Corrupt Hive

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Archive for October 2008

Liberal or Conservative Legal approach?

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A personal legal philosophy is important to understanding there approach to the law. There is a sense in which I am liberal and a sense in which I am conservative. As someone who worked in the halls of Congress, my most fundamental value is that I believe in the value of democracy (with a small “d”) as a means of dispute resolution. Because of this, I see a narrow role for the courts as a jurisdictional matter. I think modern courts are much too willing to thrust their noses into places where they don’t belong and usurp prerogatives of Congress and state legislatures. I don’t believe that the courts’ motives for this usurpation are necessarily bad; they are simply trying to deal with the case or controversy that has been presented to them. Merely because someone approaches a judge with a problem, however, doesn’t mean that the judge must therefore be the best person to resolve that problem; in most cases he or she isn’t. So in this sense, I have a conservative judicial philosophy because I believe that the role judicial courts should play in American life is quite limited. Another way of looking at this, however, is to say that I have a liberal political perspective because I believe that the power of the people as a whole should be quite large.

On the other hand, I tend to be liberal as a matter of policy when it comes to the administrative side of the courts. That is, once a case or controversy does fall into the scope of a court’s power, I believe that the court has a relative freedom to run the case as he or she see fit. For example, as I have blogged about below, in sentencing matters I am willing to give a judge wide latitude in the sentences they impose (only confined by the broad outlines set by the legislatures) even at the risk that sentences, when compared socially, appear to be arbitrary. Put another way, I defend a wide scope to judicial discretion and I like to mock what I call the modern tendency of a “Clerkship of the Judges”: the tendency of judges to embrace their job as if they were nothing but a high-paid clerk with no independent power to act on their own.

Put simply, I believe that the power of the courts should only be triggered in unusual circumstances but once triggered that power should be wielded expansively. A position that seems to be the flip side of the way the law is dealt with today.

In defending the power of democracy, it should not be assumed that I agree or disagree with any specific policy. Much of what Congress does is pointless if not actually harmful. I just simply think that history shows that for all it’s problems, democracy as a means of dispute resolution is better than anything else man has yet devised.


Written by Daniel

October 23, 2008 at 11:19 am

Posted in Uncategorized

18 U.S.C. Section 3553(a)(2) and Procedural Error

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Over at Sentencing Law and Policy a commenter has argued that 18 U.S.C. Section 3553(a)(2) still requires judges to provide specific reasoning for their variations from guidelines sentences. As a constitutional matter, this may be correct; I am not an expert in the nitty gritty of what is dicta and what is not in Gall and whether Gall’s call for an explanation is enough to overturn the wording in 18 U.S.C. Section 3553(a)(2) that calls for a specific reason. In my post below regarding US. v Levinson, I argued that the court’s conflation of the concepts reasoning with explanation was wrong. It is possible, however, that the court’s conflation actually has its origin in the confusion of SCOTUS when it wrote Gall. This is a nuanced argument and I need to consider it fully.

In any event, even if 18 U.S.C. Section 3553(a)(2) is still good law it doesn’t undermine the heart of my comments regarding US. v. Levinson, which is an argument based upon proportionality. Nor does it address the foundational issue of how specific a reason has to be to qualify as a “specific reason,” which still remains a subject of debate.

Written by Daniel

October 2, 2008 at 11:16 am

Posted in Uncategorized