Federal Law & Legal System – Page 157 – Marquette University Law School Faculty Blog

Environmental Sentencing: Its Bark Is Worse Than Its Bite — Should We Care?

Post author:Michael M. O'Hear
Post published:May 26, 2009
Post category:Criminal Law & Process Environmental Law Federal Criminal Law & Process Federal Sentencing Legal Scholarship

I have a new paper on SSRN about the sentencing of environmental offenders. The title is “Bark and Bite: The Environmental Sentencing Guidelines after Booker.” Using date collected by the United States Sentencing Commission, I show that judges sentence below the range recommended by the federal sentencing guidelines in an unusually high percentage of environmental cases, approaching sixty percent in some years.

Many environmentalists are apt to bristle at the apparent demonstration that federal judges are “soft” on environmental crime. Given how little the government must prove to get an environmental conviction, however — prosecutors need not show either harm to the environment or an intent to harm the environment — I am not convinced that judges really are devaluing the environment through their sentencing decisions. Still, I think the data warrant a rethinking of the environmental guidelines in order to give them more credibility with judges.

Here is the abstract:

Correlation Between Number of Questions the Justices Ask and Losing Your United States Supreme Court Case

Post author:Jessica E. Slavin
Post published:May 25, 2009
Post category:Federal Law & Legal System Judges & Judicial Process Legal Practice U.S. Supreme Court

The New York Times has published a story about some studies showing a strong correlation between the number of questions the Supreme Court justices ask a particular litigant during oral argument and an increased likelihood that that side will lose. In the words of the attorney who did some of the first work on this question while she was a still a law student,

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Shullman only studied ten cases, but, the article reports, Chief Justice Roberts confirmed the result in his own, larger study while he was a circuit court judge.

A recent, much more thorough study, accepted for publication in the Washington University Journal of Law and Policy, seems to prove the correlation exists. From the abstract,

This paper tests whether Supreme Court justices tip their hands at oral arguments. Specifically, we test whether, when justices ask more questions of one side, that side is more likely to lose their case. The findings support the theory; namely, when justices ask more questions of the petitioner’s attorney the Court is significantly less likely to reverse the lower court decision.

The NYT remarks that Chief Justice Roberts “sounded both fascinated and a little deflated by the results of his experiment. ‘The secret to successful advocacy,’ he said playfully, ‘is simply to get the court to ask your opponent more questions.'”

The result seems obvious. It is human nature, at least among lawyers, to want to interrupt and ask questions of someone you disagree with, especially if the person’s answers are not satisfactory. In other words, the side that has a sound, convincing answer for every question has created a better argument.

Now, if only a study could show how to have a sound, convincing answer for every question in every argument. That would be a real secret to successful advocacy.

Does Justice Souter Make a Difference?

Post author:Edward A. Fallone
Post published:May 23, 2009
Post category:Federal Law & Legal System Judges & Judicial Process Political Processes & Rhetoric U.S. Supreme Court

This is my final posting as the Faculty Blogger for the Month of May. Thanks to everyone who has commented on my posts and a special thanks to my colleague Michael O’Hear.

As we await word on the nomination of Justice Souter’s replacement on the Supreme Court, many observers are wondering whether the change in personnel will make any difference in the Court’s jurisprudence. The consensus seems to be that the direction of the Court will not change significantly. Depending upon whom President Obama nominates, however, there is one area where Justice Souter’s replacement may make a difference.