What Is an “Offense”?: Another ACCA Puzzle for the Courts

I’ve posted a few times on recent Armed Career Criminal Act cases (e.g., here).  With several Supreme Court decisions last term on the scope of the ACCA, this has been an especially dynamic area of federal sentencing law.  The cases nicely illustrate one of the fundamental problems with the ACCA, which is that Congress sought to single out certain categories of prior state convictions as triggers for the ACCA fifteen-year mandatory minimum, when each state criminal justice system has its own idiosyncratic structure, terminology, and practice norms.  Congress did not, and could not, take into account the particularities of fifty different systems when drafting the ACCA.  As a result, the courts have faced a steady stream of difficult cases requiring them to determine which types of prior convictions from which states actually count as a “violent felony” or a “serious drug offense” (three of which trigger the fifteen-year minimum).  The Supreme Court’s May decision in United States v. Rodriquez provides a good example of the difficulty.

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A Professorial President?

Before last night’s presidential debate, the pundits were saying that Obama had to be less “professorial” and “nuanced” than in his prior debates.  And the post-mortems today seem to indicate that he was successful on this count.  Call it self-serving, but I dislike the implication that being professorial should be regarded as disabling for a presidential candidate.  To be sure, this view has deep roots in our political culture.  For instance, in lieu of watching the debate last night, I attended the Milwaukee Repertory Theater’s production of a 1945 play, State of the Union, in which a neophyte presidential candidate is repeatedly urged by his handlers to avoid specifics and dumb down the language in his campaign speeches.  I take it that this view reflects, at least in part, an assumption that uninformed voters want to be reassured that the world is a simple place; that public policy questions have clear, easily comprehensible right answers; and that their own intuitive, emotion-driven responses are as sound a basis for making policy judgments as expertise and rigorous analysis.  The assumption may or may not be true–perhaps uninformed voters would rather be educated than pandered to–but indulging the assumption ultimately does a disservice to the quality of our political culture and democratic processes.

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Patent Settlements as Antitrust Violations

Earlier this week, I had the chance to participate together with Scott Hemphill and Dan Crane on an interesting conference panel devoted to the antitrust implications of settling a patent suit between rival drug makers. Here is a short version of the issue we discussed.

Imagine someone suing you and then offering to pay you a few million dollars if you agree to settle the case. Sound strange, impossible, or just plain crazy? Well maybe it is for the average citizen. But strange as it may sound, for generic drug manufacturers this is not merely possible; it actually occurs with some frequency, as is documented empirically in Scott’s excellent working paper and in Dan’s important earlier work on the subject.

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