Professor Erik Luna recently published his article, Judicial Discretion: A Look Back and a Look Forward Five Years After Booker in the Federal Sentencing Reporter. The article is a transcript of a conference about mandatory minimums which was held at the University of Utah Law School. Professor Luna teleconferenced in to give his remarks as part of the panel, which also included: Hiram Chodosh, Allison Weir, William Sessions, Douglas Berman, Steven Chanenson, Benjamin McMurray, Paul Cassell, and Jon Wroblewski.
Professor Luna, in his argument against mandatory minimums, outlined the trivial “cliff effect” that they inherently carry. He gave the example that 4.9 grams crack cocaine carries a relatively short sentence, but add just a fraction of a gram, and 5.0 grams triggers the mandatory 5 years in federal prison. Such a system, he argued, removes the impartial judge from the sentencing procedure and places the arguably partial prosecutor in the sentencing role. Put another way, Prof. Luna stated, mandatory minimums “implicate the separation of powers doctrine by taking away the traditional judicial authority over punishment and vesting this authority in the executive bench, thereby undermining the historic power of the judiciary to check law enforcement.”
Professor Luna also touched upon the troubling effects of mandatory minimums – that they act as a sort of “trial tax” on defendants who exercise their constitutional right to a trial. Additionally, minimums grant excessive leverage to prosecutors, especially upon threat of “charge stacking,” where the government divides up a single criminal episode into multiple crimes to increase the mandatory sentence.
He summed up his remarks by quoting Judge John Martin by saying that “[m]andatory minimums are over-inclusive, they’re unfair, and they can even be draconian. They transfer sentencing power from neutral judges to partisans in the criminal process. They make for poor criminal justice policy and raise all sorts of constitutional problems. Other than that, they’re a great idea.”
Congratulations to Professor Luna for his participation in the conference and on the publication of his article.
In the third installment of the Faculty Workshop Series, sponsored by the Frances Lewis Law Center, Professor Rachel Brewster, an Assistant Professor at Harvard Law School, came to speak on September 27 about her new article, The Remedy Gap: Institutional Design, Retaliation, and Trade Law Enforcement.
The article outlines the World Trade Organization’s dispute resolution policies for international trade violations and how they can be manipulated to impair justice. Under the WTO, a complaining state is only entitled to prospective damages after all legal proceedings are complete, which can take up to seven years. Additionally, if the violating state becomes compliant, any right to sanctions disappear. Thus, a state can drag the proceeding out only to comply with the law at the very end and the complaining state is entitled to nothing.
Professor Brewster argues that this disparity leads to less motivation for settlement between the states and a potential for more powerful states abandoning the WTO mechanism all together and imposing their own unilateral sanctions on states they feel are violating their rights.
Prof. Brewster’s talk spurred intense discussion from attending faculty.
Two studies of scholarship at U.S. law schools highlight the faculty at W&L. Most recently, researchers at the University of St. Thomas School of Law produced a ranking of 70 law schools based on scholarly impact as measured by the total law journal citations over the past five years to the work of tenured members of a given law faculty. W&L ranked 32 in this study.
The St. Thomas study was based on a more limited version conducted by Brian Leiter of The University of Chicago School of Law. Prof. Leiter’s study only ranked the top 25 law schools according to scholarly impact. However, Leiter’s study also looks at top scholars by subject area. W&L law professors Erik Luna and Robin Wilson were both mentioned in their respective areas of specialty, Luna in criminal law and Wilson in family law.
In the second installment of the Faculty Workshop Series, sponsored by the Frances Lewis Law Center, author Alex Heard came to speak to the entire school on September 22 about his new book, The Eyes of Willie McGee. Alex Heard is the editorial director of Outside magazine. He has worked as an editor and writer at The New York Times Magazine, Wired, The Washington Post Magazine, The New Republic, Slate, and other publications.
In 1945, Willie McGee, a young black man from Laurel, Mississippi, was sentenced to death for allegedly raping Willette Hawkins, a white housewife. The case became a national cause. During years of courtroom battles and groundbreaking protests, McGee’s supporters—including William Faulkner, Albert Einstein, Jessica Mitford, Paul Robeson, Norman Mailer, and Josephine Baker—spoke out on McGee’s behalf and flooded President Harry S. Truman and the U.S. Supreme Court with clemency pleas. The Eyes of Willie McGee chronicles this important piece of American history.
Relying on exhaustive documentary research—court transcripts, contemporary newspaper reports, archived papers, letters, FBI documents, and other untapped sources—along with the recollections of family members on both sides, Alex Heard, a native of Mississippi, tells a moving and unforgettable story that evokes the bitter conflicts between black and white, North and South in America.
Professor James E. Moliterno, the Vincent Bradford Professor of Law at Washington and Lee recently published the third edition of his text, An Introduction to Law, Law Study, and the Lawyer’s Role. He wrote the text with Fredric I. Lederer, the Chancellor Professor of Law and Director, CLCT and Legal Skills at William and Mary.
The text is an overview and introduction to the many roles lawyers perform and fill in today’s society, including business people; learned, intellectual professionals; helping professionals; professional writers; people of moral influence; producers of justice; advocates; and counselors. The book is intended primarily for those who are interested in learning what law is and how law students become lawyers. It introduces the reader to a number of skills that are critical to law students, such as opinion reading and briefing, classroom participation, writing, and interpersonal relations.
The book also seeks to synthesize the study of appellate court opinions, the still dominant method of legal education, with the legal and pragmatic consequences that flow from the lawyer’s representation of a client. The book aims to aid the study and understanding of the law and the appellate court opinions by providing a perspective on the beginnings of the process that is not apparent from reading opinions alone.
Bearing in mind the intended audience of the text, Prof. Moliterno consciously attempted to make it easy reading by choosing an informal prose style without the multitude of citations and footnotes customary to formal legal writing.
Congratulations to Prof. Moliterno for getting the newest edition of this text on the shelves.
In the first installment of the Faculty Workshop Series, sponsored by the Frances Lewis Law Center, Professor Lawrence B. Solum, the John E. Cribbet Professor of Law & Philosophy and the Co-Director for Institute for Law & Philosophy at the University of Illinois College of Law, came to speak on September 17 about his new article, The Interpretation-Construction Distinction.
Professor Solum laid out his contention that two distinct and different stages occur when an authoritative legal text, such as a constitution or statute, is applied. The first stage is the interpretation, which seeks to explore the linguistic or literary meaning. During this moment, interpretors analyze the literal meaning of the words to create a basic meaning. The second stage is the construction, which gives the text a legal effect and applies it. This period takes the linguistic meaning and gives it legal force and understanding. Only the latter stage, Professor Solum argues, can be used to resolve any vagueness in the literal meaning of the text.
Professor Solum outlined his theory that the distinction between interpretation and construction is both real and fundamental and understanding the difference helps frame discussions and arguments about the legal effect of statutory texts.
Many thanks to Professor Solum for kicking off the Faculty Workshop Series. A copy of his paper may be found here.
On Tuesday, September 14, 2010, Professor Lyman P. Q. Johnson, the Robert O. Bently Professor of Law, spoke at the University of St. Thomas Law School. He participated in the event, Beyond the Inevitable and Inadequate Regulation of Bankers, which was a comment on Professor Richard Painter’s (University of Minnesota Law School) lecture on The Moral Responsibilities of Investment Bankers.
Professor Jeffrey H. Kahn recently published Principles of Corporate Taxation, part of the West® Concise Hornbooks series. He wrote the text with his father, Douglas A. Kahn, the Paul G. Kauper Professor of Law at the University of Michigan School of Law and Terrence G. Perris, Partner and Taxation Practice Group Leader at Squire, Sanders & Dempsey.
The text serves as a study aide to supplement a student’s casebook and notes to further an understanding of corporate taxation. It is a contracted version of his Hornbook, Corporate Income Taxation (6th ed.). The book begins by examining the tax consequences of a corporation’s making distributions to its shareholders either on account of or in redemption of their stock. It then provides as much depth and coverage as are consistent with the “concise” nature of the book, guided by the scope of topics that are covered in most corporate tax courses. And it does it all in 364 short pages.
Congratulations to Professor Kahn for writing such an invaluable and concise resource for law students in corporate taxation or business planning courses.
Timothy S. Jost: Oversight of Marketing Relationships Between Physicians and the Drug and Device Industry
Professor Timothy S. Jost recently had his article, Oversight of Marketing Relationships Between Physicians and the Drug and Device Industry: A Comparative Study, 36 Am. J. L. & Med. 326 (2010), published in the American Journal of Law & Medicine.
In it, Professor Jost addresses the complex and mutually-dependent relationships that exist in the world between physicians and pharmaceutical and medical device companies. He focuses on one particular aspect of these relationships–payments made by drug and device companies to physicians and their organizations and institutions to market drugs and devices.
He addresses the widely believed thought that drug and device company marketing to physicians creates conflicts of interest that corrupt physician judgment and increase the cost of medical care. The article examines first the economic basis of physician/industry relationships that causes conflicts to arise. It next considers the measures that a number of developed countries have taken to respond to these relationships. Finally, it proposes an approach that would comprehensively address the problems caused by drug and device company marketing to physicians.
Congratulations to Professor Jost on this publication.
Professor Samuel Calhoun‘s article, “Partial-Birth Abortion” Is Not Abortion: Carhart II’s Fundamental Misapplication of Roe, 79 Miss. L. J. 775 (2010) was published over the summer in the Mississippi Law Journal.
The piece is a critical assessment of the Supreme Court’s classification of partial-birth abortion as an abortion. Professor Calhoun demonstrates that the partial-birth procedure in fact does kill a baby during its birth, lending credence to the argument that the procedure is not really an abortion at all, but rather infanticide.
Professor Calhoun then goes on to challenge the extent of Roe v Wade‘s jurisprudential value. He argues that Roe, properly understood, is inapplicable to partial-birth bans. Courts, however, including the United States Supreme Court in Carhart II, have routinely used Roe/Casey‘s analytical framework to evaluate partial-birth abortion. The article proposes that courts return to the rational basis test, rather than Roe/Casey, as the proper evaluative tool.
Congratulations to Professor Calhoun for getting this article published.