Intent and the Eighth Amendment: New Restrictions on Sentencing in Cases of Felony Murder?

Posted on Categories Criminal Law & Process, Legal Scholarship, Public, U.S. Supreme CourtLeave a comment» on Intent and the Eighth Amendment: New Restrictions on Sentencing in Cases of Felony Murder?

The felony-murder rule is perhaps the most troubling and controversial surviving relic of the common law of homicide, branding felons as murderers notwithstanding an absence of the sort of culpability otherwise required for a murder conviction.

If we are not going to make culpability-based distinctions in these cases at the guilt stage, then we ought to do so at sentencing, reserving the most severe sentences for those felony-murderers who actually intended to kill.  Some states do indeed recognize this distinction for sentencing purposes, but others do not.  For those in the latter category, the Eighth Amendment might conceivably provide some protection for relatively low-culpability felony-murderers.  The Supreme Court seemed to be moving in this direction in Enmund v. Florida, 458 U.S. 782 (1982), but then in Tison v. Arizona, 481 U.S. 137 (1987), essentially limited Enmund to felony-murderers who lacked any culpability as to the killing and were not even physically present at the time it occurred.

With the Enmund/Tison line of decisions in mind, I thought it quite interesting that the Supreme Court granted cert. last month in two new Eighth Amendment cases presenting contrasting fact patterns that might provide a good platform for further regulation of felony-murder sentencing.

Continue reading “Intent and the Eighth Amendment: New Restrictions on Sentencing in Cases of Felony Murder?”

3,000 Billable Hour Requirement – Believable?

Posted on Categories Legal Ethics, Legal Practice, Public2 Comments on 3,000 Billable Hour Requirement – Believable?

Did everyone happen to see this article in the ABA Journal? If you missed it, an attorney who had been fired is now suing his former law firm because the firm’s alleged requirement that attorneys bill 3,000 hours per year encouraged fraud.

There are so many great conversations/debates that could be started by this lawsuit:

– the merits of the billable hour system

– the long hours often worked by attorneys (i.e., work-life balance)

– the controversy over billing time in minimum increments

But before we get to that, I have to ask whether there is any truth to this lawsuit and the alleged 3,000-hour requirement in the first place. Continue reading “3,000 Billable Hour Requirement – Believable?”

Son of SOPA

Posted on Categories Intellectual Property Law, PublicLeave a comment» on Son of SOPA

The House Judiciary Committee held a markup hearing on the Stop Online Piracy Act, H.R. 3261, the bill that is quickly shaping up to be this year’s big copyright battle. I’ve written two prior posts on the bill, Part I and Part II.

This is a good opportunity to recap where I came out at the end of my last post: SOPA in its then-current form was very troubling. The most troubling part was Section 103, which seemed to have been drafted with two inconsistent goals in mind, as if the co-authors were Dr. Jekyll working alongside Mr. Hyde: on the one hand Section 103 appeared to offer limited supplemental remedies in suits brought under existing copyright and trademark law, and on the other it appeared to significantly modify existing law by creating a free-form cause of action and a notice-and-takedown regime that went far beyond what the DMCA enacted thirteen years ago. For the reasons I stated in the post, I believe that the former reading — the Jekyll version if you will — had to be the correct one, because both the alleged new cause of action and the apparent notice-and-takedown regime were radically under-specified. I’m still concerned that critics of the bill are cementing an overly broad reading of it — the Hyde version — by not even acknowledging the Jekyll reading as a possibility. (This is akin to a concern that copyright scholar Jessica Litman has recently expressed as well, that copyright critics may ironically worsen the doctrines they are concerned about by asserting the most damaging interpretation.)

In addition to all that, SOPA as introduced had an overly broad scope for (what I argue are) the supplemental remedies — they appeared not just to apply to sites infringing in the U.S. but as a practical matter immune to traditional means of enforcement — the so-called foreign “rogue sites” — but to any website, anywhere, even one that a U.S. court would have no problem directly enforcing a preliminary injunction against with contempt sanctions. That is, even if Section 103 were amended to make clear, as I believe it should be, that the remedies involving domain names and ad networks are supplemental means of enforcement, it did not expressly limit itself to situations where there is a need for such extraordinary remedies. I would hope that courts would nevertheless apply such limits anyway, but that might be asking a lot from a court unfamiliar with the policy debates.

In advance of today’s hearing, SOPA’s main sponsor, Rep. Lamar Smith, offered a “manager’s amendment” to the bill making several changes. Does Smith’s amendment fix the above problems? Yes and no. Continue reading “Son of SOPA”

Interested in Starting Your Own Minor League Baseball League and Joining Organized Baseball? Think Again.

Posted on Categories Public, Sports & Law3 Comments on Interested in Starting Your Own Minor League Baseball League and Joining Organized Baseball? Think Again.

The revival of independent professional baseball, which began with the establishment of a new Northern League in 1993, has been one of the most fascinating developments of the past 20 years in the world of baseball. The website, one of the authoritative sources for information on baseball history, lists thirty different independent professional baseball leagues that have operated in the United States since the early 1990s.

It is curious, though, why none of these independent leagues joined, or so far as I know, attempted to join the National Association, the umbrella organization within Organized Baseball for the minor leagues.

I realize that there are reasons why an independent league might not want to join up with Organized Baseball. Minor league salary restrictions might be more stringent than those in independent leagues, and of course, any independent league with a team occupying the same geographic territory as a team in organized baseball (like the St. Paul Saints) would have to relocate those teams if it affiliated with the National Association.

Continue reading “Interested in Starting Your Own Minor League Baseball League and Joining Organized Baseball? Think Again.”

A Tale of Three States, Part 4: The Racial Threat Hypothesis

Posted on Categories Criminal Law & Process, Public, Race & Law, Wisconsin Criminal Law & ProcessLeave a comment» on A Tale of Three States, Part 4: The Racial Threat Hypothesis

In the previous post in this series, I highlighted a wide gap in the incarceration rates of Indiana and Minnesota, with Wisconsin in the middle.  The ordering of the three states from highest incarceration rate to lowest corresponds with the ordering from highest rate of violent crime to lowest.  However, for reasons I explained in the previous post, I don’t think  we ought to end our analysis with the simple assertion that high crime drives high incarceration.  For one thing, there is Minnesota: with a crime rate only a little lower than Wisconsin’s, Minnesota has an incarceration rate that is much lower.  There must be other factors at play besides just the crime rate to account for Minnesota’s incarceration rate.  For another, to focus on the crime-incarceration connection begs the question of what drives the very different crime rates of the three states.

In this post, I’ll explore another possible way of accounting for differences in the three states’ incarceration rates, the racial threat hypothesis.  The basic idea is this: a larger racial minority population causes the majority to feel more threatened by the minority and consequently to prefer to stronger social control measures.

Here are the relevant numbers from Indiana, Wisconsin, and Minnesota:




Black Population (2010)




Blacks as Percentage of Total Population (2010)




Imprisonment Rate (2010, per 100,000)





As you can see, the incarceration-rate order tracks the order based on the size of the each state’s black population.

Continue reading “A Tale of Three States, Part 4: The Racial Threat Hypothesis”

American Indians and Equal Protection

Posted on Categories Civil Rights, Federal Indian Law, Public, Race & LawLeave a comment» on American Indians and Equal Protection

This is the second in a series of posts addressing some of the most commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post addressed casinos, hunting and fishing rights, and taxes. This second post, unlike the first, is devoted to just one question, namely, why doesn’t the unique legal treatment of Indian tribes or their members violate the Constitution’s guarantee of equal protection? Continue reading “American Indians and Equal Protection”

Why the Use of Performance-Enhancing Drugs by Great Athletes Still Bothers Us

Posted on Categories Popular Culture & Law, Public, Sports & Law3 Comments on Why the Use of Performance-Enhancing Drugs by Great Athletes Still Bothers Us

Football SecretThe recent revelation that Milwaukee Brewer all-star Ryan Braun has tested positive for performance enhancing drugs once again raises the question of why such revelations bother sports fans so much.

The answer lies, I believe, in the typical fan’s feelings about his or her lack of natural athletic ability.  It is one of the sad facts of life that there is no correlation between love of, and enthusiasm for, sport and the possession of athletic ability.  Consequently, the thought that some extraordinary event (or substance) might transform an average or below average athlete into a superstar performer is a very common fantasy, especially among males.

Over the years, this fantasy has generated its own literature.  My three favorite versions are the 1949 movie, “It Happens Every Spring,” Douglas Wallop’s 1954 novel, The Year the Yankees Lost the Pennant (which was the basis for the musical, “Damn Yankees”), and the 1962 comic book story, “Goliath of the Gridiron.”

“It Happens Every Spring” was written by Academy-Award-winning writer Valentine Davies who based the screenplay on a short story by University of Michigan administrator Shirley Smith (who despite his given name was male).  Continue reading “Why the Use of Performance-Enhancing Drugs by Great Athletes Still Bothers Us”

Some Thoughts on Kiobel

Posted on Categories International Law & Diplomacy, Public, U.S. Supreme Court2 Comments on Some Thoughts on Kiobel

A few weeks ago I wrote a post providing a brief background on Kiobel v. Royal Dutch Petroleum Co., the case in which the Supreme Court will likely decide whether the Alien Tort Statute confers federal jurisdiction over claims alleging corporate violations of customary international law. I’d like to offer a couple of additional thoughts on that upcoming decision.

Although not directly at issue in the litigation, Kiobel seems to raise an interesting question about the method by which courts go about ascertaining custom. A core principle of international law is that binding customary norms develop from “general and consistent practice that states follow from a sense of legal obligation.” According to Sosa v. Alvarez-Machain, the ATS provides for federal jurisdiction over civil actions by aliens who have alleged violations of a particular subset of these norms–i.e., those that are “accepted by the civilized world” and defined with a fairly high degree of specificity. Thus, determining whether the ATS provides jurisdiction in any given case often requires a judicial analysis of the nature, extent, and rationale of the practice that has allegedly given rise to the norm that the defendant has allegedly violated. In some cases–such as those involving piracy, offenses against ambassadors, and torture–the jurisdictional analysis is relatively easy because the underlying norm is widely accepted and well-defined. In others, it may be difficult to ascertain whether a given norm has the requisite levels of state acceptance and definitional precision. Continue reading “Some Thoughts on Kiobel”

A Tale of Three States, Part 3: Harsh Hoosiers

Posted on Categories Criminal Law & Process, Public, Wisconsin Criminal Law & Process1 Comment on A Tale of Three States, Part 3: Harsh Hoosiers

In the first post in this series, I explored the large gap between the incarceration rates of Minnesota and Wisconsin. In the second, I discussed racial disparities in the incarcerated populations of the two states. The disparities in both states are wide, although Wisconsin’s are somewhat larger. In this entry, I add a third state, Indiana, to the statistical comparisons. As another medium-sized midwestern state, one might expect that Indiana would have criminal-justice numbers that are similar to Minnesota’s and Wisconsin’s. Indiana’s numbers, however, point to a criminal-justice sustem that is much larger and harsher than those of its northern neighbors.

As detailed in the table that appears after the jump, Indiana’s imprisonment rate (about 460 per 100,000) easily outstrips Wisconsin’s (387) and dwarfs Minnesota’s (178). Perhaps even more surprisingly, Indiana’s probation population also exceeds Minnesota’s. My Minnesota-Wisconsin comparison suggested that Wisconsin imprisons many defendants who would get probation in Minnesota, leading to a much smaller probation population in the former than the latter. But Indiana seems to incarcerate the same way that Wisconsin does, without any accompanying reduction in the probation numbers.

For that reason, Indiana’s total supervised population of 167,872 is the largest of the three states (although Minnesota, with the smallest overall population of three, still has a somewhat larger per capita supervised population, thanks to its enormous per capita probation number).

Indiana also leads the way in crime.

Continue reading “A Tale of Three States, Part 3: Harsh Hoosiers”

Why Dive?

Posted on Categories Environmental Law, Public2 Comments on Why Dive?

As the temperatures drop at this time of year in Wisconsin, my thoughts turn to diving in the Caribbean.

Scuba diving is my family’s hobby, and we have dived (and snorkeled) throughout the Caribbean. I have seen almost anything imaginable on dives except for sharks. I know (and actually hope) they are there, swimming at the edge of the reef, but I haven’t been fortunate to see one yet.

My favorite animal to spot is a ray. The eagle rays look like birds soaring through the water. Once I came close to a barracuda. In my excitement I forgot to back away and had to be pulled back. Another time our boat came upon a pod of dolphins that jumped and raced with the boat.

Continue reading “Why Dive?”

A Tale of Three States, Part 2: Racial Disparities

Posted on Categories Criminal Law & Process, Public, Race & Law, Wisconsin Criminal Law & Process2 Comments on A Tale of Three States, Part 2: Racial Disparities

In the first post in this series, I highlighted a sizable gap between the incarceration rates of Minnesota and Wisconsin.  Although the two states have similar crime rates, Wisconsin has more than twice Minnesota’s incarceration rate (651 per 100,000 versus 310).

In this post, I cover racial disparity data in the two states.  As summarized in a helpful new article by Michael Rocque (“Racial Disparities in the Criminal Justice System and Perceptions of Legitimacy: A Theoretical Linkage,” 1 Race & Justice 292 (2011)), a substantial body of research documents wide racial disparities in the American criminal justice system.  Consistent with the national data, and despite longstanding reputations for progressive politics, both Minnesota and Wisconsin exhibit troublingly large disparities in white and black incarceration rates.

Continue reading “A Tale of Three States, Part 2: Racial Disparities”

Why Following the Rules Should Get You Out of Prison Early

Posted on Categories Criminal Law & Process, Legal Scholarship, PublicLeave a comment» on Why Following the Rules Should Get You Out of Prison Early

I have a new paper on SSRN entitled “Solving the Good Time Puzzle: Why Following the Rules Should Get You Out of Prison Early.” Most U.S. jurisdictions permit inmates to obtain credit toward early release based on good behavior in prison. It’s not immediately clear, though, why the severity of a prison sentence should vary depending on how well an offender follows the rules while incarcerated. No amount of good or bad conduct in prison is capable of changing the seriousness of the underlying crime for which the offender is being punished.

The most common justification for good time is probably that it makes the job of prison administrators easier by giving them an additional set of incentives and sanctions to hold over inmates. Critics question, however, whether the potential loss of good time really does add anything to the deterrent effect of much more immediate sanctions, such as disciplinary segregation. Critics also object that the loss of good time — functionally an extension of the prison term — is not a just and proportionate response to rules violations that may be relatively technical and harmless and that need not be proven through formal trial-type proceedings.

In the paper, I argue that good time can thought of and justified in a different light. In essence, I suggest that good conduct in prison can be conceptualized as a form of partial atonement for the underlying crime. If seen in this way, good-time credits can be justified as a way of recognizing atonement, which seems to me an appropriate objective for the criminal-justice system.

Cross posted at Life Sentences.