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!
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.
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.