Sentencing Law and Policy

An Independence Day open thread seeking comments on liberty and freedom in the US

Blogging has been light this holiday weekend as I have been enjoying sun, family, fireworks, tennis, golf and lots of company (not necessarily in that order). But the morning of July 4 gets me to my computer for a few minutes to link to my prior Independence Day blogging and to urge readers to use this space to comment on the state of liberty and freedom in the United States.

Prior July 4 posts:

• 2010: Celebrating our declaration of rights to "Life, Liberty and the pursuit of Happiness"
• 2009: What to the American imprisoned is the Fourth of July? 
• 2008: Celebrating liberty in the country leading the world in incarceration rates
• 2007: House hearing planned to examine Bush commutation
• 2006: A holiday retrospective on Blakely fireworks
• 2005: Celebrating liberty, Blakely-style

In Massachusetts to talk about federal sentencing at my alma mater

I am about to go off-line for the day because I have the pleasure of spending the afternoon and evening in (rainy) Cambridge, Massachusetts because of a kind invitation to participate in an event organized by the Harvard Law School Chapter of the American Constitution Society."  Here is the official event announcement:

Tuesday at 7PM in Ropes Gray (Second Floor of Pound Hall) at Harvard Law School:

Judge Nancy Gertner & Professor Douglas Berman

 on

“The New Sentencing Regime — Or Not!”

Come join two amazing speakers for dinner and a conversation about the future of sentencing in the federal system, touching on issues ranging from the crack/cocaine-powder disparity to child pornography, immigration, and white collar crime.  Judge Nancy Gertner is one of the nation’s leading progressive district judges and will join the HLS faculty next fall as a Professor of Practice.  Professor Douglas Berman, HLS ’93, maintains the Sentencing Law and Policy Blog, edits the Federal Sentencing Reporter, and regularly participates in high-profile sentencing litigation throughout the country.

I think this event is open to the public, so if you are in Cambridge and want a sentencing-related excuse to get out of the rain, head up Mass Ave this evening.

For those listening to the federal sentencing AFDA web program today...

apologies for the technical glitch.  Apparently, too many people tried to sign on to the program at once, and we managed to crash the Adobe server (which said it could handle 500 folks).  I am flattered to discover more than 500 people tried to log-on hear what I had to say with the help of the AFDA, but I am really sorry that we got cut offjust over half-way into the 90 minute program.

Thankfully, the folks at AFDA are going to put this program together again next week so I can finish discussing all topics we had planned to cover.  As of this writing, the plan is to try again next week (Wednesday, Feb. 23) at 12noon EST.

Welcoming "Law and Biosciences Daily Digest" to the blogosphere

I am extremely pleased to see that Professor Nita Farahany has started this great new blog which is to provide "relevant summaries of legal opinions (civil and criminal) in which cognitive neuroscience or behavioral genetics evidence has been introduced."  As Nita notes here, in recent years "at least 2-3 opinions per day are published in which cognitive neuroscience or behavioral genetics evidence has been used."

I will be checking this new blog regularly, in part because the headings from many case digest entries spotlight that a lot of this action has sentencing elements:  "Brain Dysfunction and Capital Mitigation" and "Neuropsychological Testing, Civil Commitment, and Sexually Dangerous Individuals" and "Brain Dysfunction and Cruel and Unusual Punishment."

Spending the day at John Jay...

in the Big Apple to participate in the 6th Annual H.F. Guggenheim Symposium sponsored by The Center on Media, Crime and Justice at the John Jay College of Criminal Justice.  I suspect I will be off-line most of the day, but I hope to get a chance to blog about the event upon my return home tonight.

UPDATE:  A liveblog summary of the great activities as this event yesterday can be found on this page at The Crime Report.

Supreme Court Justices are now doing reading on iPads and Kindles, when will law students?

The question in the title of this post is prompted by this new video from a portion of a C-SPAN interview with new Justice Elena Kagan. The video is titled "Justice Kagan on Using a Kindle to Read Briefs," and in the segment Justice Kagan reports on how she uses the Kindle to read all the SCOTUS briefs, and also discusses that Justice Scalia has his briefs on an iPad. (Hat tip: How Appealing.)

In a series of posts about technology and legal education over at the blog Law School Innovation (where I am cross-posting this post), I have suggested that the advancement of new reading technologies will at some point transform legal education. I articulated the point this way in this post after first seeing the iPad in action earlier this year:

[A] casebook-friendly e-tablet is only the tip of the new media iceberg that could be facilitated by an iPad or some other tablet that becomes to casebooks what the iPod became to vinyl records.  Of course, just as record companies (and some artists) resisted music being packaged and distributed via new media, casebook publishers (and some authors) may resist legal materials being packaged distributed via new media.  But, as the iPod and the DVR and other digital innovations have demonstrated, a better means to distribute content digitally will eventually prevail over analog precursors.  The iPad may not prove to be the casebook tipping-point technology, but it seems to me to be only a question of when, not whether, the traditional casebook will go the way of vinyl records and VCR tapes.

When traveling to speak at various conferences, I have noticed more and more lawyers with iPads and other e-readers. I expect that buzz about the Justices reading briefs on e-readers might add even more juice to the on-going digital revolution in the collection and distribution of legal materials. And if law schools do not get with the program soon, I fear we will be doing even worse than usual in training the next generation of lawyers.

Though this post fits better at my Law School Innovation blog, I have cross-posted it here because I am eager to hear from practitioners about their use of technology (and whether there are any particular technologies that a criminal law professor ought to make the focus of more student instruction). In addition, I have to assume that it is only a matter of time before we have a federal sentencing guidelines app.

SL&P honored again by ABA Journal's list of Blawg 100

I am once again very pleased and very honored to report that this blog has once again been selected as one of the ABA Journal's Blawg 100.  I am grateful that ABAJ's annual list of the best of the blawgosphere has included this blog every year now for four years running. Here is how the ABA Journal describes my blog this year in its Criminal Justice category: "Ohio State University law professor Douglas Berman posts several times a day, keeping 'sentencing fans' updated on the latest news stories, commentary, cert grants, rulings, argument transcripts, research and scholarship on criminal penalties." That sounds about right.

Here is how the ABA Journal, which again has devoted its December cover story to the blawgosphere, describes its latest listing of top law blogs:

In our 4th annual Blawg 100, we organized a bit differently and created some new categories.  Yet we know that many blogs defy categories.  We have a "lighter fare" grouping, but you can find witty and funny blogs in any category.  More of our readers had a hand in the selections this time around: We received more than 1,250 blawg amici, or friend-of-the-blawg, nominations; you'll see some of the testimonials on the pages that follow.  This year, more bloggers embraced Twitter, though law profs are trailing the pack.

In addition to thanking the ABA Journal for giving me this honor each year, I want to again thank all the readers and commentors who always (and in various ways) help me find the energy (and often the insights) to keep this blog going. I genuinely believe I remain energized to maintain this blog largely because I so greatly enjoy the engagement, and still learn so much, from readers and commentators concerning the array of topics I discuss.

Off to DC to participate in ABA's "Sentencing & Reentry Institute and Criminal Justice Legal Educators Colloquium"

I am closing out a exciting (but really long) week by heading inside the Beltway this evening in order to attend and participate all day tomorrow in the the American Bar Association's "Third Annual Sentencing & Reentry Institute and Criminal Justice Legal Educators Colloquium."  All the details of this amazing event can be found in this brochure, and I am hoping to learn some blog-worthy stuff while in DC.

Because I have never been very good at that whole live-blogging thing, I doubt I will have many posts about the conference until the weekend. But I am expecting to have some new insights on how the new post-election political landscape might impact directly sentencing law, policy and practice in the months ahead.

New blog examining the "intersection between criminal law and emerging technology"

I am pleased to learn about this new blog, intriguingly named "Stockycat," which is "focused non-exclusively on the intersection between criminal law and emerging technology" and says it is "[d]edicated to the idea that effective law enforcement is not incompatible with a vigorous interpretation of the Fourth Amendment."

Among the many notable features of this new blog that makes it worth watching is the public policy AND government lawyer AND prosecutorial background of its author, Joshua Engel.  Here is how the author describes his background on this blog:

I am a Fellow with the Ohio State Bar Foundation. In addition, I have been honored as a recipient of a Harry S Truman Scholarship for Public Service.  I recently served as Chief Legal Counsel for the Ohio Department of Public Safety.

Prior to joining the Department of Public Safety, I was one of the most respected and successful felony prosecutors in Ohio.  In 2007, my work as a prosecutor was recognized by a Meritorious Service Award from the Ohio Prosecuting Attorneys Association.

I began my career as a prosecutor by serving under current Massachusetts Attorney General Martha Coakley in Middlesex County, Massachusetts.  I started my legal career at Choate, Hall & Stewart, a large Boston law firm. 

Though the blog seems focused at the start on Fourth Amendment issues, I am hopeful that we will before long see posts about GPS tracking of released offenders and/or internet restrictions as a form of punishment and/or restitution as a punishment simply for downloading child porn and/or any of the many other sentencing law and policy issues that arise at the "intersection between criminal law and emerging technology."

Is blogging now officially a "mainstream medium"?

The question in the title of this post is inspired by this new piece in The National Law Journal, which is headlined "Law School Report: A look at professors who have made blogging a mainstream medium." I am flattered and honored to be included among the impressive list of lawprof bloggers profiled by Leigh Jones in the article, which starts this way:

Somewhere between fusty law treatises and Twitter lie law blogs, many of them written by the top legal scholars in the country.  Just five years ago, the notion of law professors delivering quick and cogent commentary to the masses — with the opportunity for instant feedback, no less — was a novel concept.  Today, it is rare for law schools not to have at least two or three professors on faculty who regularly tap away at their blogs, often with their morning cup of coffee or after they've put the kids to bed at night.

The National Law Journalhas profiled some of the pioneers in law blogging. Their online endeavors keep readers current on topics ranging from Sixth Amendment rights to tax law, from faculty appointments to securities fraud.  Their work has given legal scholars a greater voice in the public forum and brought recognition to the schools they represent.

I ask the question in the title of this post because I am wondering if I now need to consider myself part of the MSM.  To quote a great Seinfeld episode, "Not that there is anything wrong with that."

A comment on comments

One of my favorite real-world lawyer readers, who is also one of the most thoughtful and helpful commentors, wrote me this note via e-mail today:

Doug, is there anything you can do to eliminate comments from folks who are deterring participation on the blog?  I have no enthusiasm to make a comment, knowing that some vitriolic attack will follow.  Bummer, your blog is some of my favorite reading.

I trust the few bad apples that are spoiling the comments for other members of the bunch will make a real effort to play at least a bit nicer in the comments.  I have very little interest in (and even less time to) police what gets said in the comments, and I know from experience that the comments can and should be a useful (and enjoyable) aspect of this blog.  

I am hopeful that this comment will encourage a bit more civility in the comments.  Also, I urge readers to consider using the comments to this post to express their take on whether and how the comment section of this blog adds or detracts from their reading experiences.  If lots of folks say that open comments do more harm than good, I can and will shut off the blog's comment feature.

Thanks, (slow) readers, for helping to make this blog among the very "stickiest"!

To understand what the post title means, check out this post and the law prof blog rankings from Paul Caron at TaxProf Blog.  And I am really grateful for all my readers (whether they read slow or fast), and also for all the commentors and those who send me materials to ensure I continue to enjoy very much being "stuck" with this blog.

So much going on today...

I am a bit overwhelmed.  My day will be consumed with the US Sentencing Commission conference in New Orleans (basics here).  But I have a nagging feeling that the Supreme Court will do something notable this morning that will draw me back to the computer at some point before the day is out.  (SCOTUSblog is, of course, the place to keep up with what the Justices do today.)

And, of course, tonight we have the rare event of a NBA Final's Game 7, and the US Open gets going at Pebble Beach.  My cup runneth over. 

Predictions, anyone?

"[M]ost law reviews are simply a waste of trees"

The title of this post (which is cross-posted at LSI) comes from the last phrase of this amusing and effective commentary by Professor Gerald Uelmen in the June 2010 issue of the California Lawyer.  (Hat tip: C&C.) The piece is titled "The Wit, Wisdom, and Worthlessness of Law Reviews," and here are a few snippets:

During California's legal "golden era" of the Gibson and Traynor Courts in the 1950s and '60s, law reviews were cited with increasing frequency. In a classic study of the authorities cited in California Supreme Court opinions, Stanford law professor John H. Merryman counted 164 law review citations in the court's 1970 opinions, a "sharp increase" over previous years (Merryman, "Toward a Theory of Citations," 50 S. CAL. L. REV. 381 (1977)).

I did my own count recently of the California Supreme Court opinions published during the past five years that relied on law reviews as authority: There were just six.  This despite — or perhaps because of — the fact that law reviews have tripled in number since the 1970s.  The 20 ABA-accredited law schools in California now publish a total of 82 law reviews. UC Berkeley's alone publishes 14, while Stanford and UC Hastings each publish 9.  Both law professors seeking tenure and law students seeking employment at elite law firms eagerly fill these volumes.  But who reads them now? Surely not the judges who decide the law. And not practicing lawyers either.

As Adam Liptak of the New York Times observed a few years ago, "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."...

Of course, there are still a few law professors who would rather publish for practicing lawyers and judges than just for other professors. But given the way the academic game is played these days, they do so at their peril — particularly if they are seeking tenure. Still, law reviews are in no danger of disappearing anytime soon.  After all, big law firms and elitist judges continue to demand "law review experience" as a prerequisite for hiring.  The publication of student notes also provides a vehicle to enhance badly needed writing skills for barely literate law students.  But in terms of contributing to the profession, most law reviews are simply a waste of trees.

To put a little sentencing spin on this effective attack on modern law reviews, I wonder how many of the "20 ABA-accredited law schools in California [that] now publish a total of 82 law reviews" have produced articles discussing the dysfunctionality of California's state sentencing system or the profound legal issues that surround its long-lasting prison over-crowding problems.  I know of a few strong "local" pieces on California's three strikes law and other local topics, but not as many as are justified or needed for the legislators, courts and practitioners struggling daily with these issues.

As readers of this blog know, there are an array of interesting and important (and theoretically sophisticated and challenging) issues surrounding California's sentencing law and policy that merit extended and repeated coverage in law reviews.  And I am proud to note that one of the law reviews that I edit, the Federal Sentencing Reporter, has this new issue on "California's Corrections Crisis."  I am thus glad that Professor Uelmen says only that "most" not "all" law reviews are a waste of trees.  (And, of course, no trees were killed or even hurt in the production of this blog post.)

Does anyone have any experience with the BlogWorld conference?

I just got an e-mail inviting me to take advantage of early bird registration for the 2010 BlogWorld & New Media Expo and Conference taking place this October in Las Vegas.  Since I am always eager to have an excuse to go to Vegas and since I am also eager to figure out a way to take my law blogging to another level (whatever that means), I am thinking seriously about trying to make it to this event.

I am a bit concerned, however, that this BlogWorld event may be more geared to techies and others more interested in marketing than in content creation and dissemination.  Consequently, I am posting here (and in some other blog locales) this bleg for information and feedback on the BlogWorld experience.  Relatedly, I filled out a form to offer to be a speaker at the BlogWorld event (which would make registration free and likely could have other benefits), and I would love to hear from anyone as to whether trying to speak at this event sounds like a sensible idea.

Going back, going back...

Among the many reasons I have been pleased with the last thee Supreme Court nominees is the interesting common fact that they all graduated from Princeton University, which just happens to all be my alma mater.  Indeed, I am very soon to be going back to Old Nassau for a long weekend of festivities.  Though I hope to be on-line every so often, blogging will likely be light until Tuesday.

I have the honor to be on an Alumni-Faculty forum panel on the topic of "Civil Liberties in the Obama Administration" taking place starting at 10:30am on Saturday, May 29 in McCosh 28 on the Princeton University campus.  I plan at that forum to continue complaining about President Obama's failure to make any use of his historic clemency powers and to lament more generally the very little amount of "hope and change" that the Obama Administration has so far brought to modern federal criminal justice system.

Rumor has it that Mrs. Michelle Obama, who this year is due to celebrate her 25th reunion from Princeton University, is not making it up to New Jersey to join in the traditional Princeton reunion festivities.  Too bad, as I was eager to see what it would be like to see members of the US Secret Service marching in the (in)famous P-rade.

Great coverage of sentencing issues at FAMM's new blog, SentenceSpeak

I am pleased to seem that the folks at Families Against Mandatory Minimums have their new blog, SentenceSpeak, up and running and it looks like it is on a steady path to being a daily must-read for all sentencing fans.  As described to me by one of the progenitors, FAMM's goal "is to create a forum where we can talk about mandatory minimums and other sentencing policies and invite others to participate in that discussion ... and to reach out to people who may know nothing about sentencing, or who may be 'unlikely allies' in the sentencing reform effort."  

Here are links to some of the interesting early posts on this new blog:

• Where's the Clemency, Mr. President?
• Stupid is as California Does
• Court Rejects Prosecutors End Run Around Jury
• Sentencing Nerds Unite!

Blogging's virture (and partisanship's vice) given the value of "ideas having sex"

This terrific piece in the Wall Street Journal, which is headlined "Humans: Why They Triumphed," provides an enjoyable and stimulating read. The piece is full of fascinating ideas about human progress and intellectual evolution, while also coining my latest favorite term "ideas having sex."  Here are snippets from the start and end of the piece that showcase its key ideas:

Human evolution presents a puzzle. Nothing seems to explain the sudden takeoff of the last 45,000 years — the conversion of just another rare predatory ape into a planet dominator with rapidly progressing technologies. Once "progress" started to produce new tools, different ways of life and burgeoning populations, it accelerated all over the world, culminating in agriculture, cities, literacy and all the rest. Yet all the ingredients of human success — tool making, big brains, culture, fire, even language — seem to have been in place half a million years before and nothing happened. Tools were made to the same monotonous design for hundreds of thousands of years and the ecological impact of people was minimal. Then suddenly — bang! — culture exploded, starting in Africa. Why then, why there?

The answer lies in a new idea, borrowed from economics, known as collective intelligence: the notion that what determines the inventiveness and rate of cultural change of a population is the amount of interaction between individuals.  Even as it explains very old patterns in prehistory, this idea holds out hope that the human race will prosper mightily in the years ahead — because ideas are having sex with each other as never before....

There's a cheery modern lesson in this theory about ancient events.  Given that progress is inexorable, cumulative and collective if human beings exchange and specialize, then globalization and the Internet are bound to ensure furious economic progress in the coming century — despite the usual setbacks from recessions, wars, spendthrift governments and natural disasters.

The process of cumulative innovation that has doubled life span, cut child mortality by three-quarters and multiplied per capita income ninefold — world-wide — in little more than a century is driven by ideas having sex.  And things like the search engine, the mobile phone and container shipping just made ideas a whole lot more promiscuous still.

Though this WSJ piece can be assessed and explored in many ways, my first follow-up thoughts produced the title of this post.  In light of this provocative article, I would contend that a chief virtue of sophisticated blogging (and maybe even unsophisticated blogging) is that it provides a convenient setting and cost-effective means for ideas having sex.  Relatedly, I would contend that a chief vice of partisanship and group-think is that it can impede ideas from having sex (and can make it seem politically unsafe for ideas from warring factions to have sex).  Continuing the sexual metaphor, I may start calling blogging Viagra for ideas (and start calling partisanship idea VD).

Some commentary from around the blogsphere on Comstock and Graham

Cruising around the blogsphere has reveals this array of early commentary on the Supreme Court's criminal justice work in Comstock and Graham today:

• From Concurring Opinions, "Graham v. Florida – Collapse of Capital-Noncapital Distinction?"

• From Crime & Consequences, "Graham: The Bad News and the Really Bad News"

• From Gits for Breakfast, "For once, Texas Lege ahead of SCOTUS curve: Juvie LWOP abolished"

• From SCOTUSblog, "Analysis: A limited break for juveniles; Graham v. Florida, Opinion recap

• From Sex Crimes, "United States v. Comstock: Some Early Observations"

• From WSJ Law Blog, "Scotus: The Kids Are Alright (So Let Them Have Parole)

And a bunch of different folks at The Volokh Conspiracy already have all this commentary to share on Comstock:

• Preliminary Thoughts on Comstock (from Randy Barnett)
• A Few Thoughts on the Comstock Case (from Eugene Volokh)
• Bad News for Federalism? Some Preliminary Reflections on Comstock (Ilya Somin)

New blog with "open source sentencing pleadings" for white-collar cases

An old colleague I have come to know from various sentencing settings, Benson Weintraub, has launched this new blog to provide open source access to his "favorite presentence and appellate pleadings" as well as "legal and social commentary on white-collar crime." Readers will not be surprised to know that I am a big fan of lawyers providing effective access to legal materials, and I encourage everyone to check out this new blog (and perhaps consider starting others).

Post number 10,001 of this blog...

will apparently be this post noting this this is my 10,001 post since starting this blog just under six years ago with this first post on May 14, 2004.  That first post concerned the then-new report issued by the commission created by then-Massachusetts Governor Mitt Romney concerning how to try to create a nearly "foolproof" death penalty system for the state. 

As the early archives of this blog show, my initial plan for this space was to do just a few posts each week with links to new reports and articles that did not get much attention (and were hard to find) elsewhere.  In fact, over my first six weeks of blogging, I averaged only three posts per week, and only two of my first 18 posts referenced a court ruling (one of which was this post speculating about a possibly big pending SCOTUS case).

But six weeks into this blogging experiment, the Supreme Court handed down its remarkable Blakely ruling, and this blog took a more manic (and case-centric) turn.  Perhaps fittingly, I am noting a blogging milestone one post later than I expected because I had to give my 10,000th post to announcing the official retirement of whom I regard to be perhaps the "greatest" sentencing Justice of all time.

Just bought an iPad...

in order to discover how blog friendly it will be. I probably won't get a chance to use it until Sunday, but will file a blog report.

UPDATE:  I am disappointed to discover that the ability to pick up a weak WiFi signal is not very impressive on the iPad.  Therefore, until I get back to a WiFi friendly location on Monday, iPad blogging will have to wait.

Not-quite-random mid-day blogger/tech comment

It has taken me only a few minutes to decide that I now want and need an iPad, though I am fearful (or perhaps hopeful) that the new Apple gizmo will be much better for reading blogs than for writing them.

Also, I am also already thinking about whether an iPad and other forthcoming like technologies might alter the resource and technology universe for lawyers, law professors and law students. 

I have never tried to do any kind of legal research or legal writing on my Droid smartphone, and I suspect that there are relatively few smartphone apps that are truly helpful to the average lawyer or law student.  In addition, I have been disappointed by the potential for my first-generation Kindle to be a means or medium for me to do professional reading of cases and other legal materials.  The Apple folks are touting the iPad as having some of the best aspects of modern e-readers and modern netbooks.  If this is true, I can readily imagine the possibility of an iPad with applications that are especially lawyer-friendly and lawyer-useful.

Thoughts, dear readers?  Is anyone (other than me) eager to read this blog on an iPad?

Welcome to the blogosphere the "Prison Law Blog"

A law and history student at Stanford sent me this note about Prison Law Blog, a new blog that she has started:

I remember reading a post on your blog a while back in which you encouraged more bloggers to start narrowly focused criminal justice related blogs, and I have decided to focus on jail and prison reform efforts (e.g., legislation, conditions of confinement lawsuits, prisoners rights campaigns, etc.).  Although there are now many very useful and well-done criminal justice related blogs already out there, I am hoping that this is a specific area where more focused blogging might be of interest.

For now the posts are mostly links (with some commentary), but in the future I am hoping to add more original content including updates on prison reform litigation and legislation around the country, and Q & A features with lawyers who work in this field.

Huzzah and welcome!

Off to the Big Apple

As the Supreme Court gets back in action today, so too do most law school semesters.  And this Spring, I am a visiting professor at Fordham Law School in NYC.  I hope to find time to blog about a few sentencing issues specific to the Big Apple, though I doubt my work in this cyber space will be nearly as different as my work in real space over the next few month. 

Will any new electronic device be especially blog-friendly?

I am going to go off-topic just a bit to seek reader reflection on whether any of the new and in-development mobile electronic devices seem especially blog-friendly for blog authors and blog readers.  I love both my (first-generation) Amazon Kindle and also my new Droid, but neither device makes blog posting easy or enjoyable.  And though I can read others' blogs on both devices, I also much prefer blog reading on a traditional PC.

Thus, as I read this new New York Times piece headlined "A Deluge of Devices for Reading and Surfing," I find myself particularly interested and concerned about whether any new form of electronics will be distinctively blog-friendly.  Here is the start of the NYT piece:

You’ve heard of Amazon.com’s Kindle. And you probably know that Apple is likely to introduce a tablet computer this year. Soon you may also be hearing about the Alex, the Que proReader and the IdeaPad U1 Hybrid.

Those products are part of a new wave of slender touch-screen tablets and electronic reading devices that dozens of companies, both well known and unknown, brought to the Consumer Electronics Show in Las Vegas this week.

Some of these gadgets allow people to read for long periods of time without eye strain and without killing the batteries.  Others focus on allowing their owners to surf the Web, watch video and play casual games without being tethered to a bulky laptop and its traditional keyboard.

“There are a billion and a half Internet users on the planet today, and a lot of them are primarily using it for entertainment and social networking,” said Glen Burchers, director of global consumer segment marketing at Freescale, a chip company hoping to power the new tablets.  “The PC does a good job on a lot of things, but it’s just not the ideal device for surfing the Internet or reading.”

Perhaps because I am old and have a status quo bias, I do think it is the case that the PC right now is the best way to both write and read blogs.  But perhaps readers have others experiences, and I hope folks will share thoughts on this tech-topic.

Could commentor Supremacy Claus really be . . . Ralph Nader?

I am pretty sure the answer to the question in the title of this post is "no," though this new piece in The Connecticut Law Tribune perhaps suggests that a (too) frequent commentor on this blog and famed activist Ralph Nader have more views in common than one might readily assume.  The article is headlined "Ralph Nader Calls Out Legal Profession," and here is how it begins:

A University of Connecticut School of Law moot courtroom was a fitting setting last month, as consumer activist, politician and lawyer Ralph Nader sought to put the legal profession on trial.

Warrantless eavesdropping, the war in Iraq, corporate wrongdoing -- Nader is a man with quite a few bones to pick. But his chief complaint was that America's lawyers have done too little to stand in the way of government policies he labeled unconstitutional. He noted the strong reaction of Pakistan's lawyers last year when that country's leader threatened the integrity of its justice system. "Did you see our beloved profession up in arms here?" Nader asked. "Lawyers in Pakistan were marching. Where were our lawyers?"

The UConn law school chapters of the ACLU and the National Lawyers Guild brought Nader, a Winsted native, to Hartford. The event drew roughly 100 law students, as Nader urged future jurists to observe a duty beyond zealous representation of their clients. "A lawyer's role is to look out for the administration of justice," he said.

Nader placed much of the blame on America's system of legal education, which he said has spent too much time teaching substantive law and too little encouraging students to think critically about why the law is what it is.

This last sentiment which I have highlighted seems quite similar to a key theme in many of Supremacy Claus's (too) frequent rants.

Orin Kerr gamely (and finally) admits that blogs can be legal scholarship

Way back in 2006, I had the joy of participating in an exciting conference at Harvard Law School entitled "Bloggership: How Blogs Are Transforming Legal Scholarship."  The papers for the conference, which were all absolutely fascinating, can still be accessed here.  In my contribution, which was titled "Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs," I made the argument that blogs can be a new and useful form of legal scholarship.  But Orin Kerr was part of a group of "traditionalists" who contended that, though valuable for other purposes, blogs were not (and should not be seen as) a form of legal scholarship.

I remind everyone of this history of blogs as scholarship debate as a prelude to linking to Orin's new post here titled "Rethinking Blogging-as-Scholarship." Here is part of Orin's game admission of a (partial?) change of heart:

Fast forward to the present, and I now think my old self was wrong.  Or at least a bit off.  I now think blogging actually does provide an effective way to present new scholarly ideas in many cases.  In this post, I want to explain why my view has changed.

The main reason my view has changed is that I think the legal academic culture has changed.  In the past five years, legal blogs have become an acknowledged and accepted part of the world of legal scholarship.  Exactly why is open to debate. It might be because more law professors are blogging. It might be because our experience has been that what profs say on their blogs is usually the same as what they say in their articles.  Perhaps the new online journal supplements have blurred the traditional paper-vs-on-line distinction.  Whatever the reason, there seems to be more of a convergence between scholarly blogging and “traditional” law review articles today than existed 4 or 5 years ago.  That convergence encourages more scholarly blogging and recognizes its value.

Citations in the Westlaw JLR database are an imperfect metric, but they tend to confirm the change.  Consider the number of times that the phrase “Volokh Conspiracy” and/or “volokh.com” appeared in the database.  (Usually, although not always, these phrases reflect a citation to a particular post appearing in a law journal.)   In 2005, the phrases appeared 24 times in the JLR database. The year 2009 isn’t over yet, with roughly 20–30% of issues schedule for a 2009 publication not yet out and on Westlaw.  Still, the phrases have appeared 108 times so far in the JLR database.  That’s a lot of cites.  Out of curiosity, I did a quick check of my own citations — vain, sure, but at least to an interesting end — and I would estimate that about 25% of the citations to my own work in the last year have been to my blog posts rather than traditional journal articles.

In short, I think we’re seeing a shift in how law professors and legal journal editors view blogs. The old lines have blurred.  Blogs have become a significant part of the scholarly conversation.  I didn’t expect this to happen, at least so soon. And I don’t know whether the trend will continue.  But I think the trend is a real one.

The commentors to Orin's post usefully note that it seems what has really changed is how blogs are perceived as much as whether this medium of expression has changed.  Thus, I will stick to my view that thoughtful blogs always were (or could be) a form of scholarship, just like any other form of communication can be a form of scholarship if deployed effectively to that end.

Though I share Orin's sense that the perception of blogs have evolved in recent years, I have been largely disappointed that blog technology has not advanced much to better enable blogging to serve as a truly sophisticated and effective academic medium.  In my "Scholarship in Action" article, I urged the development of new forms of on-line collaboration like wikis and other means to further improve on-line legal idea development, but such technologies have been slow to take hold.  Instead, society has been drawn to short-attention-span on-line media like Facebook and Twitter, neither of which seem capable of supporting the thoughtful and in-depth development of ideas that are often an essential aspect of true scholarship.

SL&P honored again by ABA Journal

I am pleased and honored to report that this blog has once again been selected as one of the ABA Journal's Blawg 100. The ABAJ's annual list of the best of the blawgosphere appears in the December issue of the magazine, and is available online at this link.  Here is how the ABA Journal kindly describes this blog: "A perennial favorite, Sentencing Law and Policy doesn’t disappoint. Ohio State law prof Douglas Berman offers daily sophisticated reviews of cases in the news and headed for the spotlight."

In addition to thanking the ABA Journal for giving me this honor now for the third year in a row, I also want to thanks all the readers and commentors who keep helping me find the energy (and often the insights) to keep this blog going.  I doubt I would have expected to still be blogging so much five years after Blakely and Booker first made this space so exciting; it is quite clear to me that I now maintain this blog largely because I greatly enjoy the engagement, and learn so much, from readers and commentators concerning the array of topics I discuss. 

Trying out the Droid

I got a new toy today: the new Droid phone. And this post is a test of Droid-blogging.

Blogger being prosecuted for threatening judges gets transfer and restricted bail

This new article from the National Law Journal, which is headlined "Blogger Charged With Threatening 7th Circuit Judges Gets Home Confinement," reports on the latest developments in a notable federal criminal case:

U.S. District Judge Donald Walter has ordered the release of Internet blogger and Web talk show host Hal Turner, who was arrested in June for declaring in an online posting that three Chicago-based federal judges "deserve to be killed."

Turner is on his way back to his home state of New Jersey after Walter decided in a Wednesday conference call meeting with lawyers that Turner could be released under "strict conditions," including a prohibition on his speaking to the media, home confinement and electronic monitoring, said Michael Oroczo, who represents Turner. He said his client was currently in the U.S. Marshal Service's custody in Oklahoma City as he's being transferred to New Jersey....

The release order by Walter, a U.S. district judge from Western Louisiana who was assigned the case to avoid potential bias, runs counter to a decision made last month by Chicago-based U.S. Magistrate Judge Martin Ashman, who found that Turner should remain in custody until his trial. It's not clear if a bond amount was set for the release.

Turner was charged by the U.S. Attorney's Office in Chicago with threatening to assault and murder three judges in retaliation for a June 2 decision they made. In a Web posting the same day, Turner called the 7th Circuit ruling, which declined to overturn laws banning handguns in Chicago and a nearby suburb, an "outrage" and said that the judges behind the decision "deserve to be killed." The judges who decided the case were Chief Judge Frank Easterbrook, Judge Richard Posner and Judge William Bauer. In a second posting on June 3, Turner provided the names, work addresses, phone numbers and photos of the judges.

Walter last week also allowed Turner's case to be transferred to the Eastern District of New York, granting his request for a change of venue from Chicago to Brooklyn. Walter granted the venue change partly because he agreed the defendant would have a harder time getting a fair trial in Chicago where there was significant media coverage of the 2005 murder of U.S. District Judge Joan Lefkow's mother and husband.

Turner said in his postings that federal judges in Chicago hadn't gotten "the hint" from those killings. "Memories are not so short as to erase the event from the public mind," Walter wrote in a Sept. 8 decision. "On balance, it is this court's opinion that granting the motion would best serve, not only justice, but the appearance of justice.

A great new blog for resources on criminal informants, aka snitches

CrimProf Alexandra Natapoff has done ground-breaking work on criminal informants in articles and a book, and I am pleased to learn that she has now brought her expertise to the webvia a new blog called Snitching Blog.   An introductory post here provides details of the project:

Snitching Blog is about a part of our criminal system that most people know little or nothing about: criminal informants, or snitches.  At any given moment, thousands of informants are trying to work off their own criminal liability by giving information to the government. These informants may be in court, in prison, on the street, or in the workplace.  Police and prosecutors often rely heavily on information obtained from snitches — especially in drug enforcement but also in white collar crime, organized crime, and terrorism investigations.  In fact, it is impossible to fully understand the U.S. legal system without understanding snitching.  Nevertheless, there is very little public information available about this important public policy.  That's where Snitching Blog comes in.

This blog does a bunch of things.  It discusses how snitching works — on paper and in reality. It provides resources to individuals, lawyers, law enforcment, and legislators — check out the links on the left.  It covers current events and news stories. And it lets you share your own experiences by posting a "Testimonial" — click on the link at the right.

Looks like I have another regular must-read to add to my blog browsing, especially since so many big sentencing cases have a snitching element.  For example, Sasha has this recent post on the Troy Davis case, titled "Troy Davis Gets a Hearing — Recantation Redux."

The re-leaunch of CrimProf blog

I am pleased to be able to report on an exciting new development in the climinal law blogosphere. Here is the news (with links) from an e-mail I received today from Professor Kevin Cole:

My CrimProf colleagues here at the University of San Diego School of Law — Larry lexander, Don Dripps, Yale Kamisar, Adam Kolber, and Jean Ramirez — and I are happy to report that we have re-launched the CrimProf blog.  You can find our introductory post here and can access the entire site at http://lawprofessors.typepad.com/crimprof_blog/.

We hope to continue the efforts of the blog’s previous editors to make this site a valuable resource for criminal law and procedure teachers.  Please send comments and content suggestions to [email protected].

If you would like to receive daily email updates about new postings on the blog, you can “subscribe” by going to the blog at http://lawprofessors.typepad.com/crimprof_blog/ and entering your email address in the column at the left under the heading “News Readers and Feeds."

The "new" CrimProf blog already has lots of new content, including links to lots of new criminal law papers appearing on SSRN.  I made a regular habit of checking the "old" CrimProf blog, and now I suspect that site will be a daily must-read.

Who will get the first e-book into the law school classroom?

Thanks to this post by Jonathan Alder at Volokh, I see from this article that Case Western Reserve University will soon have students in certain classes getting their their textbooks via the Amazon Kindles.   This Wall Street Journal report explains that Amazon "on Wednesday plans to unveil a new version of its Kindle e-book reader with a larger screen and other features designed to appeal to periodical and academic textbook publishers."  Here's more:

Beginning this fall, some students at Case Western Reserve University in Cleveland will be given large-screen Kindles with textbooks for chemistry, computer science and a freshman seminar already installed, said Lev Gonick, the school's chief information officer. The university plans to compare the experiences of students who get the Kindles and those who use traditional textbooks, he said.

The new device will also feature a more fully functional Web browser, he said.  The Kindle's current model, which debuted in February, includes a Web browser that is classified as "experimental."  Five other universities are involved in the Kindle project, according to people briefed on the matter. They are Pace, Princeton, Reed, Darden School at the University of Virginia, and Arizona State.

Over at Law School Innovation, we have been talking about Kindle and other e-readers in the law school classroom for almost two years already (see 2007 posts here and here and here).  From the get go, I have never doubt that e-books would eventually take over the law-school classroom.  Because of the extraordinary costs and inconveniences of traditional law school casebooks, the issue in my view has always been, not whether e-books become common, but rather just when and exactly how they will enter the law school classroom.

Cross-posted at LSI

UPDATE:  The new Kindle, known as the Kindle DX, can be seen in the picture above, and this report on its launch highlights why e-books are the future and also has a great quote from my former OSU College of Law colleague (who is now a tech rock-star):

Bezos reminded the assembled journalists at this week's launch event that the Amazon Kindle will soon be able to offer "every book ever printed, in any language, all available in less than 60 seconds."

"Eighteen months ago, we launched Kindle, and at the time we had 90,000 books available for Kindle. (We had) 230,000 books just three months ago when we launched Kindle 2," Bezos said. "We've added another 45,000 books in just the last three months. We're actually accelerating."

"The display is 2 and a half times the size of the Kindle 2," added Bezos, adding that with the "Built in PDF reader, you never have to pan, you never have to zoom, you never have to scroll. You just read."   Also, rather niftily (just as with Apple's iPhone), "You just rotate the device and you go to widescreen mode."...

"Textbooks shine with this display," Bezos continued, telling the assembled crowd in NYC that he was "excited to announce today that we've reached an agreement with three leading textbook publishers."

As for students, Bezos confirmed that they already have five universities involved in piloting the Kindle DX this autumn, welcoming in Barbara Snyder, President of Case Western Reserve to give her own opinions on the new electronic textbook.

"We believe this will revolutionize learning," said Snyder. "As a research university, we're bound to test our hypothesis -- will the Kindle change how students work?  We're going to look at these questions.  To all the reporters here, can you imagine what it would be like to craft your story using paper, a typewriter, white out?"

Too much of a good thing at the new site The Legal Workshop?

I am pleased to report on a new scholarly on-line project (which I hope will evolve to better achieve its laudatory goals).  The project is the Legal Workshop, and here is its basic mission statement:

The Legal Workshop is a website providing a single online forum for cutting-edge legal scholarship from the top law journals in the country....

The Legal Workshop features “op-ed” versions of the articles published by the member journals. These concise and lively pieces are written for a generalist audience, combining the best elements of print and online publication.

Each Legal Workshop Editorial undergoes the same rigorous editorial treatment and quality screening as the journals’ print content, but readers are able to offer comments and esteemed academics have the option of submitting response pieces, which are checked for citations and substance.

By aggregating the work of multiple law reviews, The Legal Workshop is able to provide frequently updated content. New article-based content is posted every Monday and most Wednesdays and Fridays. The Legal Workshop provides a one-stop forum for readers wishing to stay abreast of contemporary legal scholarship.

Larry Solum has a terrific early analysis here, which includes these three spot-on reactions:

First, the basic idea of creating an outlet for short-form legal scholarship is to be applauded....

Second, I am a bit skeptical of the ambitious claims in the press release about reaching "the general public."...

Third, I am also skeptical about potential for the format of "The Legal Workshop" to produce pieces that will directly influence practitioners -- lawyers and judges, who are most interested in descriptive doctrinal scholarship.

The fact that there is currently only this single criminal law piece now posted on the site, and that it runs nearly 4000 words and proposes a radical change to modern habeas law, confirms all that Larry has to say about this new project.  It is great to have a short-form version of this 70-page habeas article from the Duke Law Review, but I doubt that either the general public or practitioners are going to find the short-form version much more useful and accessible than the long form version. 

Plus, on a very practical level, I will be much less likely to cite the short-form version of the article inbecause its cite form -- which much include this cumbersome URL: http://legalworkshop.org/2009/03/18/habeas-corpus-and-state-sentencing-reform-a-story-of-unintended-consequences -- is much longer than the cite form for the full article.

Cross-posted at LSI here

Off-line while participating in Stanford Law Review symposium about media

Ironically, I may be off-line and unable to comment on media, justice and the law for a little while because I am participating the Stanford Law Review's symposium on "Media, Justice, and the Law."  The details of the event are here and here.  All of the papers written for the event are really interesting; I am looking forward to an exciting event and I think a webcast should be available here.

In praise of How Appealing (and a call for more criminal justice blogs in 2009)

I suspect that all fans of the legal blogosphere already know that they must make regular stops at How Appealing to keep up with all the legal news that's worth following.  But Howard Bashman's most recent two posts, both which hit on sentencing topics I likely cannot give their due, reminds me of how essentially he remains to my ability to keep up with the sentencing news of note.  Here are the two posts, with titles drawn from notable major newspaper headlines:

• "Long Held in Capital Case, Man Sues to Get a Lawyer"

• "Court case: Hide a hamster, go to the slammer?"

In addition to wanting to again praise Howard for all he does to make my life easier, I also wanted to use this post as an opportunity to encourage any and every sentencing fans and/or potential bloggers to consider starting a new criminal justice blog in 2009. 

Though blogging my now seem old hat, the fact remains that many smaller criminal justice issues would be well-served by a focused blog.  Recent entrants to this part of the blogosphere — sites like Pardon Power and Sex Crimes — have been so valuable and successful not only because of the insights and energies of their authors, but also because there are so many criminal justice topics that can and should be covered by smart folks from so many different perspectives.

I would like to thank the ABA, Justices and judges, sentencing commissions, criminals and their lawyers....

Of course, it is an honor just to be nominated.  But, since nominations were not ever made public, it is more exciting to win again a place on the ABA's list of the best legal blogs.  This poston the ABA's blog, titled "50 New Sites Make 2nd Annual ABA Journal Blawg 100," provides the basic back story:

On our second annual list of the best legal blogs, just half of last year’s honorees make a return appearance.

What explains the high turnover? For one thing, every day new legal blogs are started, and some existing blogs—including some that appeared on last year’s list—cease to be updated regularly. Plus, some of the upstart blogs are just plain better than some that made the cut last year.

This year, blogs that aren’t updated at least weekly—no matter how interesting—often didn’t make the grade. We put a premium on blogs that broke news in 2008, or were among the first to provide trenchant analysis of one or more breaking legal news stories.

All kidding aside, I am grateful and honored that the folks at ABA put this blog on its Top 100 list in the crime category for the second year in a row.  The full list of the ABA Journal Blawg 100 can be accessed at this link, where one can also find links to some fun blog feature stories.

The law blogosphere continues to grow...

with the appearance of the Marquette University Law School faculty blog.  I will be following this blog regularly, in part because I expect Professor Michael O’Hear to post with some regularity on federal criminal justice matters.  In fact, he already has this post on the recent Carter case, titled "A Galling Case in the Seventh Circuit," which ends with these potent insights:

Those who practice criminal law in the federal courts will find much to interest them in Carter (for instance, the discussion of the use of comparative statistics in litigating sentences) but what strikes me most deeply about the case is the way it illustrates the crazy disproportionality of the federal criminal justice system. We live in a odd world when two years in prison is regarded as an extraordinary act of mercy for a first-time, nonviolent offender whose crime was largely technical in nature.  It is odder still to realize that the sentencing guidelines called for more than seven years in this case–especially considering that the average sentence for violent felonies in this country is only about six years (which also happens to be about what Mr. Carter–the real crook in the story–received).  Why the Department of Justice felt it would be a good use of taxpayer resources to appeal Carter’s sentence (and, if successful, to imprison her for seven years) is a mystery–this seems to me a case of carrying an attractive abstract principle (sentences should be imposed in a uniform, objective manner) to absurd lengths.

Those interested in law professor blogging also will want to check out this post, titled "Teaching, Scholarship, Service … and Blogging? Decanal Encouragement of Law Faculty Blogging."

Reflections on the (criminal justice) blawgosphere

Here are three very interesting and thought-provoking posts about the history and state of the blawgosphere from the "practical blawgosphere":

• From Simple Justice, Are Law Professors Afraid of the Practical Blawgosphere?

• From CrimLaw, A Brief History of Blogging: Is It a LawProf's World?

• from Simple Justice, Is This What They Think of Criminal Defense Lawyers?

These posts all suggest, directly or indirectly, that there is a big divide between the blogs and blogging habits of law professors and practicing lawyers.  Of course, there is a huge divide between the day-to-day work and responsibilities of law professors and practicing lawyers, but I love the blawgosphere in part because it has always seemed by a terrific cyber-meeting-space for the academy and the bar (as well as the bench and law students and non-lawyers).

Indeed, I have generally believed that most (though not all) of the law professors who blog are much more interested in the day-to-day work of practicing lawyers than most of their academic colleagues.  Similarly, I have generally assumed that most (though not all) of the practicing lawyers who blog are much more interested in academic perspectives and debates over broad legal ideas than most of their practicing colleagues.  In other words, I generally views most law bloggers, whether profs of practitioners, as birds of a feather. 

But the posts above have led me to seriously question my assumptions about the blawgosphere (though as my posts title spotlights, my focus and hands-on knowledge is only within and among criminal justice blogs).  Do readers generally see relative harmony or a big divide between bloggers in the academy and in the bar?

Tangled up in cites

Over at Race to the Bottom, Jay Brown has this very kind and cool post, headlined "Law Blogs v. Rockers: CItations in Court Opinions."  Riffing off this list from the New York Times, which details court citation counts from renown rock-n-rollers, the post puts me in terrific rock-poet company. 

Inspired by the comparison, and one of my all-time favorite albums, here is a law-blog-cite version of one of my all-time favorite songs:

Early one mornin' the sun was shinin', I was surfin' the web

Wond'ring if courts had changed at all, if their cites were still dead

--

Some folks they said all the posts together, sure was gonna be rough

They never did like cyber-scholarship, using new tech wasn't snooty enough

--

And I kept bloggin' all the sentencing issues, cases fallin' in my sights

Keeping up with the Justices, lord knows I've not been always right,

Tangled up in cites.

Will Our Courts game include sentencing (and have a Wii version)?

As detailed in this Reuters article, the first woman to serve on the US Supreme Court has now "unveiled a videogame project ... to teach children how courts work, saying she wanted to counter partisan criticism that judges are 'godless' activists."  Here are more details:

Sandra Day O'Connor, 78, who served as U.S. Supreme Court justice from 1981 until her retirement in 2006, said she never imagined she would be asked to address a conference about digital gaming.  She said she got involved with developing the project called "Our Courts" out of concern over public ignorance about the judiciary and partisan attacks on what should be an independent institution....

She said the only way to preserve an independent judiciary was through public education, which she said was failing to produce citizens with enough knowledge about the three branches of U.S. government -- legislative, executive and judicial.  The Our Courts project will have two parts, O'Connor said. The first is on online interactive civics program designed to be used by children from 7th to 9th grades either to supplement existing courses or as a distinct unit in the curriculum....

She said the web site at http://www.ourcourts.org/ should have some initial material by this September and be fully operational with interactive elements a year later.

The second part of the project will be for young people to use in their free time, O'Connor said, noting that studies showed children spend around 40 hours a week using media, including computers, television, videogames or music. "If we can capture just a little bit of that time to get them thinking about government and civic engagement rather than playing shoot-'em-up video games, that's a huge step in the right direction," she said.

The Our Courts website already has a lot of useful links, and I am very excited that Justice O'Connor see the opportunity and the value of innovative ways to share her wisdom and ensure the judiciary gets the respect it deserved.  I look forward to watching this project develop (and will hope lots of sentencing content appears on-line, despite Justice O'Connor vocal opposition to the modern Apprendi-Blakely jurisprudence).  Over at TalkLeft, T Chris has this fitting reaction to this news:

After kids learn how to steal cars by playing Grand Theft Auto IV, they can learn what happens after a car theft arrest by playing Our Courts.

On Judge Nancy Gertner as blogger

Thanks to How Appealing, I discovered this Boston Globe article discussing federal judge Nancy Gertner's recent blogging Slate's Convictions blog.  (Of course, regular readers know that Judge Gertner's many provocative and thoughtful sentencing opinions have long made great blog fodder.)   Here are a few interesting snippets from the Globe article:

Gertner appears to be the only judge in Massachusetts who shares her unfiltered legal views in the blogosphere, according to officials in the federal and state judiciary. A favorite of the state's defense bar and plaintiffs' attorneys, and the bête noire of some in law enforcement, she is also the only jurist among nearly two dozen contributors to what Slate calls its "blogging destination for smart legal conversation and commentary."...

For the past nine years, she has also taught two courses on sentencing, one a semester, at Yale Law School, her alma mater, where she shares her insights in her characteristically chatty manner.  So blogging, she says, is not a radical departure. "I saw this as the new media version of what I've always been doing," the former criminal defense lawyer said recently at her office at the John Joseph Moakley Courthouse. "If this is where people are getting information, this is where we have to be."

Not everyone agrees.  Bruce M. Selya, a senior judge on the Court of Appeals for the First Circuit, which reviews cases from Gertner's court, said he respects her and is sure she has thought out the potential ramifications of blogging.  But he would never do it.  "I think it would be a great strain on me to be careful not to say anything that could come back and make it seem like I prejudged a matter when it actually came before me," said Selya....

Gertner says judges are too often silent on issues they should publicly address, such as how federal sentencing guidelines have led to what she and other jurists consider unreasonably long prison terms for nonviolent drug offenders.  Judges must also do a better job explaining why the judicial code forbids them from discussing cases, she said, because their silence after controversial rulings is misread as arrogance or cowardice.

Slate starts impressive (and confusing) new blog called "Convictions"

I got the news today that Slate.com has launched a group legal blog, called Convictions. According this this post at Volokh by Orin Kerr, the blog boasts this amazing group of contributors:

Ben Wittes, David Barron, Deb Pearlstein, Adam White, Dawn Johnson, Doug Kmiec, Diane Amann, Judge Nancy Gertner, Jack Balkin, Kenji Yoshino, Marty Lederman, Orin Kerr, Patrick Keefe, Eric Posner, Richard Ford, Tim Wu, Viet Dinh, Walter Dellinger, Dahlia Lithwick, Emily Bazelon, Phil Carter, and David Feige.

Though the content is already amazing, the blog's format and plans are quite confusing.  Though I have seen two reports that the Convictions blog launched today, there are posts going back a week.  In addition, what is right now the top post seems to just be "borrowed" from Jack Balkin's home blog, rather than "fresh" materials.  And I cannot find any official list of contributors or any explanation of why Slate.com — which is already kind of bloggy — decided to start a group legal blog.

I have long been hoping that the "technological infrastructure" of blogs would improve and advance with new entrants, but Convictions seems to be a step back technologically.  Still, this blog is clearly to be a must-read because of its participants.  And, if the Slate folks ever decided to do a follow-up blog called Sentences, I hope I will be asked to join in the fun.

Where the bugged water cooler must reside

A couple of years ago, at a law blogger conference at Harvard Law School where folks debated the scholarly potential of blogs, Kate Litvak derisively described law professors blogs as a "bugged water cooler."  As suggested by my paper for this conference, I have never thought much of this analogy; but this great-looking new group blog by law professors, because it is titled  "The Faculty Lounge," makes me now think Litvak was perhaps on to something.

The Faculty Lounge, which is sub-titled "Conversations about law, culture, and academia," has a great group of contributors.  Also, its first four category archives all involve topics dear to my heart: Blogs and Blogging, Constitutional Law, Criminal Law, Law School Hiring.  I am already looking forward to frequently visiting TFL.

My bloggy interview at LexBlog discussing start of OSJCL Amici

In this post at LexBlog, Rob La Gatta has put up an interview we did last week discussing, inter alia, how my blogging here (and the thoughtful comments of so many readers) inspired me to help create OSJCL Amici: Views from the Field.  Here is this part of our Q and A:

Rob La Gatta: How did the idea for Views From The Field first develop?

Doug Berman: I’ve been blogging on my Sentencing Law & Policy Blog for a while, and have been inspired by the number of thoughtful practitioners who will say things in comments and through e-mails that give me really distinctive views on the federal sentencing world.  Being involved with the Ohio State Journal of Criminal Law, I thought we ought to have an online supplement, one that avowedly focused on getting the perspective of thoughtful practitioners (rather than just providing opportunities for law professors to write smaller versions of longer ideas). That was the model.

I lucked out that there was a very capable student who had just joined the journal, who indicated an interest in getting involved in some new projects. He helped us run with it and put together a lot of the infrastructure. I’ve [also] been lucky — through my work on federal sentencing — to get to know a number of federal judges....I sent out an e-mail to a bunch of district judges and said "Hey, we’d like you to write for this." Fortunately, out of the 10 I wrote to, 4 not only wrote back, but actually wrote...and wrote really interesting stuff that, in a sense, comprised our first issue.

A shout-out to great blog work getting noticed

Scott Henson has started 2008 on fire at Grits for Breakfast, and some of the powers-that-be are taking note.  Specificaly, on Friday in this post, titled "Court of Criminal Appeals Workload Declining under Judge Sharon Keller," Grits documented a caseload decline in Texas's highest criminal court and suggested that "CCA judges just don't work as hard as they used to."  Within 48 hours, Grits had received and posted this thoughtful response from a judge on the court.  This passage provide a flavor of the overall response:

The total number of petitions for discretionary review that were filed with the CCA in fiscal 2007 was 1,661.  The court has no control over that number.  Both defendants and the State have a statutory right to file such petitions.  The Court granted 149 petitions–that is, it agreed to hear 149 new discretionary cases in 2007.  By comparison, the total number of cases filed in the U.S. Supreme Court during its 2006 Term was 8,857, and it heard 78 civil and criminal cases.

Beyond my interest in the substantive specifics of this debate, it is great to see a serious reform advocate and a prominent judge engaging on these important topics directly in the blogosphere. 

Further, as the links below document, Scott is off to a flying start in 2008 covering a number of other important criminal issues dear to my heart:

• Partisan labels provide little guide for identifying criminal justice reformers
• Federal corruption investigation includes Harris County Jail contracts among targets
• Clergy seeking to respond to violent crime should look to restorative justice
• More on what clergy can do to respond to and reduce violent crime

A little weekend campaigning

This post is a weekend pitch asking readers to go over to the ABA's Blawg 100 list and vote here for this blog as among your favorite criminal justice blogs.  This is my first campaign post, precipitated by the fact that I have now fallen to third in the voting behind a "blawg" that only does about one or two posts each week.

Thanks!

UPDATE:  As of Sunday morning, I've jumped to first place.  Thanks everyone, and keep stuffing this virtual ballot box on my behalf.

An intriguing new blog focused on judicial independence

l I received an e-mail from folks at the Justice at Stake Campaign announcing an interesting looking new blog.  Here part of the pitch I received:

A new legal blog, Gavel Grab, [will] focus on attacks on the independence and impartiality of the courts — in judicial elections, in legislatures, and on the airwaves.  We launched this week with posts on the Supreme Court’s Guantanamo cases (by Slate’s Dahlia Lithwick), growing calls for a Wisconsin high court justice to recuse herself from a campaign supporter’s case, and a look at how the Terri Schiavo episode continues to ripple through the Presidential primaries.  And each day our staff provides links to interesting legal stories and blog posts.

As regular readers know well, sentencing decisions are often the focal point for judicial attacks.  I'll be reading this new blog regularly.

A helpful list of blawgs from the ABA Journal

As How Appealing details here, the ABA Journal has created this "Blawg 100" list.  Though I am biased toward the list because I am on it (and because it describes my commentary as avant-garde), I think it is fair for me to assert that the list provides a terrific "blogroll" for lawyers looking to keep up with legal news and ideas. 

Relatedly, the magazine has this feature entitled "ForeBlawggers: Seven lawyers who started the blawg revolution."  I'm sold on most of ABA Journal's picks for founding bloggers, though I think a few other law professor bloggers (e.g., Althouse, Banbridge, Balkin, Leiter, Lessig) might have merited a place on the ForeBlawggers list.