedied as effectively by social movements or other means absent judicial intervention.  The ways in which America treats its criminal defendants and its prisoners satisfy both of these conditions, and the Ninth Circuit should have refused to apply the statute. It should have reversed Marion Hungerford's sentence.

May 24, 2007 at 02:59 AM | Permalink


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Tracked on May 25, 2007 2:01:35 PM


I have to say that I can’t stand articles like that. Why? Because smart political hacks (the lawyer kind) fashion their disobedience it legal doctrines that are undetectable. People that blatantly use this kind of language (as judges) are laughed at, and their actions are never effective.

And, this isn’t civil disobedience. There are avenues of appeal open to the parties. Nobody is forcing them to be judges, either.

Posted by: S.cotus | May 24, 2007 8:48:09 AM

Any wonder why so many people think law review articles have lost their relevance?

Posted by: | May 24, 2007 9:22:30 AM

Well, this is a “note.” But, it seems that it is completely useless. There are articles out there that provide good overviews of subjects, or ways to analyze issues. Some student notes are good, because they collect an a**load of cases. This is just law student babble.

Posted by: S.cotus | May 24, 2007 9:33:06 AM

Disgusting. I've always wondered why student notes were often unsigned.

It's basically a manifesto for social activism, with a few suggestions for how judges can help.

Posted by: | May 24, 2007 10:07:02 AM

You all may be right, but I'm far less concerned about students being too idealistic than I am about the hacks sitting on appellate courts who gleefully disobey the Booker remedy opinion to engage in de novo review of sentences and scorning district court judges for giving too much weight to mitigating factors relating to defendants on whom the appellate judicial "experts" never laid their eyes. Those judges invite the same anarchy they exercise themselves.

Posted by: doc | May 24, 2007 10:18:13 AM

Well, Doc, I agree with you there. Some judges have been terrible about Booker, and it is embarrassing to watch. But, since only minorities and poor people are the victims of this illegal conduct (I am going to call it “illegal” because I like the ring of it), people are not outraged.

The problem with this note, as I see it, is that it doesn’t actually exhibit legal reasoning, and therefore doesn’t help anyone.

Let me put it in personal terms that people can understand. The reason many “liberals” feared Roberts is not because he comes off as a political hack. In fact, most people outside of DC never heard of the dude. Nor is he stupid. Even his fiercest opponents call him intelligent and all that good stuff. Nor is he a racist, bigot, or homophobe. (His personal conduct and litigation record have shown that to be true.)

So, the “left” had nothing to fear from Harriet Miers. She was widely regarded as an idiot that got where she was because, at best, she was a grammar Nazi. People figured that on the court she would just glom on to the “strongest” man there (probably Scalia or Breyer) and be a wash for any effort to “reshape” America. (I don’t really know how people want to reshape America, but for purposes of this blog, I think the “right” wants a higher percentage of the country in jail and more people strapped down and killed by a state employee, and the left wants a lower percentage, and NO people strapped down and killed by a state employee.)

What people fear is that he will use his smartiness to construct an intellectually coherent legal regime which happens to follow his so-called “conservative” beliefs. There are, on the other hand, many people on the “other side” that could do likewise. In fact, if there really is a political divide in the country, it is between these two groupes of smarties. The people that make political statements and play politics are useless, because their ideas are usually incoherent, and usually just childish.

This article, unfortunately, is more in the Harriet Miers line of thinking.

Posted by: S.cotus | May 24, 2007 10:56:39 AM

I'm trying to decide whether this Note more accurately captures the arrogance, or the ignorance, of inexperience?

Posted by: anonymous | May 24, 2007 10:33:01 PM

You would think that some HLS prof would have told that students to maybe sounds a little more like a lawyer. I mean, folks like Viet Dinh have urged similar results, but they don't sound like angry teenagers.

Posted by: S.cotus | May 25, 2007 8:29:58 AM

HLR "Recent Case" notes are by and large written by 2Ls. If it was published recently, then it was formulated and drafted in the first semester. Ergo, it was written by someone whose legal knowledge at the time of its conception and composition consisted of one year of basic 1L classes (plus one elective).

Moreover, any 2L on HLR can write a Recent Case note -- everyone gets to write one, and there's no competitive process -- and there is very little substantive editorial oversight (versus technical editing). It's basically a sop in exchange for the backbreaking cite-checking work that 2Ls are forced to do.

The moral of the story: HLR Recent Case notes are basically an 8-page unrestrained exercise in indulgence, and they deserve a corresponding amount of credibility. So don't get too up in arms about this flight of fantasy. If anything, question why Professor Berman would really think the note should be accorded any influential effect.

Posted by: bill | May 25, 2007 11:32:13 AM

If anything, question why Professor Berman would really think the note should be accorded any influential effect.

Doug, do you have a response to that?

Posted by: Orin Kerr | May 25, 2007 2:28:38 PM

Agree with every negative already posted, and why do you think it is notable?

Posted by: ChiLois | May 25, 2007 3:34:00 PM

A few quick responses (along with other thoughts I have at Volokh):

1. No one should infer from any of my posting choices that I think an item I link "should be accorded any influential effect." I post a lot of briefs and articles (and opinions) I do not agree with; this post is one of many in which I am reporting, not endorsing.

2. I think the note is "notable" for many reasons discussed in the comments here and at Volokh. It is notable that these arguments are being made by an obviously smart kid --- and authorized to go into print by a bunch of other smart kids --- in a very high-profile journal. I also get a whiff of a number of HLS professors when reading the notes (e.g., Jon Hanson and Bill Stuntz get a lot of play in the footnotes).

3. Especially because extreme ideas often produce the most new thoughts/comments, I was eager to create a forum for reactions to this "notable note." And I hope they will keep coming here and at Volokh.

4. One last point: I assume everyone would agree that a jury would have the power (though perhaps not be justified) to use its nullification ability to refuse to convict Marion Hungerford upon learning that she would get a 159-year sentence. (Professor Paul Butler, of course, published a well received article in the yale law Review urging juries to refuse to convict in crack cases because of the unfairness of crack sentencing laws.) However, under current law, juries are rarely (if ever) allowed to be told about sentencing consequences. Would this note go down easier if the pitch was that district judges should exercise disobedience by telling juries about possible harsh sentencing consequences?

Posted by: Doug B. | May 25, 2007 10:26:31 PM


Posted by: me | Oct 22, 2008 10:20:09 PM


Posted by: me | Oct 22, 2008 10:21:00 PM


Posted by: me | Oct 22, 2008 10:21:06 PM

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