Seventh Circuit Week in Review, Part II: Determining Drug Quantity for Sentencing

This post wraps up the review of new Seventh Circuit criminal opinions that I began yesterday.  In United States v. Fox (Nos. 07-3830 & 07-3831), defendants Fox and Sykes were convicted of various drug trafficking offenses.  Fox was in the habit of getting high with Sykes at Sykes’s house.  In order to support his habit, Sykes sold drugs to others, and, on an uncertain number of occasions, had Fox make drug deliveries to customers on his behalf.  Fox and Sykes were arrested after they participated in a drug sale to an undercover cop, and forty grams of crack cocaine were found by police in Sykes’s house.  The main issue on appeal was whether Fox should be held responsible for those forty grams at sentencing.

Under the Federal Sentencing Guidelines, the quantity of drugs possessed or distributed by a defendant normally dominates the sentencing calculus.  Moreover, a defendant is responsible not just for the drugs that he himself possessed or distributed, but also for the drugs foreseeably possessed or distributed by coconspirators in connection with “jointly undertaken criminal activity.”  This is a controversial — and, in my view, misguided — feature of the Guidelines that can result in very long sentences for small players in large drug trafficking operations.  (My Criminal Law students will recognize parallels between this feature of the Guidelines and the so-called “Pinkerton Rule,” which results in criminal liability for crimes foreseeably committed by one’s coconspirators in furtherance of the conspiracy.)

In Fox, the district court judge determined that Sykes’s possession of forty grams of crack was foreseeable to Fox, and accordingly sentenced Fox as if he had been found in possession of that sizeable quantity of the drug himself.  Fox’s sentence was essentially doubled as a result of this decision.

Continue ReadingSeventh Circuit Week in Review, Part II: Determining Drug Quantity for Sentencing

Not Sleepless, Just Basketball-Less, in Seattle

After forty-one years of playing in Seattle as the Supersonics, the owners of the franchise this season relocated the team, with NBA approval, to Oklahoma City, where it is currently playing as the Oklahoma City Thunder.  Although the city of Seattle is left without an NBA team, public uproar over the move seems to be at a minimum.

In fact, it is now clear, if it weren’t already, that football and baseball occupy a different place in the sports landscape than basketball and hockey.  Nowhere is this more apparent than in the arena of franchise relocation.  When an NFL or MLB team relocates, a movement begins among the representatives of the area losing its team to convince Congress to take away the ability of the teams and leagues to control the location of their franchises.  Sympathetic fans in unaffected cities rally to the cause and Congressional intervention suddenly seems a real possibility.  This happened in the 1960’s and early 1970’s when Milwaukee, Kansas City, Seattle, and Washington, D.C., lost their major league baseball franchises, and it happened in the 1980’s and 90’s when NFL teams in Oakland, Baltimore, Arizona, Cleveland, and Houston moved to new cities offering more lucrative places to play.

In each case, Major League Baseball and the NFL dodged a regulatory bullet, but only because they permitted or arranged for new teams to replace the ones that had abandoned their home cities.  Thus, Milwaukee lost the Braves and got the Brewers; Kansas City lost the Athletics but got the Royals; Seattle lost the Pilots but got the Mariners; Oakland lost the Raiders and then got them back; Baltimore lost the Colts but got the Ravens; St. Louis lost the Cardinals but got the Rams; Cleveland lost the Browns but got the new Browns; and Houston lost the Oilers but got the Texans.  Had the leagues not moved relatively expeditiously to replace the moving franchises, direct Congressional regulation of franchise shifts could well have become a reality.

In contrast, there have been numerous franchise shifts in the NBA and the NHL since 1960’s.

In the NBA, Philadelphia moved to San Francisco; Rochester moved to Philadelphia; St. Louis moved to Atlanta; Buffalo moved to San Diego, which moved to Los Angeles; Cincinnati moved to Kansas City, which moved to Omaha, which moved to Sacramento; San Diego moved to Houston; Charlotte moved to New Orleans; Vancouver moved to Memphis; and now Seattle has moved to Oklahoma City, and no one cares enough to start the ball rolling on congressional hearings, not even the representatives of the cities losing teams.  Why bother?  In the NHL, congressional indifference has been even more profound, as Denver moved to New Jersey; Hartford moved to Raleigh; Quebec to Denver: Winnipeg to Phoenix; and Minneapolis to Dallas.  Some of the abandoned cities in the two leagues got new teams, but that was because it made economic sense to replace them, and not because of any sustained public uproar.

Football and baseball are sports in which American fans are heavily invested, both financially and psychologically.  The same cannot be said for basketball and hockey, even though NBA basketball at least seems to rival the two main sports in overall popularity.  However, fans clearly do not attach themselves to NBA teams (particularly when they do not live in the city in which the team is located) as they do to Major League Baseball and NFL teams.

There are a couple of caveats.  For some reason the strong reaction against relocation does not happen when an NFL teams leaves Los Angeles.  The nation’s second city lost both the Raiders and the Rams, but the protest both in Los Angeles and elsewhere was minimal.  Apparently LA doesn’t need the NFL, although it does serve a useful purpose for current NFL owners, who can always threaten to move their teams to Los Angeles if their current hosts don’t come up with a sufficiently lucrative stadium deal.  To lesser extent, the same phenomenon was true for baseball in Washington.  Washington lost its traditional team in 1960 to the Twin Cities, but it immediately got a replacement team, which the city lost to Dallas eleven years later.  In the early 70’s a number of Members of Congress threatened to revoke Major League Baseball’s antitrust exemption if a team were not returned to Washington.  Although there was an abortive effort to transfer the San Diego Padres to Washington in 1974, that plan fell through, and when nothing else was done, the furor subsided, largely because no one in Washington was going to games anyway.

The other caveat is that really no one cares when the team that moves is a Canadian team.  Canadians may care, but Canadians have especially little influence over the U.S. Congress.  In recent years, Canada has lost two of its eight NHL teams; one of its two NBA teams; and one of its two Major League Baseball teams.  Neither the U.S. government nor, for that matter, the Canadian government has done anything to try to reverse the flow of teams to the South.

But just wait until Mark Attanasio decides to move the Brewers to Sacramento or Las Vegas. That is when we will see Congress spring back into action.  The Brewers may be a poor team, but there are those who love them.

Continue ReadingNot Sleepless, Just Basketball-Less, in Seattle

The View From the Middle

Students and faculty of the Marquette Law School in the early years of the twenty-first century have the benefit of an affiliation with an institution that most outside observers seem to feel is right smack dab in the middle of the law school pool.  Our US News & World Report overall rating is almost exactly in the middle of the pack, and the American Bar Association reports that we are the 90th most selective of the 184 ABA-approved law schools in the United States. Our current median LSAT score (157) is exactly the median LSAT score for all students enrolled in ABA-accredited law schools, and our median GPA is almost exactly the national median as well. In the peer ratings collected by the US News survey, our score (2.3) is exactly the median for all schools, as is our ranking by judges and lawyers (2.8). (Although our judge and lawyer ranking is higher, it is, like our ranking by law professors, exactly at the median. Apparently, lawyers and judges generally think more highly of law schools than do law professors.)

While no one really likes being exactly in the middle — I also think we are “underrated” — it does offer an interesting perspective on contemporary legal education, particularly in regard to who is studying law and who is teaching law at this point in the history of American legal education. Figuratively speaking, half of the schools are above us and half below us, and all are within sight.

I have had the good fortune to attend two law schools as a student and to teach at five (Marquette, Chicago-Kent, Washington University, Washington & Lee, and the University of Virginia). All five schools at which I have taught are usually ranked among the top half of American law schools, and three of them are usually closer to the top than the middle. My overwhelming impression is that the law school experience is essentially the same at all five schools. The curriculums are virtually identical, and the quality of teaching at all five is equally high. I found students at the University of Virginia to be more academically sophisticated than students at the other four, but I found that the experience of teaching at the other four was quite similar. The biggest differences lie in the placement opportunities, which do vary considerably from school to school.

I would be interested to hear the thoughts of others — students, faculty, and alumni — about the significance of our position in the middle.

Continue ReadingThe View From the Middle
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