Random Criminal Punishment?

diceTalk about thinking outside the box.  Since at least the time of Cesare Beccaria, generations of criminal-justice reformers have dedicated themselves to rationalizing our systems of policing and punishment: weeding out archaic laws, professionalizing the police function, bringing ever more sophisticated science to bear in the detection of crime, humanizing the administration of punishment, and so forth.  But now University of Chicago Law Professor Bernard Harcourt tells us we have been traveling down a dead-end road for the past two hundred years: what criminal justice needs is not rationality, but randomization.  Or so Harcourt argues in a provocative new paper on SSRN, “Randomization in Criminal Justice: A Criminal Law Conversation.”

Should police focus their resources on the inner-city or the suburbs?  Flip a coin, Harcourt suggests.  What maximum prison term should the legislature prescribe for a given offense?  Try drawing a number out of a hat.  Did the defendant really intend to cause the victim’s death?  Get out the tarot cards.

Harcourt’s paper appears in the new book Criminal Law Conversations, along with critical commentary written by law professors Alon Harel (Hebrew University), Ken Levy (L.S.U.), Alice Ristroph (Seton Hall), and some guy named Michael O’Hear.  The SSRN version includes the four responses plus Harcourt’s reply.  The abstract appears after the jump. 

Continue ReadingRandom Criminal Punishment?

Milwaukee Foreclosure Mediation Program Kickoff

With a terrific training session last week for our new volunteer attorney-mediators, I am pleased to report that the Milwaukee Foreclosure Mediation Program is moving forward.  You can link here for the website giving the background details (including generous funding by the city and state — see the announcement by the Dean here) and our training materials.  After the training, I have a better idea of how we reached this crisis (with 7500 homes in Milwaukee in foreclosure) and what options might exist for working this out. 

I don’t expect that all of these cases will magically work out (and some are absolutely ripe for litigation).  At the same time, I am optimistic that this program can help people save their homes.  We will start mediating cases soon and will be tracking not only our immediate settlement rate, but whether people are in their homes six months, twelve months, and twenty-four months down the road.

Continue ReadingMilwaukee Foreclosure Mediation Program Kickoff

The Obama “Hope” Poster Case — Mannie Garcia Weighs In

(This is the 7th in a series of posts on Fairey v. Associated Press. See below for other posts in the series.)

[Update (7/23): The court granted Garcia’s motion to intervene, which was unopposed. AP’s and Fairey’s answers are due Aug. 14, fact discovery will continue until October, and the next status conference in the case will be Nov. 20, meaning we will most likely not get a summary judgement hearing until 2010.]

With the crunch at the end of the semester, my series on the Obama Hope poster case petered out unexpectedly. Among the events I noted silently to myself in the interim were Fairey’s answer to AP’s counterclaims and a trio of NPR interviews on the case with Shepard Fairey, Mannie Garcia, and law professor Greg Lastowka.

There’s nothing like a fresh filing to get one out of the doldrums, however. On Thursday, the other shoe in this case dropped when Mannie Garcia, the photographer who shot the Obama photograph at issue, filed a motion to intervene in the case as a defendant. (Quick, Civ Pro students: what rule?) Garcia’s proposed answer, counterclaims, and cross-claims assert that the photograph is copyrightable, that Garcia, not AP,  is the copyright owner in the photograph, and that Fairey infringed his copyright. I’ll focus on two interesting aspects of the filing after the jump.

Continue ReadingThe Obama “Hope” Poster Case — Mannie Garcia Weighs In