Beach Reading?

Apparently the news editors at the Los Angeles Times read the Marquette Law Review. That’s at least one possible conclusion one could draw from the juxtaposition of two recently published items.

Dean Kearney is in a unique place to analyze the relationship between the Ninth Circuit and the U.S. Supreme Court, having clerked for judges on both courts. Introducing Ninth Circuit Judge Diarmuid O’Scannlain’s Hallows Lecture one year ago, Dean Kearney noted,

Over the past couple of decades, Judge O’Scannlain has emerged as a leader on the Ninth Circuit. This includes the court’s most important work, its cases, where Judge O’Scannlain plays an unusually important role not only in his own docket but also in the court’s en-banc process. An O’Scannlain dissent from denial of en-banc rehearing frequently gets some attention across the country — in Washington, D.C.

Lo and behold, this past Sunday the Los Angeles Times carried a story highlighting how conservatives on the Ninth Circuit use dissents from denial of en-banc rehearing to send “a signal flare to the U.S. Supreme Court.” Carol Williams’ report gives particular attention to Judge O’Scannlain:

Continue ReadingBeach Reading?

Stealthy or Shifty Tort Change

Much media has been given to the so-called “stimulus package” recently passed and signed into law without members of Congress or the President knowing fully what was contained in the over 1500 pages.  Evidently, no one read the whole bill before taking the decisive action.

A similar approach seems to be occurring here in Wisconsin.  Buried in the governor’s budget bill (A 75 2009-2010 Legislature), at pages 1588 and 1605, are significant modifications of state tort law that have as much to do with the state budget as chewing gum has to do with nuclear fusion.

Section 3223 of the bill contains a provision requiring the court to explain to a jury “the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.”  Translation: “If you find the plaintiff more negligent than that rich old defendant, the plaintiff and his or her lawyer won’t recover a dime!”  Aren’t juries supposed to be finders of fact and not charity institutions?

Section 3271 of the bill changes the Wisconsin comparative negligence rule in two significant respects. 

Continue ReadingStealthy or Shifty Tort Change

Seventh Circuit Week in Review: What If the Sentencing Judge Thinks the Sentence Doesn’t Matter?

The Seventh Circuit had only one new opinion in a criminal case last week.  In United States v. Smith (No. 08-1477), the defendant received a twenty-year sentence for distributing child pornography.  On appeal, Smith challenged his sentence on various grounds, including (most notably) a truly remarkable colloquy between his lawyer and the sentencing judge, in which the judge indicated that the Bureau of Prisons had the authority to decide how much of Smith’s sentence would actually be served in prison.  If the judge’s comments are taken at face value, then the judge’s understanding of the law was clearly wrong.  (The judge was not referring here to the 15-percent reduction in sentence length available for “good time,” but to an alleged authority to release the defendant at “any time” up to the full twenty years.)  Such a mistake would betray not only a disconcerting ignorance of the way the federal criminal justice system has operated since parole was abolished in the 1980’s — a full 85 percent of the sentence must now be served as a minimum in all cases — but would also raise questions about whether Smith’s sentence was set unnecessarily high.  After all, the judge was apparently operating under the mistaken belief that prison officials could release Smith as soon as he no longer presented a danger to the community — given that premise, it is easy to imagine a judge erring on the side of a more severe sentence.

The Seventh Circuit (per Judge Manion) nonetheless affirmed. 

Continue ReadingSeventh Circuit Week in Review: What If the Sentencing Judge Thinks the Sentence Doesn’t Matter?