Begging The Question

Friday, October 08, 2004

Take a Walk on the Blakely Side
Prof. Berman at the Sentencing Law & Policy blog has a post up riffing about Blakely and Lou Reed and the Velvet Underground. Well, it got my song-parody wheels spinning, and this is what I came up with.
Blakely came from the west coast, USA.
Kidnapped his wife, so now he had to pay.
Indictment here, enhancement there,
The penitentiary's the place where
He said, "Hey now, they gave me too much time."
Said, "Hey now, they gave me too much time."

Nino and Clarence like the way it was done
Back around seventeen ninety-one:
The jury found all the facts,
The judge's role was much more lax.
They said, "Hey Ralph, they gave you too much time."
Said, "Hey Ralph, they gave you too much time."

And the bloggers go doo, doo, doo, doo, doo, etc.

Professors and judges started making a fuss.
Booker and Fanfan wondered, "What about us?"
Their case the court agreed to hear,
The demise of the guidelines might be near
If they say, "Hey guys, they gave you too much time."
They say, "Hey guys, they gave you too much time."

Breyer cries over all the work he did.
O'Connor says, "Pandora, close the lid!"
But Nino and Clarence and Ruth and John
And Souter too, they're too far gone,
They say, "Hey judges, you gave 'em too much time."
Say, "Hey, judges, you gave 'em too much time."

Congress will surely step into the breach.
And Tony K. says some facts the jury can't reach.
So for a while it'll be a mess,
Over all of this stuff we will obsess.
On Blakely, we'll spend too much time.
On Blakely stuff, we'll spend too much time.

And the bloggers go doo, doo, doo, doo, doo, etc.



Wednesday, October 06, 2004

Milbarge At Large: "Oh, loneliness and cheeseburgers are a dangerous mix!" Edition
What I am doing at work: It's a veritable circus: Porno and murder and drugs, oh my! I've had some immigration and tax thrown in for good measure. I spent most of last week working on a [REDACTED] opinion in a [REDACTED] case. I'll have a longer, more generic post about the clerkship experience soon. But so far, it's been by and large what I expected. I'm having a great time, working on interesting stuff, if not cutting any edges at least pointing them out. The Judge makes up the Judge's own mind, but it's nice and gratifying that the Judge takes the clerks' thoughts into consideration. So far, things have been a little up and down -- a few days of heavy work followed by a few days of very light work. I'm sure it will pick up soon, but I'm not complaining now. (Semi-)Specifically, right now I'm working on an appeal from a criminal conviction and an administrative law case. Both of them look pretty easy, a few hours' solid work. Which means I'll finish them next week sometime. The administrative case is a little tricky because I'm not familiar with the subject matter, but the law looks pretty clear.

UPDATE: I thought of this, but forgot to include it before I published the post. In immigration asylum cases, wouldn't it be neat to see how different things would be if the remedy were locking the alien up in an actual asylum? We could say, "Well, those Guatemalan death squad torturers won't bother you in there, that's for sure, and that's really all you're concerned about, isn't it?" I'd bet that might change the number of asylum petitions we see that don't get filed until years after the alien arrives, and only after removal proceedings start. If we can't throw them in asylums, maybe we could make them spend the night in a haunted house.

Somewhat relatedly, at lunch I was reading How Appealing's re-print of an interview with Seventh Circuit Judge Diane Sykes. Two things jumped out at me. First, I agree with Judge Sykes's position on unpublished opinions (see question # 18). I like the way she pointed out that intermediate appellate courts have both "error-correction and law-development functions." I think that's a good point I hadn't seen put so clearly before. There needs to be a way for appellate courts to correct errors in the lower courts without having to worry about the scope of a rule announced in that case. I don't want to get into this controversy here, as I've already discussed it at length elsewhere, and may again later. But I just noticed that statement.

Also, when she was asked for tips for good brief-writing (question # 7), Judge Sykes had this (inter alia) to say: "Remember to tell the court what you want in terms of a holding -- something more specific than 'affirm' or 'reverse.'" I offered my Ten Dont's for Appellate Advocates a few months ago, and now I wish I had included something about this tip. It's a great one. I've already had at least a couple of cases since I've been here that required me to go around and around with another clerk about whether we should recommend reversing and remanding, vacating and remanding, remanding with instructions (and with instructions to do what?), or just plain vacating. Eventually we figured it out by looking at similar cases and seeing what the court had done, although its practice wasn't wholly consistent. In my case, it didn't really make much difference -- the end result would have been the same regardless of the label. But still, if you're writing an appellate brief, be sure to think about exactly what you want from the appellate court, as well as what that will mean depending on the last word of the opinion. If, for example, you want the court to remand for further proceedings, let the court know what those proceedings would be. If you want a remand with instructions, tell the court what you wish you could have instructed the lower court to do. Again, the court will eventually figure it out, but wouldn't you like to make a suggestion that will be most helpful to your client? You may end up with further proceedings that you could have avoided (or vice versa, you could end up not getting further proceedings you would like to have had). Note that most clerks and a fair number of appellate judges don't have experience in the lower courts, and it's not always obvious what happens after the opinion issues. Now back to regularly scheduled programming....

What I am doing at home: The basic pattern is this. I get home, worn out, and lay on the floor (furniture issues in the new place) in front of the tv for a while. (When I first typed that sentence, my finger slipped and I wrote "work out," which imparts a completely different image.) Some nights, I muster enough energy to fix something to eat or iron a shirt, although rarely both. Some television, some net-surfing, some light reading, and then somehow it's 2:30 and I need to go to bed. I'm in a rut and accomplishing nothing. Most of my stuff is still in boxes. I have no motivation for anything. My mother will be in town at the end of the month; we'll see if I can shake myself out of the doldrums by then.

Re-reading that, it sounds worse than it is. Don't call for help. I'm just not happy, and I doubt that putting away a box of t-shirts is the cure. And I can't sleep, which may or may not be related. Well, to be accurate, I end up sleeping away most of the weekend and don't get anything done then either. I don't want to be melodramatic here. But the answer to "what I'm doing at home" is "very little, because I don't feel like doing anything."

What I am reading: This and that. Magazines mostly. I enjoyed this New Yorker profile of singers/songwriters Gillian Welch and David Rawlings. If you don't know their stuff, read the article, because it explains it better than I could. I really identified with one thing in the story. For various reasons, they got into a habit of working in the wee hours of the night. I'm a night owl, too, and do some of my best work in the still, quiet hours. Anyway, I liked this line: "Welch said the tricky thing about working at night was getting to bed before the birds started singing." Amen, sister.

Also, a true crime book called Bully, the source for the movie of the same name. I saw the film not too long ago, and picked up the book for more. The gist is a group of high-school dropouts decide to kill one of their own, who bullied them. The movie was awfully bleak, and just a few chapters into the book, I think it's going to be even bleaker. An odd thing: The movie was directed by Larry Clark, the same guy who did the very controversial Kids, and some of the themes are the same. But in Bully, one of the girls involved in the murder had been in a child prostitution ring, which seems like it would be right up Clark's alley, and looks like it's going to provide some context for that girl's actions. So I'm curious why Clark didn't mention it in the movie at all. Anyway, it's good so far. I'm not a true crime junkie, but I like reading them every once in a while -- it's like reading a very long "facts" section in a court opinion.

What I am listening to: It's funny. I got a new car with a cd player a couple of months ago, and I listen to fewer things than I used to. I tend to keep the same discs in the car and not change them out too often. Today it was disc two of the Grateful Dead's "Closing of the Winterland, because I like "I Need a Miracle," which is maybe the only song I would ever do a karaoke version of. Also, in response to a conversation Fitz and I were having, I popped in Lyle Lovett's greatest hits album "Anthology, Vol. 1: Cowboy Man." Every song on that album is wonderful. I think "L.A. County" might be my favorite, although it's tough to call. I think my favorite line is in Lyle's ode to his conveyance, "The Truck Song." He notes that "Right lane's the right one, when not in England."

What I am watching: Because there was nothing else on, and because, as mentioned, I wasn't about to do anything else, I ended up watching The Rundown the other night. It's such a terribly craptacular movie, but I sort of enjoyed it. The Rock has some talent. I'm not saying this film is going to become my Point Break (Fitz's guilty pleasure), but I didn't hate it. It's just dumb summer escapism, like The Rock (the movie) or any of those other Bruckheimer nightmares should have been, except they were too bloated with special effects to pay any attention to anything else, like having actors that can act. Yes, I'm saying that The Rock is a better actor than Nic Cage and the current incarnation of Sean Connery. At least he makes a much more convincing action star.

Also, an orgy of college football last week and this one.

What I am thinking about: I'm actually starting to get interested in the presidential election, although I think I'm really more interested in the coverage of it. I have no wish to see Kerry or Bush talking about anything, but I enjoy reading differing accounts of what they said. I'm also thinking about trying to start worrying about maybe looking for a new job. I'm not saying that there might be a connection between the election and my job prospects....but someone has to gather up all those yard signs. Maybe I could be a grief counselor/travel agent for all those people so upset at the result that they have to leave the country.

What I am not thinking about: Pro football, although I do enjoy reading Gregg Easterbrook's Tuesday Morning Quarterback column. I'm probably the only person who reads that column but hasn't watched a pro football game (other than chunks of the Super Bowl) in years. Hmm. Kind of like the election -- I don't enjoy watching the principals, but I like reading the coverage.

I'm also not thinking enough about what I ought to write about. I've got a few good blog posts in the works, but I want to (and ought to) write something more substantial, like an article to shop for publication. But I'm blanked out on topics -- at least topics appropriate in scope for the time I have to devote to them, sans research assistants. Unless anyone wants that job -- I promise very limited sexual harassment. So, anyway, if there's something you'd like to read a law review article about, let me know. I'm so devoid of good ideas that I can't even come up with something for Evan's Wednesday Guest Column slot.

Shout-Outs: 1. To the universities of Kansas and Missouri, for changing the name of their annual football game from "Border War" to "Border Showdown." As the article notes, the rivalry started from an actual border war. But I still think this is a nice move.

2. To the blog Field of Schemes, which has all the info you could ever want on the Expos' move to DC and other sports stadium/financing news.

3. To this classic bit of overstatement a friend mailed to me before ESPN edited their story on Scottie Pippen's retirement: "The 17-year veteran, who led the Chicago Bulls to six NBA championships and returned last year to the team for what turned out to be an injury-shortened season, is expected to announce his retirement Tuesday." As my friend asked, "Is there anything in there that stands out to anyone else?"

4. To Prof. Berman at Sentencing Law & Policy and Jason Hernandez at the Blakely Blog for some great stuff about Blakely-related issues. Also, as usual the gang at SCOTUSBlog has great coverage of the cases before the Supreme Court as it starts its latest Term.

5. To Mr. P for betrothing himself. It's one thing to note your marriage proposal on your blog. But I'm waiting for that day when someone proposes via the blog. That's when I'll know the blog revolution has arrived.

6. To Soup for giving me a reason to turn my computer on every day: the JB Catfight.

(Note: This post's title comes from a hit-or-miss "Simpsons" episode in which Lisa babysits Bart. Bart is injured, and Lisa takes him to see Dr. Nick. While there, they encounter the Comic Book Guy, who groans the line in the title.)



Tuesday, October 05, 2004

"People will come, Ray. People will most definitely come."
I mentioned that last week I went to a baseball game. The original plan was to go with my good friend, just the two of us. She played softball in high school and is a big baseball fan. Unfortunately, she's from greater NYC, so her team is the Yankees. This fact is not a friendship-ender largely because her favorite Yankee is Don Mattingly, a/k/a "Donnie Baseball." I think Mattingly's probably my favorite Yankee, too, but for different reasons. Sure, he was apparently a great guy and a team leader and a hard-working and accomplished ballplayer. But I like him because in all his years with the Yankees, they never won a title. So when I think of Mattingly, I smile at the Yankee ineptitude of those years.

Anyway, my friend (I'll call her Jen for convenience) and I were planning this outing for a long time. It was the last homestand of the year, and it was shortly after I moved to town. So we made all our plans, and decided to get the cheap-o $10 tickets and try to move up once inside the stadium. (The game was meaningless in the playoff race, and we didn't figure it would sell out.) Well, the day before the game, Jen's fiance's schedule freed up, so he was able to join us too. That was fine; he's a nice guy and fun to hang out with. But it did have the effect of making me the third wheel. But as it turned out, the fiance had mentioned the game to two of his co-workers (a married couple), and they decided to join us too. So now I'm the fifth wheel.

The plan was for us (me, Jen, fiance) to meet them at the stadium and get tickets then. None of us were worried about not being able to get tickets. They, however, were. They got there earlier than we did, saw that the game was going to be a bit more crowded than we thought (although far, far from a sellout) and went ahead and bought tickets. But, two crucial facts: (a) somehow they didn't get the message that I was involved. I guess they assumed/understood from fiance that it would just be Jen and fiance. So they bought only four tickets. And (b) they decided to get the best available tickets, which were $40 seats behind the bullpen.

So, once we met the other couple and figured out the situation, dilemmas arose. Jen was pretty upset that they would assume that $40 tickets were reasonable to buy without prior consent. And it put her and me in a spot. She didn't want to abandon me to the nosebleeds by myself when the whole thing started as a way for us to spend some time together, and we figured that the seats were good enough we couldn't count on me being able to sneak into their section. For me, I could have bought the $10 ducat and tried to move up, but there were no guarantees I'd ever end up anywhere near them. And there wasn't a lot of sense in Jen wasting a $40 ticket to sit with me in a worse area (and also not sitting with her fiance). Plus, Jen felt that it wasn't right to make me pay to sit in their section just because fiance's friends stuck them with the expensive tickets.

I wasn't as upset about the ticket price as Jen, who is building a house and on a tight budget. And I'm willing to spend money at a rare outing like this. So I wouldn't have been too bothered about spending $40 if we had arrived at a mutual decision to do so. But generally, I don't pay top dollar when cheap tickets are available and mobility is possible. Ultimately, I decided to suck it up and get a ticket, at the same price, in the next section over (the closest I could get to their seats). As it turned out, I was basically across an aisle from them, and there were enough open seats near me that Jen was able to shuttle back and forth during the game. (There were enough free seats for her to be able to move, but it wouldn't have been possible for all five of us to move up to that spot.) We spent about half of it together. And they were great seats, and it was a good game. So, I wouldn't consider it an evening poorly spent.

I guess the reason I posted this -- other than to feed the Beast demanding new content -- is because it's a nice little anecdote, and I'm curious to know whether everyone shares my sense that it's bad form to buy $40 tickets in this situation and assume that's cool with the rest of your party (especially when you don't know how many are in your party). And during the writing, I got to wondering about the ethics of moving up in stadiums like we planned to do. In the strictest sense, it's probably stealing, because we're getting something we didn't pay for. And the team could certainly eject us for it, I suppose. But does it make a difference that it's an accepted practice, especially in baseball stadiums? For evidence of this, I submit ESPN's summerlong series analyzing all the major league stadiums. One of the criteria in the rankings was the ease of "trading up."

(Note also that it's commonly called "trading up," which would seem to imply a trade -- but what is the fan giving up? I suppose the fan is giving up an item of lesser value -- the cheap seat -- in return for an item of higher value -- the more expensive seat. But it's not like the fan is really giving that up. It's not like the team could re-sell the cheap seat after you abandon it. And if you're busted, chances are you'll be able to return to the cheap seat anyway, so it's not like you've permanently relinquished it.)

Okay, so is everyone with me on this? Buying the $40 tickets was a bad call, and trading up is cool, right? Thanks.

(This post's title is from Terrence Mann's big speech in Field of Dreams. I thought of it because of this line too: "They'll arrive at your door as innocent as children, longing for the past. 'Of course we won't mind if you have a look around,' you'll say. 'It's only twenty dollars per person.' They'll pass over the money without even thinking about it; for it is money they have and peace they lack.")



Monday, October 04, 2004

Let me show you my tattoo
In the CDB song "The South's Gonna Do it Again" what, exactly, is the South going to do again? I'll confess that I've always been a little confused by that one. I'll also confess that I'm listening to Going' South Volume 2 which includes the following "classics" of southern rock:
Midnight Rider by the Allman Brothers
Can't You See by The Marshall Tucker Band
What's Your Name by Lynyrd Skynyrd
The South's Gonna Do It Again by Charlie Daniels Band
Caught Up In You by .38 Special
I'm No Angel by Greg Allman (solo)
Jim Dandy (popularized in the feature film Overboard starring Kurt Russell and Goldie Hawn) by Black Oak Arkansas (thanks for pointing out the scrivener's error, Milbarge)
Walk Away by James Gang
Move It On Over by George Thorogood & the Destroyers
There Goes Another Love Song by the Outlaws
Don't Misunderstand Me by the Rossington Collins Band
Fooled Around And Fell In Love by Elvin Bishop
Slow Ride by Foghat
The Rambler by Molly Hatchet
Keep On Smiling by Wet Willie
So Into You by the Atlanta Rhythm Section
Freebird by Skynyrd
There are some good songs on this list and some bad (really bad) ones, but I only paid $4 for it. It was worth every penny and not a penny more.

Note: This playlist is a how-not-to lesson for aspiring mixtape artists.





The new Atkins-friendly MRE's are finally here!
From a Mudville Gazette post entitled Cowboy Up:
The Beef Steak MRE has a Slim Jim in it for a snack. Now that's Beefy. Maybe too beefy. You ever eat a steak and think "If only I had a Slim Jim chaser my life would be full"? No - that thought never occurred to you? And the same meal comes with beans as a side.
Read the rest. You'll like it. The rest of the blog is good too, especially if you have any interest in the war in Iraq, as Greyhawk is now blogging from southwest Asia.





Convergence
I love it when two posts come together like this. A couple of weeks ago, I mentioned that my co-clerks were discussing a local gym where the pro cheerleaders work out. Then, last week, I discussed women on Match.com restricting their potential love interests by height.

Well, a few days ago, I went to a baseball game with one of my oldest friends, who's now like a sister to me. We always have good conversations about my dismal love life, because she's going to give me the straight dope. Anyway, she endorsed the evolutionary theory of height advanced by Fitz-Hume, but we didn't get to discuss it in too much depth, because the following tangent took over:

She: "Yeah, I know what you mean. [A mutual friend's ex] was tall, and [friend] liked that about him. And we [my friend and her fiance] have a friend who's really tall and gets all kind of women, and he's not that great a guy -- I don't think you'd like him. But he's dated like three of the [team] cheerleaders."

Me: Nothing. Mouth agape.

She: "Yeah, he even thought about getting a team picture and crossing off the ones he scored with. He calls us all the time to see if we want to hang out with the cheerleaders."

Me: "How could you have known me for ten years and not think that I would want to be friends with a guy who could introduce me to professional cheerleaders?"





Follow-up on Child Porn and the Commerce Clause
Since I was called out by Fitz in a recent post, I'll answer the bell. Fitz linked to (and scooped Bashman on) a recent Eleventh Circuit case vacating a federal child porn conviction because of an insufficient link to interstate commerce. Howard noted the decision here, and Fed. No. 84 discussed it here (subbing for Ken at CrimLaw) and here on his own blog, Crime & Federalism (and see also this follow-up).

Howard suggested that either (a) the prosecutors really screwed up this case, or (b) child porn prosecutions in the Eleventh Circuit are now a dead letter. I don't think it's either. My sense, from a brief scan of the opinion, is that the Government went forward with the best it had, but couldn't, as the saying goes, make chicken salad out of chicken shit. They simply didn't have any evidence at all that any of the child porn came from out-of-state. And so they relied on the computer disks -- manufactured out of state -- for the nexus to interstate commerce. The court said, like the Ninth Circuit in a similar case, McCoy (see Fed's follow-up for more on that one), that this isn't enough. (The prosecutors in McCoy relied only on the camera used to take pictures.)

Generally, though, there's going to be something more. Either there will be some proof that the pictures themselves were taken out of state, or there will be evidence of emails and downloading and other uses of the facilities of interstate commerce, or there will be some evidence of economic activity, like purchasing pictures. So, even if this case stands for the proposition that mere possession of child porn isn't a federal crime (and I don't think it goes that far), prosecutions are still viable as long as there's some evidence that the possessor got it from out of state, and it didn't just magically appear on his computer. Of course, this isn't legal advice, and I'm not your lawyer. My advice is not to possess child porn at all. Don't forget that the state can still prosecute, too.

Two final thoughts. First, I didn't get an indication of this in the opinion, but it's remotely possible that the Government was, in effect, sandbagging here. I'm reminded of last Term's Supreme Court case, U.S. v. Flores-Montano. There, the issue was border searches of gas tanks. The Government probably had reasonable suspicion as to the particular car seached, but at trial expressly disclaimed that it had reasonable suspicion, because it wanted to get a ruling that reasonable suspicion wasn't required. (It got that ruling, too, but it should have also enjoined me from using the term "reasonable suspicion" three times in one sentence.) Otherwise, courts could have simply avoided deciding what level of suspicion was required by assuming the higher standard prevailed and finding that the Government met it anyway. In a similar vein, he Government might have elected not to present certain evidence because it wanted to find out what kind of absolute bare minimum connection to interstate commerce would support a conviction. Now, I don't think that happened here, if only because child porn cases aren't the kind that the Justice Department tends to take a dive in. But at some point, the Government elected to go forward with a pretty flimsy tie to interstate commerce, which might mean it was really gung-ho about this, but it might also mean that it was looking for a particular holding.

Finally, note that the Eleventh Circuit will soon hear en banc a challenge to a federal church arson conviction on Commerce Clause grounds. That case, and the upcoming Supreme Court argument in Ashcroft v. Raich, will answer a lot of questions about the scope of federal criminal law vs. the Commerce Clause. Stay tuned.



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    The views presented here are personal and in no way reflect the view of my employer. In addition, while legal issues are discussed here from time to time, what you read at BTQ is not legal advice. I am a lawyer, but I am not your lawyer. If you need legal advice, then go see another lawyer.

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