March 21, 2007
Big retroactivity SCOTUS development?!?
Minutes after I finish this playful SCOTUS post, I discover this thoughtful post at SCOTUSblog entitled "Court to study scope of Teague retroactivity." The report by Lyle Denniston details a notable retroactivity briefing request from the Court. Here are the basics from Lyle:
The Supreme Court indicated on Tuesday that at least some Justices are interested in claims by state prisoners that they should be able to get more retroactive benefit out of U.S. Supreme Court decisions that lay down new rules of criminal procedure. The Court's electronic docket shows an order asking the state of Minnesota to discuss that question.
Here is how the Court phrased its inquiry in the pending case of Danforth v. Minnesota (06-8273): "Are state supreme courts required to use the standard announced in Teague v. Lane, 489 U.S. 288 (1989), to determine whether United States Supreme Court decisions apply retroactively to state-court criminal cases, or may a state court apply state-law or state-constitution-based retroactivity tests that afford application of Supreme Court decisions to a broader class of criminal defendants than the class defined by Teague?" (emphasis added).
In other words, the Court seems prepared to explore (only two decades after Teague) response whether state courts are bound to apply Teague in state-court collateral attacks.
As Lyle details, the Danforth case is focused on a Crawford issue. But, this obviously could become a significant issue in efforts to apply Blakely (or even Apprendi) retroactivity. Indeed, a thoughtful reader e-mail this reaction to this development: "If they take up a Blakely retroactivity case too, then that will pretty much nail down, one way or the other, the state of Blakely retroactivity."
Do the Justices have writer's block? the blue flu? spring (training) fever?
Though much has been made about the Supreme Court's small docket this Term, I am now more intrigued by the slow pace of its decision-making. By the end of March 2005, the Court had produced 37 opinions (including Booker) for OT '04; by the end of March 2006, it had released 43 opinions for OT '05; but so far this term we have gotten only 23 opinion. Moreover, because of the light (and somewhat uninspired) docket, the slow SCOTUS production cannot really be blamed on having to spend a lot of time gearing up for oral arguments. And, my own anecdotal impression has been that, even in the few notable cases that have been decided, not all that much notable has been said by the Justices.
So what gives? Are a few hard cases or a few struggling Justices slowing everything down? Have the Justices adopted a "blue flu" slow-down in productivity to protest being underpaid? Has the lecture circuit been just too much fun to give up for the day-to-day drudgery of proofing a draft opinion?
I am not generally opposed to the notion that "less is more" from the Supreme Court. A 25-page unanimous opinion in Booker likely would have been a lot more helpful to everyone than the 100+ page two-headed monster that the Court produced two years ago. Still, it is hard not to wonder what exactly is going on these days at One First Street.
Helpfully, a double-secret source from inside the Court sent me a copy of today's page from the new Chief's day-planner. I have reprinted below excerpts from CJ Roberts' notes on his schedule for today, and now I better understand what's taking so long:
Excerpts from CJ Roberts' day-planner for Wed, Mar. 21:
6:30am: Get kids up for school, pack Spiderman and My Little Pony lunch-boxes7:30am: Arrive at office; check How Appealing8:30am: Breakfast meeting with Justices to discuss last night's American Idol10:00am: Hear another friggin' habeas case11:15am: Call Bud Selig to remind him I am still waiting for my Nationals uniform12noon: Lunch with Crawford and Greenhouse and Lithwick2:00pm: E-mail federal judge listserve with praise for reduction in law review cites3:00pm: Review spring-training stats and strategy for weekend fantasy baseball draft3:45pm: Snacktime with Justices to discuss what might happen on Lost4:30pm: Color-code NCAA bracket picks to help figure out who to root for this weekend5:15pm: Check How Appealing; post comments on SL&P as S.cotus and federalist5:45pm: Head out to umpire kids' T-ball game
As you can see, this busy schedule does not leave a lot of time for finishing up opinions.
Judges' written testimony to USSC
District Judge Paul Cassell, who serves as chair of the Criminal Law Committee of the Judicial Conference, had forwarded to me the written testimony submitted to the US Sentencing Commission for consideration in its March 20, 2007 public hearing. This written testimony takes the form of a letter that can be downloaded below (and apparently Judge Reggie Walton, who spoke on behalf of the Committee at the USSC hearing yesterday, gave remarks that tracked the points made in the written submission).
Here is the first paragraph of the CLC's written testimony:
The Criminal Law Committee of the Judicial Conference is pleased to respond to the U.S. Sentencing Commission’s Notice of Proposed Amendments, Request for Public Comment, and Notice of Public Hearings for the amendment cycle ending May 1, 2007. While the Committee recognizes that the Commission is considering several important revisions to the guidelines, we would like to focus on one issue that we believe impacts the fair administration of justice. Specifically, the Committee believes that when the Commission is promulgating base offense levels for guidelines used for offenses with mandatory minimums, the Commission should set the base offense level irrespective of the mandatory minimum term of imprisonment that may be imposed by statute.
Reactions to another Ohio execution delay
This local news article provides some background on and reactions to Ohio's inability to proceed yesterday with the scheduled execution of Kenneth Biros because of on-going lethal injection litigation (background here and here). Here are snippets:
Trumbull County Prosecutor Dennis Watkins explained that Biros has requested that a full panel of federal appellate judges hear his claim to rejoin the lethal injection lawsuit. He recently was dismissed from the action on the grounds that his claim was not filed in a timely manner.... "We're disappointed and angry this execution didn't go forward. The claims on the part of Biros are completely frivolous and unreasonable," Watkins said.
The prosecutor said he will now have to wait until the 6th Circuit case and any appeals from that play out before seeking a new execution date for Biros. "This has been frustrating and placed a lot of stress on a lot of people," Watkins said.
Watkins still believes justice will be served. "I'm confident we'll see him executed," Watkins said. "The victims deserve no less and the public deserves to have laws enforced in a timely fashion. The number of appeals is burdensome. It's been 16 years."
Also hoping for justice is [murder victim Tami] Engstrom's mother, Mary Jane Heiss, whose shoulders slumped at the weight of her disappointment. "It hurts me to see my family, especially my kids, in so much pain. I live for them, but I hate to see them suffer," she said, vowing to keep fighting to see that Biros pays for Tami's death.
The irony of Biros' claim is cruel punishment was nearly unconscionable to Watkins. "You want to see cruel punishment? Look what he did to Tami. That is cruel and unusual punishment. The Ohio Supreme Court already ruled that lethal injection can be used. We used to have the electric chair and hangings. There is no painless way to die."...
This AP story provides additional details on some of Biros' other still-pending legal claims and also has more reactions to yesterday's developments:
Engstrom's sister, Debi Heiss, 41, of Hubbard, told The Herald in Sharon, Pa., that members of her family, who spent most of Tuesday waiting for the execution in a hotel near the prison, were furious over the delay. "We just want it to end," she said. "We want to get on with our lives, we want to close the chapter."
Attorney General Marc Dann said he would renew his efforts to have the sentence carried out. "Legal issues aside, I want to express my sympathy and compassion for the family and friends of Tami Engstrom who have been living with the pain of their tragic loss for the past 16 years," Dann said in a statement.
On Tuesday, Biros waited for the U.S. Supreme Court decision in Ohio's death house. When told of the ruling, Biros' mother clasped his hands through the bars of his cell and he thanked God.... Biros also was with a priest when [his attorney] gave them word of the ruling, and two sisters, a brother and a family friend also were at the prison, the attorney said. "There was a lot of crying, a lot of hugging," he said.
Politics still trumping policy in California reform debates
This latest news report on reform development in California highlight yet again that political rhetoric still seems more important than sound policies to California's lawmakers. Here are excerpts:
Legislative Republicans called Tuesday for quick action to resolve the state's prison overcrowding crisis, but they suggested they're ready to throw up a fairly substantial roadblock to Gov. Arnold Schwarzenegger's plan to add more than 16,000 beds to the system.
Appearing at a news conference with his GOP colleagues, state Sen. Dave Cox, R-Fair Oaks, said he could not support any expansion plan unless it also included a method to mitigate the effects that inmate population growth would have on surrounding prison towns. "We frankly think it's inherently unfair for the state of California to dump its prisoners into small rural towns and not consider the adverse affect prisons have on nearby communities," Cox said, citing local issues such as traffic, sewage and schools....
At Tuesday's Capitol news conference, Republicans voiced support for moving inmates into vacant cells they said are available at some private prisons in the state. They also endorsed Schwarzenegger's out-of-state transfer plan, and they said they are adamantly opposed to early releases for any inmates. "There really is no such thing as a nonviolent offender when it comes to the issue of state prisons," said Sen. George Runner, R-Lancaster....
Following the news conference, Ackerman said in an interview that his party opposes a sentencing commission along the lines of the one proposed last week by Sen. Gloria Romero, D-Los Angeles. Her commission would establish sentencing guidelines that could be overturned only by a two-thirds vote of the Legislature. "She's trying to divert power to the sentencing commission," Ackerman said. "And that's the Legislature's purview."
Romero implored the Republicans "to cut the rhetoric" and sit down with Democrats and the governor to work out a plan before three federal court judges contemplating population limits for the state do the job for them. "Let's recognize that we will not get out of this prison crisis by doing business as usual," she said.
Ackerman said legislative leaders and the governor are continuing to try to resolve their differences. An accommodation is all but mandatory by the time the state's first court briefs on legal motions on the population caps are due by the end of this month, Ackerman said. "Things need to be done right now if we're not going to have a catastrophic meltdown in our prison system," he said.
I have seen and heard a lot of heated rhetoric in sentencing reform debates, but I think "There really is no such thing as a nonviolent offender..." may take the top prize.
Sex, death and rock & roll around the blogosphere
Lots of recent stong blog work on various sentencing topics to be found at:
And Sex Offender Issues has a linked video entitled "Man Attacked While Watching Porn" that can provide a mid-week laugh.
March 20, 2007
SCOTUS refuses to vacate stay of Ohio execution
ODPI has been providing on-going coverage of Ohio's efforts to have Kenneth Biros executed today; it now this Supreme Court's order which denies Ohio's application to lift the lower court stay currently in place. This likely means a new execution date will have to be set for Biros, and I suspect that is now not likely to happen until the chaotic on-going 1983 lethal injection litigation reaches some stable resolution.
Meanwhile, as StandDown Texas reports here, Texas is ready to go forward with its ninth lethal injection execution of 2007. Background on the defendant and the crime can be found in this newspaper story.
Some recent related posts:
- The "just ridiculous" realities of Ohio's lethal injection litigation
- Sixth Circuit upholds stay for Ohio prisoner facing execution
- What should Ohio's new governor do about the death penalty?
- Ohio's new Governor issues first clemency denial
UPDATE: This AP story provides a somewhat misleading headline and description of SCOTUS' work here.
Reporting and realities in Fry
Based on this argument preview from SCOTUSblog, today's case argued before the Supreme Court seemed like an interesting legal issue raising habeas and federalism concerns. But this AP report on the argument this morning in Fly v. Pliler, headlined "Court Debates Credibility in Murder Case," makes the case sound like an interesting factual issue raising basic credibility and innocence concerns. I suppose I will just have to read this official transcript to figure out what's really going on.
Reports from the USSC hearing?
As previously discussed here and here and here, the US Sentencing Commission today is conducting a public hearing; this detailed official agenda now links most of the prepared written testimony. I hope any attendees (or participants) might use the comments to this post to report on any notable happenings.
Unfortunately, not (yet?) posted on the USSC hearing page is what Jonathan Wroblewski is saying on behalf of the Justice Department concerning criminal history. I am especially interested in this testimony because Jonathan not long ago co-authored a great paper calling for guideline simplification — R. Barry Ruback and Jonathan Wroblewski, The Federal Sentencing Guidelines: Psychological and Policy Reasons for Simplification, 7 Psych. Pub. Pol. & L. 739 (2001). The USSG Chapter 4 criminal history provisions are, without question, the guidelines most desperately in need of simplification.
Relatedly, NPR yesterday had this audio segment discussing crack sentencing with Marc Mauer based on the (incorrect?) assumption that the USSC hearing was "to discuss revamping tough policies for crack-cocaine offenses." I would be especially eager to hear if anyone speaking officially for the USSC indicates that the Commission is prepared to do something more than just talk about long-needed cocaine sentencing reforms.
E-mails, politics, coups and the need for new leaders
Aided by the disclosure of 3000 e-mails (coverage here), there is so much more grist for the mill in the seemingly endless prosecutor purge story. Of course, as I have indicated here and here, I am less intrigued by all the obvious politics surrounding this story than by the possible real-world fall-out in the day-to-day operation of the federal criminal justice system.
Of course, I am interested to discover some of the intriguing buzz that "it is becoming increasingly clear that Department of Justice insiders have been using the controversy to perpetrate what some Bush Administration loyalists are calling a 'coup'" in order to take down AG Alberto Gonzales. Of course, that buzz says Deputy AG Paul McNulty is behind the coup, while other buzz has both Gonzales and McNulty soon resigning.
I would be eager to hear reader predictions on how this will play out, especially now that, as the AP reports, President Bush is supporting old pal Gonzales. My hope is that we might get a whole new set of leaders at the Justice Department, and ideally folks with some judicial branch experience.
Indeed, here's an idea: how about USSC chair Ricardo Hinojosa for Attorney General and USSC vice chair John Steer for Deputy AG? Not only would they bring a fresh perspective to DOJ, but this could produce a needed post-Booker shake-up at the USSC, too.
UPDATE: Thanks to How Appealing, I've just seen this interesting new piece from The Nation entitled, "The Porn Plot Against Prosecutors." I just knew that porn had to be behind all of this.
Judge Adelman on what constitutes unwarranted disparity
Sentencing Hall of Famer Judge Lynn Adelman issued an an effective little opinion yesterday in US v. McGee, No. 06-CR-140 (E.D. Wis. Mar. 19, 2007) (available for download below), which concludes with this discussion of unwarranted disparity under the Booker regime:
There is a tendency to equate compliance with the § 3553(a)(6) admonition to avoid unwarranted disparity with fealty to the guidelines. See generally United States v. Wurzinger, 467 F.3d 649, 653-54 (7th Cir. 2006) (quoting Boscarino, 437 F.3d at 638) (stating that "in most cases 'disparities are at their ebb when the Guidelines are followed'"). However, courts must be careful, post-Booker, not to reimpose mandatory or near mandatory guidelines under the guise of avoiding disparity. More importantly, § 3553(a)(6) refers only to unwarranted disparity. In my view, a disparity between the sentences of two similarly situated defendants will, under the Booker advisory guideline regime, be unwarranted only if the judge fails to provide sufficient reasons for the difference, grounded in the § 3553(a) factors. See Webster's New College Dictionary 1211 (1995) (defining "unwarranted" as "having no justification; groundless"). Variance from the guidelines alone cannot be equated with unwarranted disparity.
The "just ridiculous" realities of Ohio's lethal injection litigation
This AP article about death penalty doings in Ohio highlights just some of the ugly realities that play out as states deal (poorly) with lethal injection litigation:
Despite a federal appeals court ruling blocking the execution, the state moved forward with plans to put to death a man who killed a woman, mutilated her body and scattered the remains across two states. Ohio prison workers continued preparations for the execution of Kenneth Biros, 48, after the state appealed to the U.S. Supreme Court yesterday, seeking a ruling to allow the lethal injection. By early this morning, the high court had not addressed the matter.
That left standing yesterday's ruling by a 6th U.S. Circuit Court of Appeals panel in Cincinnati that denied the state's request to lift a lower court's order against the execution. The appeals panel said Biros should be able to continue appealing a lawsuit with other inmates arguing that Ohio's method of lethal injection is cruel and unusual punishment.
Biros acknowledged he killed Tami Engstrom, 22, in 1991, but said it was done during a drunken rage. "If this doesn't happen tomorrow, I don't know what I'm going to do," Engstrom's sister, Debi Heiss, 41, of Hubbard, told the Warren Tribune Chronicle yesterday. "I think some words are going to be said that shouldn't be said.… We've waited 16 years, and to be so close is just ridiculous."
Biros was moved yesterday to Ohio's death house at the Southern Ohio Correctional Facility in Lucasville, and prison workers will be ready to carry out the execution as scheduled this morning unless the Supreme Court allows the block to stand, prisons spokeswoman Andrea Dean said.
Biros received a special dinner at the prison about 4 p.m., Dean said. He ordered cheese pizza, salad with Italian dressing, cherry pie, blueberry ice cream, coffee with cream and sugar, Doritos with French onion dip and Pepsi. After eating his meal, Biros met with his mother, two sisters and brother from about 4:30 p.m. until 8 p.m., Dean said....
Other executions have been delayed in the past year because of the lethal injection lawsuit. However, former cult leader Jeffrey Lundgren was executed Oct. 24 despite his appeal.
Here is an abridged list of just some of the Kafkaesque realities now attending the death penalty in Ohio that are indeed "just ridiculous":
- Biros' lethal injection lawsuit now pending before the Sixth Circuit turns on whether death row inmates brought their claims too late. So, based on a dispute over whether Ohio prisoners waited too long to challenge Ohio's execution method, Ohio is likely going to have to wait longer before employing that method to execute Biros.
- New Ohio Governor Strickland postponed a January execution date to provide more time to review Biros' clemency request, and these legal issues surely could have been resolved during this extra two months. But, as is often the case, federal courts waited until the 11th hour to resolve long-pending legal claims, which expectedly increases the emotional distress felt by the victim's family (and also the condemned and his family).
- A murder victim's sister, who has clearly suffered extreme emotional pain for 16 years as a result of Biros' crimes and the capital system's dysfunctions, has no real legal recourse; but murderer Biros, who might suffer extreme physical pain for a few minutes, has federal courts helping to thwart the operation of Ohio's death penalty system.
- Doritos and Pepsi got an extraordinary product placement in the AP story about Biros' "last meal" (which is not likely to be his true last meal). I wonder if Tostitos and Coca-Cola might lobby Ohio's correction officials for equal time when Biros' next (and truly last?) "last meal" is served.
Community supervision debate in Washington state
As evidenced by the Blakely ruling, Washington state is often at the forefront of cutting-edge sentencing issues. And this AP article spotlights that Washington, after a high-profile crime, is now aggressively facing important reentry and community supervision matters. The start of the AP article provides the background:
Gov. Chris Gregoire turned up the heat on the state Department of Corrections Monday, sending a letter to Secretary Harold Clarke requiring that the department implement interim prisoner release guidelines within a week.
The department had set a June 15 deadline for implementing new guidelines, which are meant to give parole officers a clearer idea on when a released felon who violates the terms of his or her release should be sent back to prison. Right now, it's up to the officers' discretion. "I believe a thoughtful collaborative approach to developing these guidelines is essential; however, I also believe public safety demands immediate action," Gregoire wrote.
The department released reports last week that were commissioned by Gregoire after three released convicts were implicated in the deaths of three Seattle-area law enforcement officers in recent months. The reports, written by the Corrections Department and reviewed by the National Institute of Corrections, found that Washington's sentencing statutes are too complex and often conflicting.
The Washington state Corrections Department report can be found at this link, and the last 20 pages of this document includes the report from the NIC to that department. Both reports are great reads for anyone interested in cutting-edge reentry and community supervision issues.
March 19, 2007
Can the USSC's post-Booker data be trusted?
Though I have been (justifiably?) critical of the US Sentencing Commission's substantive work since Booker, I have generally been (justifiably?) complementary of the USSC's data work since Booker. However, this line in footnote 12 in Judge Young's stunning Richardson opinion (basics here) has me worried about whether anyone should put too much stock in even the USSC's data work:
The Sentencing Guidelines statistics for the District of Massachusetts ... are, in actuality, seriously flawed. Through a combination of reporting errors, categorization errors by Commission staff, and the Commission’s obdurate refusal even to look at the opinions, transcripts, and detailed orders that explain actual sentences in this District, the reported departure rate is significantly overstated.
Intriguing testimony for tomorrow's USSC hearing
As discussed here and here, the US Sentencing Commission has a public hearing on tap for tomorrow, Tuesday, March 20. This detailed official agenda now has links to some of the prepared written testimony. And though the USSC seems eager to keep all its discussion of the guidelines Booker-free, some of the linked testimony discusses Booker (and also Claiborne and Rita).
For example, the Justice Department's main representative is to be John Richter, Chairman of the Attorney General's Advisory Subcommittee on Sentencing and the United States Attorney for the Western District of Oklahoma. Here is a notable passage at the outset of his prepared testimony:
But before I address a specific topics [sic], I would like to note that we are at a unique place in the history of the guidelines. At least for the time-being, the guidelines are advisory and while the Department has suggested some possible legislative responses, it is clear that everyone is waiting for the Supreme Court's decisions in Rita and Claiborne. In the meantime, the data that the Commission has collected has helped inform the discussions about the impact of Booker and its progeny.
The Department believes that in establishing the priorities for this year, the Commission correctly focused on some of the larger, systemic questions that are constantly raised, and decided, except as to immigration, to address only those guidelines that have been impacted by newly enacted or amended statutes. In recognition of these Commission priorities, the Department is not seeking increases to the guidelines except in response to specific, newly-enacted, mandatory minimums or where the maximum sentence has been raised — i.e., where it is clear that Congress intended that sentences should be increased. In those instances we have been guided by the principle of proportionality with other existing guidelines.
The latest greatest sentencing opinion from Judge Young
A sharp and helpful reader discovered that Judge William Young of the District of Massachusetts, whose work always captures my attention for various reasons, has today issued an interesting opinion in Richardson v. United States, No. 06-10993 (D. Mass. Mar. 19, 2007) (available here). There is too much in Richardson to summarize, but this introduction provides a flavor of what's inside:
This is a case abounding in irony. It requires this Court, first, to figure out how the First Circuit would handle evidence of ineffectiveness of counsel — not in proceedings at the trial level — but in prosecuting an appeal before it; and, second, to consider whether petitioner Joanne Richardson might benefit from re-sentencing before one of my colleagues.
These issues are not the ordinary grist of the district court mill. Yet, in the strange world of federal sentencing today they must be addressed, notwithstanding the indisputable facts that Richardson's trial and sentencing were utterly free from error and she was afforded greater procedural protections than the First Circuit now considers her due.
Sixth Circuit upholds stay for Ohio prisoner facing execution
As reported by the AP and ODPI, a Sixth Circuit panel has today decided not to lift a stay that Kenneth Biros (who was due to be executed at 10am on Tuesday March 20) obtained as part of the on-going lethal injection litigation in Ohio. Apparently the state is appealing to the Supreme Court, though I'd be surprised if SCOTUS want to get involved now.
You can find the Sixth Circuit's order at this link. Here is the order's full substantive text:
Ohio inmate Kenneth Biros is scheduled to be executed on Tuesday, March 20, 2007. On December 21, 2006, the district court granted Biros a preliminary injunction barring the State of Ohio or its agents “from implementing an order for the execution of Kenneth Biros issued by any court of the State of Ohio until further Order from this Court.” The State has filed a motion to vacate that injunction in this Court. However, as Biros is also an intervenor in the district court in the matter appealed as No. 05-4057, Cooey v. Strickland, decided by this Court on March 2, 2007, and has joined in the petition for rehearing with suggestion for rehearing En Banc, currently pending before this Court, see Cooey v. Strickland, No. 05-4057, – F.3d –, (6th Cir. March 2, 2006), petition for reh’g filed March 13, 2007, this Court DENIES the State’s motion without prejudice. The State can renew its motion, if appropriate, upon resolution of that petition.
Some recent related posts:
Terrific outline of post-Booker law in the Second Circuit
At the Second Circuit Sentencing Blog, Harlan Protass discusses a recent New York City Bar Association CLE program entitled "Federal Sentencing in the Post-Booker Era." Of enduring value, Harlan prepared an outline of significant Second Circuit caselaw for the event and has now made his terrific nine-page outline available at this link.
More grist for the blog-scholarship debate
Today's New York Times has this interesting "Sidebar" column by Adam Liptak entitled, "When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant." (Howard Bashman has the link and thoughtful early commentary comes from Jack Balkin and Orin Kerr and Dan Solove.) The article confirms my instinct and experience that judges find scholarly blogs much more relevant and user-friendly than traditional law review articles. Here are some excerpts:
"I haven't opened up a law review in years," said Chief Judge Dennis G. Jacobs of the federal appeals court in New York. "No one speaks of them. No one relies on them." In a cheerfully dismissive presentation, Judge Jacobs and six of his colleagues on the United States Court of Appeals for the Second Circuit said in a lecture hall jammed with law professors at the Benjamin N. Cardozo School of Law this month that their scholarship no longer had any impact on the courts.
The assembled professors mostly agreed, though they differed about the reasons and about whether the trend was also a problem. Some suggested, gently, that judges might not have the intellectual curiosity to appreciate modern legal scholarship.
Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them. The upshot is that the legal academy has become much less influential.
In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937. Patterns at other leading law reviews are similar....
Even when courts do cite law review articles, Judge Robert D. Sack said at Cardozo, their motives are not always pure. "Judges use them like drunks use lampposts," Judge Sack said, "more for support than for illumination."
The assembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles. "If the academy does want to change the world," Judge Reena Raggi said, "it does need to be part of the world."
To an extent, her plea has been answered by the Internet. On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen. Law professors also seem to be litigating more, representing clients and putting their views before courts in supporting briefs. Law reviews, by contrast, feel as ancient as telegrams, but slower.
Along with the article, the NYT provides this link to the referenced Cardozo Law Review analysis entitled "Trends in Federal Judicial Citations and Law Review Articles."
Some related posts:
UPDATE: Both the Cardozo analysis and the insights of the Liptak article reinforce my perspective that structural forces like new technologies and the unusual "marketplace" in which law professors operate have a lot to do with these trends. I discuss these dynamics in detail in my recent article "Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs."
A model sentence
I cannot resist starting the week with a little glamour by noting this Newday piece reporting that Naomi Campbell begins a community service sentence today:
Supermodel Naomi Campbell is known for her fashion poses on the catwalk, not her cleaning skills. But for five days, beginning Monday morning, Campbell can expect to push a broom or a mop at a Manhattan garage to fulfill her sentence of community service for throwing a cell phone at her maid.
Unlike the singer Boy George, who had to served a similar community service sentence in full view of TV cameras, the sentencing judge allowed Campbell to be assigned to work indoors.... While community service has been employed in U.S. courts for decades, the punishment has gained a higher profile after the celebrity sentences. Television cameras were on the scene when Boy George found himself using a broom and wearing a reflective orange vest as he swept a driveway at a Sanitation Department depot....
Besides community service, Campbell was ordered to pay the maid's medical expenses and attend a two-day anger management program.