July 3, 2009
Seventh Circuit Criminal Case of the Week: Another Questionable Statement by a Prosecutor
Posted by: Michael M. O'Hear
Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Prosecutorial Misconduct, Seventh Circuit
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On several occasions recently, the Seventh Circuit has been critical of statements made by prosecutors to jurors. (See, for instance, my posts here, here, and here.) Another questionable comment by a prosecutor was the subject of this week’s decision in United States v. Myers (No. 07-3658) (Manion, J.).
Myers was tried on arson charges. During closing arguments, defense counsel highlighted the fact that gasoline was not found by investigators on the floor of the building that Myers allegedly burned down. In response, the prosecutor stated:
[A]ny speculation on the part of [defense counsel] about why or why there wasn’t gasoline can be easily explained by the fact that there were firefighters that were in there that night trying to extinguish that fire with water. Water has a tendency to sweep through and remove all sorts of different things that might have been on the ground. So, ladies and gentlemen, that’s an easy explainable different part of what [defense counsel] was trying to suggest.
On appeal following his conviction, Myers challenged this statement as prosecutorial misconduct.
In addressing Myers’ argument, the Seventh Circuit noted that the government was free to argue “the mere possibility that water could have cleaned or diluted the surface of the carpet.” The problem was that “the government did not couch its argument in such hypothetical terms.” Read more
July 2, 2009
Welcome, Nominee Kappos
Posted by: Eric Lalor
Category: Intellectual Property Law
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Like most patent practitioners, I am very pleased with President Obama’s recent nomination of a new Undersecretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO). The nominee is David Kappos, vice president and assistant general counsel for intellectual property at IBM. Kappos has over 20 years of intellectual property experience and manages IBM’s patent and trademark portfolios. Worth noting is that each year, IBM obtains more U.S. patents than nearly any other company.
In Kappos’s capacity as VP and assistant general counsel for IP at IBM, his views on many substantive patent law issues are well known. For example, he is not a fan of pure business method patents (preferring, for example, the machine-or-transformation test). He also generally supports harmonization efforts, including “opposition-like” post-grant review procedures. His opinions on such issues have been praised by many and criticized by some. Interestingly, some have also criticized his nomination for not emphasizing his potential to fix various problems of the USPTO, but instead focusing on his knowledge of the patent system in general.
I, on the other hand, am relieved that his nomination has been surrounded by discussions of his general knowledge of the patent system. Read more
Public Employee Bloggers Beware? For Now
Posted by: Paul M. Secunda
Category: Labor & Employment Law
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In mid-June of this year, the Ninth Circuit Court of Appeals decided the Richerson v. Beckon case, involving a First Amendment claim by a public school teacher after she was demoted for comments she posted on her personal blog (article in the National Law Journal can be found here (subscription required)).
As it happens, I included an analysis of this case at the district court level in my recent paper, Blogging While (Publicly) Employed: Some First Amendment Implications, 47 U. Louisville L. Rev. (forthcoming 2009). There, I wrote in part:
In Richerson, the Central Kitsap School District initially employed Tara Richerson as the Director of Curriculum. She then was in line for a voluntary transfer to a new position that would permit her to work half time as a curriculum specialist and half time with a new instructional coaching model. Importantly, the instructional coach component of her prospective job required her to follow a model which emphasizes the sensitive and confidential relationship between her coaching position and the teachers that she would be mentoring.
Before being transferred, the school district became aware that Richerson was using a personal blog to be critical of her replacement in the Director position. Language is everything in these public employee free speech cases, so here is the entire blog posting in question:
July 1, 2009
Explaining Sentences in Wisconsin and Federal Court
Posted by: Michael M. O'Hear
Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Legal Scholarship, Wisconsin Criminal Law & Process, Wisconsin Supreme Court
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I have a new paper on SSRN entitled “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences.” As I observed in a recent post, I’ve become very interested in the way that sentences are explained to defendants, and how appellate review of explanations can potentially contribute both to procedural justice goals and to substantively better sentences. My forthcoming article in the Florida State Law Review focuses on “explanation review” in the federal system. The new paper focuses on the contrasting experience in Wisconsin and proposes a general framework for explanation review that blends the best features of the Wisconsin and federal systems.
As I see it, the basic flaw of the federal system is to permit sentencing judges to avoid any explicit engagement with the purposes of punishment if they impose a sentence within the recommended guidelines range. In a sense, the basic flaw of the Wisconsin system is the reverse: the Wisconsin Supreme Court permits sentencing judges to avoid any explicit engagement with the state sentencing guidelines (or any other objective benchmark); little more is required than an explanation that expressly invokes the purposes of punishment and references a few case-specific facts. My proposal seeks to promote engagement with both guidelines and purposes.
I presented the paper earlier this month at the Marquette Criminal Appeals Conference. It will appear in a symposium issue of the Marquette Law Review this winter. The abstract appears after the jump. Read more
Finding the Spirit of God, and the Law, in All Things
Posted by: Rachel Monaco-Wilcox
Category: Uncategorized
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In my final post I simply want to express gratitude for the opportunity to learn about myself as a Marquette lawyer, and my passions in the law, by making the choices of what to say in posting over the course of this past month.
As I see it, the Law School’s Blog is a collective forum for sharing diverse opinions, the dynamic evolution of legal concepts, and freedom of expression, and for honoring the unique attributes of each writer. Each individual contributor chooses to contribute to the discourse on justice, the law, and the interrelationship of those concepts in our world, which far too easily becomes compartmentalized into unrealistic and unhelpful hierarchies like legal and non-legal, students and faculty, lawyers and non-lawyers. That this forum exists, and exists at Marquette University Law School, is a gift, as it reminds us that we have a completely free choice, always, of how to exist in a world that needs lawyers with compassion, integrity, and purpose so badly. That choice is determinative and illustrative, for each person, of an inner fire that is the only source for renewal of a continued, sustainable commitment to being Marquette lawyers, who are, first and foremost, men and women for others. Read more
Many thanks to our featured June bloggers: Irene Calboli, Tiffany Winter, and Rachel Monaco-Wilcox. The new featured bloggers for July will be Michael Waxman (faculty), Brent Simerson (student), and Eric Lalor ‘03 (alum). Happy Independence Day!
June 29, 2009
Seventh Circuit Criminal Case of the Week: Protracted Prosecution, Contrition, and Age as Sentencing Factors
Posted by: Michael M. O'Hear
Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Seventh Circuit
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The Seventh Circuit had some interesting commentary on a number of different sentencing factors in United States v. Presbitero (Nos. 07-1129, 07-1610, & 07-1712). Writing for the court, Judge Williams affirmed Presbitero’s conviction of tax offenses, reinstated a codefendant’s conviction, and remanded for resentencing in order to determine whether Presbitero qualified for a leadership enhancement under the sentencing guidelines. Judge Williams concluded by addressing the government’s arguments that the district court took impermissible factors into account when it sentenced Presbitero to a below-guidelines sentence.
First, the Seventh Circuit agreed with the government that the expense and stress of protracted litigation could not be considered as a mitigating factor for Presbitero. Since Presbitero spent almost ten years (!) defending charges brought by the government, it is hard to see how anyone could qualify for a sentence reduction based on the burdens of protracted litigation if he does not. The court cited concerns about encouraging defendants to overspend on expensive lawyers as a reason not to treat litigation costs as a mitigating factor. There would also be equitable concerns in giving a sentence benefit to defendants who are able to spend a lot of money on private lawyers. Still, I wonder if the court has given too little regard to the nonfinancial toll of litigation. In some cases, as Malcolm Feeley famously observed in a book of the same title, “the process is the punishment.” Although lawyers may make neat distinctions in their heads between the process by which guilt is determined and the punishment imposed afterwards, many defendants surely experience the process as deeply traumatic and stigmatizing in its own right. In extreme cases, it may not be inappropriate to reduce the length of the formal sentence in recognition of the fact that the defendant has already suffered a great deal prior to the imposition of the sentence.
Second, the Seventh Circuit rejected the government’s contention that Presbitero’s “obstinate behavior” should have been considered an aggravating factor. Read more
June 28, 2009
Copyright Law in Transition
Posted by: Bruce E. Boyden
Category: Intellectual Property Law
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Irene’s post and Kali’s post got me thinking: What is it that interests me about copyright law? The answer is somewhat surprising, given that I specialize in copyright law: nothing, per se. I’m not especially attracted to the doctrine of copyright law more than a number of other subjects, such as torts or contracts or even securities regulation. Indeed, as cocktail party conversation goes, I always cringe a little when I say I specialize in copyright, because it often leads to a discussion of some particular controversy in which I am forced to admit at the end that I have no idea what the answer is, as the statute is vague and there are cases on both sides (or maybe no cases at all). At least there are answers to what constitutes insider trading.
What interests me about copyright is not copyright law in itself, but copyright law as a subject. Over the past few years, I’ve come to realize that my interest in copyright law and Internet law predates law school. It’s part of my general interest in ideological transitions, and in particular turbulent ideological transitions. I’m interested in copyright law for the same reason I’m interested in vigilantes and alterations in foreign policy and systems accidents.
Sonia Sotomayor: Activist Grammarian
Posted by: David R. Papke
Category: Legal Writing
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William Safire reported in a recent column that Supreme Court nominee Sonia Sotomayor has a pronounced distaste for bad writing. She wants the briefs she reads to be written properly, and she believes in carefully crafting opinions. In particular, Sotomayor says, “the unnecessary use of the passive voice” causes her “to blister.”
When I was a young man, I worked briefly as a journalist, and all of my editors argued the active voice was a more direct and vigorous mode of expression. The passive voice, they insisted, denied human agency by sticking a helping verb such as “is” or “was” between the subject of a sentence and an action verb. Since becoming a legal academic, I have noticed the passive voice everywhere I look in legal prose, and I have struggled (with limited success) to stop the passive voice’s creeping incursion in my own writing.
Why is the passive voice so common in legal writing? It would be too simple, I think, to say lawyers are lousy writers. Surely we are no worse than accountants, bankers, doctors, and track coaches. Perhaps the ubiquity of the passive voice in legal writing relates to the positivist assumptions most legalists internalize. We like to believe laws, legal principles, and precedents stand tall and clear. When we apply the law to controversies, neutral and certain answers emerge. It is easy and ideologically convenient to announce, “It is so ordered.” Might Sonia Sotomayor be prepared to say instead, “I think the correct result is . . . .”
June 27, 2009
Which Declaration of Independence?
Posted by: Edward A. Fallone
Category: Legal History, Political Processes & Rhetoric
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When you are at your Fourth of July cookout or fireworks display this week, see if anyone mentions the Declaration of Independence. If they do, ask “which Declaration of Independence?” After all, there are more than one.
In her 1997 book American Scripture: Making the Declaration of Independence, historian Pauline Maier describes the events leading up to July 4, 1776 and points to multiple “other” Declarations of Independence issued by local legislative bodies earlier that year. Declarations were issued in a variety of places, including Buckingham County (Virginia), Charles County (Maryland), and Natick, Massachusetts. In most cases, these “other” Declarations took the form of instructions from the citizens of a particular geographic area to their elected representatives in the state legislature or in the Continental Congress. After recounting the unjustified treatment of the colonies by the Crown, these documents authorize the peoples’ representatives to vote in favor of severing ties with England. However, some of these Declarations take a different form, such as a judge instructing a grand jury on the source of their legal authority in the absence of a Royal Governor. Read more
Michael Jackson v. Prince: Thinking About Copyright, Intellectual Property, and the Age of the Eighties
Posted by: Kali N. Murray
Category: Intellectual Property Law, Popular Culture & Law, Uncategorized
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Irene’s recent post on why we love intellectual property gets at its certain power–its ubiquity in everyday life. The recent death of Michael Jackson speaks to that particular ubiquity. What was necessarily powerful about his death was that for kids of a certain generation (maybe if you were born between 1972 and 1980?), his music served, as the pundits keep saying over and over, as the “soundtrack” of our lives. I remember one slumber party where all of the Michael Jackson videos played over and over and over for 24 hours (those poor parents). The summers of 1983 through 1985 were consumed in the great debate (forget US v. USSR) of the middle 1980s: who was better, Michael Jackson or Prince! I was a stone cold Prince fan, who marshaled my arguments as if I was getting ready for battle (Purple! Let’s Go Crazy!, Purple!). I was usually in the minority in that one, as no one could top Michael’s videos (did Prince dance with zombies (No!), could Prince moonwalk (No!), could Prince rock that awesome red jacket (No!)).
This “great” debate of the Eighties morphed, though, in the Nineties, into a more interesting debate about, strangely enough, the performance artist’s relationship to copyright. Read more
June 26, 2009
“Well, a satirical piece in the Times is one thing, but bricks and baseball bats really get right to the point.”
Posted by: Richard M. Esenberg
Category: First Amendment, Human Rights, Political Processes & Rhetoric, Uncategorized
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So said Woody Allen (as Isaac Davis in Manhattan) in response to the suggestion that a Nazi march was “devastated” by a mocking piece in the New York Times.
In Sunday’s Times, there was an article about a group calling themselves “The Nationalist Socialist Movement - Springfield Unit.” It has been allowed to participate in Missouri’s adopt-a highway program. Under the program, a group agrees to pick up trash along a stretch of roadside and, in return, a sign is erected at the onset of the “adopted” segment, acknowledging their participation. The Nazis apparently pick up litter in full regalia.
What to do? Allen’s character suggested picking up bricks and baseball bats and going to “really explain things to them.” Let’s take that off the table.
There is no question that the Nazis have a right to participate. The Supreme Court has held that groups may not be excluded from such programs on the basis of their political beliefs. That case (also arising from Missouri) involved adoption of a highway by the Klu Klux Klan. State officials responded by renaming the road after Rosa Parks.
Legislators have proposed calling the highway on which the Nazis collect trash, the Abraham Joshua Heschel Memorial Highway after the prominent rabbi and philosopher.Although Heschel’s daughter is not happy with the proposal (and her wishes are entitled to great consideration), I sort of like it. Absent the preferred option, i.e., that such people not exist, there is something about having Nazis pick up the garbage on what is, symbolically, a Jew’s road. “Excuse me, there, Horst, but I think you missed that Toblerone wrapper. Be a good little Aryan and pick that up for me.”
I appreciate that people will look at the propriety of such a response in different ways. One argument would be, I suppose, that to do anything more draws attention to the Nazis. But fanatics have a way of drawing attention to themselves. I prefer to see honoring Heschel in the face of these jamokes as the wages of hatred. The Nazis are marginalized and Heschel, who barely escaped the charnel house, is honored.
But this is the faculty blog so let’s explore a legal point.
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- Bruce E. Boyden
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- John J. Kircher
- Michael M. O'Hear
- Paul M. Secunda
- Jessica E. Slavin
- Alison Barnes
- Leslie Behroozi
- Rebecca K. Blemberg
- Daniel D. Blinka
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- Edward A. Fallone
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- Michael K. McChrystal
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- Kali N. Murray
- Julie A. Norton
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The opinions expressed here are those of the individual authors and do not represent the views of Marquette University or its Law School.
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