In June, the Supreme Court offered its’ latest pronouncement on the right of criminal defendants to represent themselves in court. The Court first recognized this constitutional right in 1975 in Faretta v. California, a case that I like to present in my Criminal Procedure course as one of the few instances in which the Supreme Court has given any real weight to the dignitary interests of criminal defendants (which are usually subordinated in criminal procedure to competing objectives, such as judicial economy and reliable fact-finding). I think the Court was right that it is profoundly demeaning for the state to force a lawyer on an unwilling defendant, and then authorize the lawyer to decide how the defendant’s story will be presented to the jury. (I discussed this point at greater length in this essay a few years ago.) Yet, the Court’s post-Faretta decisions have generally worked to diminish the scope of the right to self-representation, and the most recent (Indiana v. Edwards, 128 S.Ct. 2379 (2008)) is no exception. Continue reading “Edwards and Erosion of the Defendant’s Right to Self-Represent”
As a frequent critic of the federal sentencing guidelines (see, e.g., my post from Monday), my readers–yeah, both of them–often assume that I dislike sentencing guidelines in general. To the contrary, I think that sentencing guidelines remain a good idea and have worked quite well in many states (not in Wisconsin, unfortunately, but I will leave that post for another day). The problem with the federal sentencing system is not that it has guidelines, but that it has bad guidelines. Continue reading “Federal Sentencing Guidelines Still Need Fundamental Reform”
My colleague Paul Secunda recently wrote this pointed essay on the Supreme Court’s Ledbetter decision for the Workplace Fairness Blog. Ledbetter made it harder for plaintiffs with Title VII pay discrimination claims to prevail by holding that the statute of limitations runs separately on each of a series of discriminatory pay decisions, even though the cumulative effects of the decisions may continue to be felt for many years thereafter. Paul argues in his essay that Ledbetter is “absurd” inasmuch as it requires some victims of discrimination to file their claims before they have a fair opportunity to discern the discrimination. He urges Congress to pass a pending legislative fix, the Lilly Ledbetter Pay Equity Act, and notes that the issue is one that divides the current Republican and Democratic presidential nominees.
Kicking off a terrific speaker series at Marquette this semester, Dan Markel of Florida State and PrawfsBlawg fame is with us today to present his paper How Should Punitive Damages Work?. This is the second part of a multi-article series in which Dan is developing a comprehensive reform proposal for punitive damages law. Dan’s basic premise is that punitive damages should be reconceptualized around principles of retributive justice. To the extent that we want punitive damages to do other things (e.g., compensate victims for dignitary harms), Dan urges that we give those forms of damages different labels and treat them in a procedurally distinct manner from retributive damages. Notably, he would give retributive damages awards to the state, not private plaintiffs; plaintiffs would get merely a small finder’s fee ($10,000) and attorneys’ fees. Continue reading “Retributive Damages in a World Without Trials”
My colleagues Nadelle Grossman and Kali Murray have recently prepared this informative podcast regarding the implications for I.P. licensing of the Supreme Court’s recent decision in Quanta Computer, Inc., v. LG Electronics, 128 S.Ct. 2109, 170 L.Ed. 2d 996, 76 USLW 4375 (June 9, 2008). I understand that this will be the first in an occasional series of podcasts on current issues in intellectual property prepared by Marquette’s I.P. professors. This is an exciting new venture, and I look forward to hearing their future productions.
The Seventh Circuit has an interesting new sentencing decision, United States v. Carter, which nicely illustrates the impact of the Supreme Court’s decision last year in Gall v. United States. Robert Carter, the husband of defendant Virginia Carter, embezzled money from his insurance business over several years. There is no indication that Virgina Carter participated in the embezzlement, but she likely had some knowledge of what was going on. Eventually, for reasons that are unclear, she sought a divorce. Following the advice of her lawyer, who did not know that much of the family income was illegal, Carter attempted to take control of the couple’s liquid assets by transferring them into her own individual bank accounts. Normally, this would be a sound tactical move in a divorce setting, but, by virtue of the criminal origin of the assets, Carter thereby became a money launderer. Following conviction, she faced a recommended sentence of 87-108 months in prison under the federal sentencing guidelines. Continue reading “A Galling Case in the Seventh Circuit”
My colleague Matt Parlow has a new article suggesting that real estate developers are becoming more sensitive to environmental concerns. The article, “Greenwashed: Developers, Environmental Consciousness, and the Case of Playa Vista,” appeared as part of a terrific symposium issue of the Boston College Environmental Affairs Law Review on “The Greening of the Corporation.” (The entire issue is available here.) Matt’s article centers on a fascinating case study of Playa Vista, an enormous (and enormously controversial) mixed-use development project in Los Angeles near environmentally sensitive wetlands.
As Matt relates in the abstract to his article, he finds the Playa Vista saga to be a hopeful one: Continue reading “Real Estate Development and Environmental Consciousness”