Supplemental Jurisdiction

Bar Review

Happy July 4th everybody! Unless, of course you are taking the bar exam this summer, in which case today is the generally accepted start of crunch time. Up until now, you've probably been taking it fairly easy, going to Bar Bri, maybe playing some golf, whatever. Don't worry, I was the same way.

Anyway, over at Clearly Erroneous, Just another law clerk has posted 5 "tips" to prepare for the bar. Long-time readers of SJ may remember that I, too, have given five valuable tips for bar preparation. Comparing the two, mine offers much more practical advice, whereas JALC's will only help you "pass," for whatever that's worth.

Right, but seriously, that CE list be crazy:

1. Pack now? Look, the bar exam is only two days long (three if you're in a shitty state or taking two different bars). Just wear the same clothes everyday. It will demonstrate how focused you are and totally psych out your fellow bar takers (let's not forget this is a competition), who will say things like, "Holy shit, that kid is so dedicated to passing he doesn't even have time to change clothes," and "I threw up a little in my mouth when I sat down and smelled the guy next to me, who clearly hasn't changed his clothes from yesterday." Of course, you'll overhear that comment and think to yourself, "Yeah you smelled me, that's the smell of victory!" Only it won't be, it really will be B.O.

Supreme Court Rules President Bush Is Presumptively Unreasonable

Ok, it is late around here so I don't want to get into too much detail about this right now. In fact, I'm sort of thinking of writing a short article (like, newspaper/magazine article, not law review article) about this because it is kind of funny, but kind of sad, at the same time.

Anyway, as you've probably heard, President Bush commuted Lewis "Scooter" Libby's 30-month prison term. This means the conviction still stands. However, as the president explained in his statement, "I respect the jury’s verdict . . . But I have concluded that the prison sentence given to Mr. Libby is excessive.”

So, the president, in exercising his constitutional discretion, reduced Libby's sentence. If you'll remember, the reason Libby got 30-months to begin with is because that was the low end of the advisory sentencing guidelines range. Thus, the president essentially downward departed in reaching Libby's sentence. In fact, this represents a 100% departure. If the president were a district court, almost any circuit court would reverse his decision to depart so significantly.

In fact, Bush commuting Libby's sentence brings up an interesting question: Does this case prove that there are situations where a prison sentence within the advisory guidelines range is unreasonable? Clearly the president here thought so. But what about the Supreme Court's take.

Just two weeks ago, the Supreme Court in Rita v. United States held that circuit courts could presume sentences within the advisory guidelines range are reasonable. The majority opinion explains:

[T]he presumption reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case. That double determination significantly increases the likelihood that the sentence is a reasonable one.

Slip op. at 8. I'll have more to say about Rita specifically later, but for now, this makes me wonder about the president's decision to commute.

In Libby's case, the sentencing judge and the Sentencing Commission clearly reached the same conclusion as to the proper sentence. Thus, under the Supreme Court's interpretation, the D.C. Circuit would be allowed to find that that sentence is presumptively reasonable. (I'm not sure if the D.C. Circuit has adopted such a standard, but my guess is that if it hasn't, it soon will given Rita.) Does this mean that the president's decision to commute, which represents a 100% departure from the advisory guidelines sentence, is presumptively unreasonable? The technical answer is no, because that's not what the Supreme Court said; just because the guidelines are presumptively reasonable does not necessarily mean that nonguidelines sentences are presumptively unreasonable. In reality, however, I would argue that the presumptively unreasonable standard is closer to the truth. Circuit courts demand district courts thoroughly justify departures based on 3553(a) factors to an extent not required of guidelines range sentences. Moreover, you would be hard pressed to find any circuit court that would agree reducing a 2 and 1/2 year sentence to 0 months is "reasonable," no matter the 3553(a) justifications. (I would say a circuit court has never done this, but there might have been some early post-Booker cases that did this, and I have no desire to research this right now. However, I think now, almost 3 years after Booker no circuit court would do that.)

So who is right? Does this case prove that there are situations where the guidelines are not reasonable (and thus illustrating that the "presumptively reasonable" standard is flawed by giving too much deference to the guidelines in practice)? If not, has the president proven that his decision is unreasonable under the law, but that he is going to ignore the law to help a brother out? I dunno, I'm too tired to think about it right now.

Right, so the point is I think it is kind of funny that President Bush's commuting of Libby's sentence could be considered unreasonable under Supreme Court precedent. (Although obviously the president's power to commute is not subject to judicial review.) I also wonder if the president would have agreed with a district court that had similarly reduced a sentence from 30 to 0 months based on 3553(a) factors, or whether he would have used it as yet another example of liberal, activist judges.

KeyCite

So, tonight, you might find yourself sitting around your house, enjoying some post-dinner coffee and dessert, when you think to yourself, "Surely, after almost two-hundred years, it can no longer be the case that the power to tax is the power to destroy."

Well, despite all our social and technological advances, today the Supreme Court reminds us McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), remains good law. See Watters v. Wachovia Bank, No. 05-1342, slip op. at 5 (Apr. 17, 2007).

Also, do you think the converse is true: That the power to destroy is the power to tax? I mean, as lawyers we're always arguing the greater includes the lesser. Do you think there will ever be a season of 24 where, instead of stopping terrorists from nuking Los Angeles, Jack has to keep the terrorists from levying excise and income taxes against the American people? Because I'm a little upset I just had to legitimately fork over an extra $1000 to the government; I'll go bat-shit crazy if I have to start paying a terrorist tax as well.

One Last Bar Tip

A major part of the bar is having intestinal fortitude. By this, I mean keeping your cool during the exam. Last year, I witnessed some kids get up and walk out during the middle of the test. Others just didn't return after a break. If you do this, you fail for sure.

Right now, you're probably thinking, "It's easy to say 'keep your cool,' but I can't help freaking out right now." True, but trust me, once you start actually taking the bar, you'll calm down and realize it is a lot like every other test you've ever taken. Just remember to focus and fight off the fatigue. And keep telling yourself that you can make it through this if you concentrate.

I have a feeling that a lot of the people who don't pass the bar failed in large part because they didn't manage their emotions well. It is natural to freak out before the test. But don't cave into your "flight" mechanism, and I think you'll give yourself an excellent chance of passing.

More Bar Exam Stories

The bar exam is a week away.  Thinking Fool does a great job of describing the night-before experience.  It closely tracks my own experience, which went something like this:

On Monday, I awoke and went over the trusts and wills outlines once more (this turned out to be a good thing because a trusts question showed up on the exam).  About 11 AM, I couldn't stand being in the house any longer, and decided to go for a run.  Those who know me know I don't just go for runs.  But with my pent up nervousness, I managed to run an entire mile at a fairly brisk pace, which is good considering how out-of-shape I was after a summer of doing nothing but studying.

After a small lunch (no appetite), I packed up my stuff and started driving to my exam location, which was about an hour away.  That was actually very relaxing:  I listened to some awesome tunes and called a couple of friends and bitched about the bar.  By the time I got to my motel, I was fairly calm.  They had wireless internet, so I unpacked my computer, then met a friend for dinner.  Although both of us were on edge, the dinner helped us chill slightly.

That night I reviewed some notes, called some more folks, surfed the internet, then climbed in bed and just zoned out in front of the TV.  Is there anything more comforting than the soft glow of TV?  By midnight, I was getting kind of tired and decided to hit the sack.  I took a couple of extra strength Sominex and went to bed.

Unfortunately, I only slept about 20 minutes before I woke up again.  After that, nothing could get me to sleep.  I would just lay there, trying to think of anything but the bar.  By 2 AM, I got up and took another Sominex.  I promised myself that would be the last one because I didn't want to oversleep or have trouble staying awake during the test.  At 3 AM, I took another Sominex (bringing the total to 4; the directions recommend only taking 1).  I finally fell asleep around 4:45, only to be awoken at 5:30 with my wake-up call. 

I will say that the next morning I felt ok.  The adrenaline really did its job keeping the Sominex at bay.  Even into the afternoon I was doing fine, except by the time I got to the last essay, I had run out of gas.  Essays here are short, averaging about 30 minutes each, but I knew my shit and had cruised through the first 5.  However, I took about an hour on the last one, and I only made it by reminding myself "Dude, you can do this.  Just finish it.  Concentrate."  Coincidently, that's the same thing most girls are thinking while they're on dates with me.  I'm awesome.  (On a related note, that turned out to be my best essay, scoring a 12 out of 12.  I know I'm lame for bragging, but I did that on an hour's sleep and a four Sominex hangover.)

So what's the point of this story?  When you're having trouble sleeping the night before, remember that you are not alone.  Other people are struggling just like you at that exact very moment.  Moreover, people have sleepless nights and go on to easily pass the exam.  So can you.  The other moral is that you should probably chug at least 5 Sominex; four just doesn't cut it.

One final comment:  Someone found this blog by searching for "slackers who passed the bar exam."  I've got news for you:  That's never happened.  Unless you've done your 1000 MBE practice questions, attended every Bar-Bri lecture (twice), formed a study group at least 3 months before the test, taken both the 3-day and the week long PMBR courses, researched every essay question over the past 25 years, Shepardized the U.S. Code, memorized all the cases from the past four Supreme Court terms, and made some flashcards, you aren't going to pass.  No frickin' way. 

Bar Review

It's that time again:  the Bar exam.  Long time readers probably remember my earlier tips (available here if you don't already have them bookmarked from the last time you took the bar).  Anyway, I'm back with more:

You know that guy in your Bar-Bri class that has been studying nonstop, 12-hours a day since the class begin, while the only time you've spent "studying" is the time you've sat through the tape-record lectures?  You know the guy I'm talking about, the guy you keep saying "needs to chill out" and is "taking this thing way to seriously."  Yeah, well, I've got news for ya:  He's doing the bare minimum amount of studying.  Real gunners only need 4 hours of sleep a night.  So, you might as well give up now; you're going to fail.

However, I might have the solution to your failure problems which I learned from some of my pre-med friends in college.  In your class, find out who the real suckers are, the kids who are even bigger slackers than you.  Tell them you have some sweet outlines and you're more than happy to share them.  Then hand over a bunch of outlines with incorrect information scattered throughout.  Remember, the whole thing can't be a lie, otherwise even they will catch on.  But, leave out crucial information, such as Intermediate Scrutiny.  And spread misinformation:  Larceny is a general intent crime.  If this strategy is good enough for the future doctors of America, then surely it is ok for you who is about to become a soulless lawyer.

More tips to follow, if I think of anything.

Civil Saturday

I don't usually post on Saturdays, so you know I must be really excited about this:

During [Kanye] West's testimony Thursday, U.S. District Judge Kevin Castel asked him to say the first two lines of Ludacris' ''Stand Up.'' West hesitated but finally blurted out a line laced with a harsh profanity.

''I'm sorry I asked,'' the blushing judge said with a chuckle as nearly everyone in the Manhattan courtroom, including the jurors, laughed out loud. ''I think I'm going to withdraw my question.''

West created the beat and opening two lines of the 2003 hit, and Ludacris finished it.

Word. Kanye and Ludacris dropped it like it's hot in a federal courtroom.

Op-Ed

I'm thinking of submitting a guest essay to Evan Schaeffer's Legal Underground entitled "Appellate Advocacy:  Don't F--- It Up."  Any suggestions?

Dressed Down

Recently I observed some appellant arguments where I witnessed the following exchanges:

Lawyer: . . . and with that, I'd like to apologize to your honors for running over my allotted time.

Judge: Counselor, would you also like to apologize for citing the [Name of Case] case to 405 F.3d instead of 406 F.3d?

Lawyer: Uh, yeah, I guess I do apologize for that, your honors.

And the second conversation:

AUSA: I see my red light is on. Thank you.

Judge: Mr. [AUSA], could you grab your red brief for a moment?

AUSA: Sure, judge.

Judge: Turn to page 35.

AUSA: Um, ok . . .

Judge: Here you say by making the motion for a third-level sentencing reduction, the government allowed the court to decide whether the defendant qualified. You then state that this was an appropriate grant of authority. Mr [AUSA], authority to decide this issue does not reside in the U.S. Attorney's office and the U.S. Attorney certainly does not allow the court to do anything.

AUSA: Yes, of course, your honor.

Poor Decisionmaking

I came across this case last week, United States v. Anderson, that serves as an example of how you shouldn't get too cocky during your criminal trial, especially when you're the defendant.  (You can find the full opinion here.) 

The gist, courtesy of the Decision of the Day blog:

Last week, the Eleventh Circuit addressed a claim of vindictive charging in U.S. v. Barner, discussed here, and today, the Eighth Circuit addresses a claim of vindictive sentencing. Paul Anderson used his church connections to swindle 22 victims out of their life savings. The district court enhanced the sentence because Anderson’s victims were unusually vulnerable, and Anderson appealed. The Eighth Circuit remanded for specific factual findings about the vulnerability of Anderson’s victims.

Anderson received a 108-month sentence from the district court.  As noted above, he appealed, arguing that his victims were not unusually vulnerable.  The Eighth Circuit agreed that the court had not made specific factual findings regarding whether the victims were unusually vulnerable, so it remanded.

You'd think this was a big win for Anderson, and normally it would be, but while his case was on appeal, Anderson decided to take justice into his own hands:  He filed liens against the district judge's property.  (These liens were highly suspect, as Missouri brought felony charges against Anderson for filing the liens, but later dropped the charges.) 

On remand, the district judge recused himself, presumably because of a conflict-of-interest, and the case was reassigned to a new district judge.  After making specific factual findings regarding victim vulnerability, the new judge held up the original judge's determinations of the appropriate sentencing guidelines range (the top of the range was 108 months, Anderson's original sentence).  The judge then went on to state, however, that the advisory guidelines were "inadequate and insufficient to adequately identify [Anderson’s] conduct.”  (You can almost hear Anderson going, "Oh, crap, Booker goes both ways.")

The resulting sentence:  120 months.  For all you non-math majors out there, that's a whole extra year from his previous sentence.  (I don't know why I just said "for all you non-math majors out there," as I, myself, am a non-math major.)

Anyway, Anderson appealed again complaining this was a vindictive sentence, but the Eighth Circuit disagreed, saying while you might presume vindictiveness from the original judge, there is no such presumption where a new judge is assigned upon remand.  The Eighth Circuit then noted that, in this case, it was Anderson's own actions which eliminated the presumption by causing a new judge to be assigned.  Smackdown! 

The moral:  When you're fighting a 9-year prison term, don't be a jerk while your case is still on appeal.  You might just end up with more than you bargained for.

Electioneering

In my part of the world, it's springtime of an even-numbered year, and that can mean only one thing:  General Assembly Candidate Filings for the Primary Election.  While many commentators will focus on the national races this year, the one race to watch is in the 150th House District.  Go ahead, look at the candidate list here.  I haven't taken a close look at the most recent polling data, but I'm predicting an incumbent upset.  Come November 7, remember you read it here first at SJ.

H/T to a loyal reader.

This Week on Smackdown . . .

More judicial opinions need to cite the wit and witticisms of Adam Sandler.  In his "Order Denying Motion for Incomprehensibility," Leif M. Clark, United States Bankruptcy Judge for the Western District of Texas, included this footnote:

Or, in the words of the competition judge to Adam Sandler’s title character in the move, “Billy Madison,” after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance.

Mr. Madison, what you’ve just said is one of the most insanely idiotic things I’ve ever heard.  At no point in your rambling, incoherent response was there anything that could even be considered a rational thought.  Everyone in this room is now dumber for having listened to it.  I award you no points, and may God have mercy on your soul.

Deciphering motions like the one present here wastes valuable chamber staff time, and invites this sort of footnote.

I wonder if the defendant can use this order as prima facie evidence of malpractice.  I mean, damn, the judge thought so little of the argument, and was so confident of the order's unappealability, he busted out Billy Madison.

H/T to SMP? for this link.

Finally, apparently someone had the good sense to arrest Yanni this weekend.  He's up for domestic battery.  If he ends up going to jail, I can only consider his impending and inevitable man-rape as justice for all the terrible music he unleashed on the world.  In fact, the only way it could get better is if Kenny G was there also, and it was like Thunderdome, where Yanni and Kenny G had to fight to the death.  Only instead of two men entering and one man leaving, they'd both die.  Someone needs to make me a warden.

Cowboys

Last weekend, this story was published in the St. Louis Post-Dispatch about the effect of Missouri's conceal and carry law.  Basically, there is no effect.  Apparently gun-related accidents are not up and crime is not down.  This law was essentially upheld by the Missouri Supreme Court in Brooks v. State, 128 S.W.3d 844 (Mo. 2004) (apologizing for the non-user-friendly opinion format).  I wrote a paper about Brooks in my state constitutional law seminar, and included this incredibly horrible graphic:

I'd try to explain to you what I was talking about, but you wouldn't understand.  Seriously, I'm not being condescending---it's just that your mind would literally explode as you tried to comprehend my totally kick-ass and not illogical reasoning.   That, and my theory doesn't really have "a point" or any "validity." 

The fact is, I already knew the truth about concealed weapons before the Post-Dispatch ran their sissy article.  That's because in high school, I saw how effective a concealed gun could be against even the most dangerous criminal, which in this case was three high school kids bashing mailboxes. 

See, a friend of mine was just minding his business at home, when a truck slowed down in front of his house, and then a baseball bat appeared out of the window and smashed his mail box.  As the truck sped away, my friend did the only thing he could do in that situation---he grabbed his shot gun and jumped in his own truck to pursue the bastards.  As he tailed them down a gravel road, a Camero fishhooked out of a driveway and came up behind him.  It was my friend's neighbor, who was angered that his own mailbox had been destroyed.  They chased the offenders down several country roads until they cornered the kids in a subdivision.  My friend got out of his truck, holding his shotgun, while the neighbor and his buddy got out of the Camero with a couple of handguns.  They then called the sheriff.  Just then, the local chiropractor came by and asked what was going on.  Having been apprised the of the situation, he reached under his dashboard and retrieved the handgun strapped under it, telling them he was "going in."  A couple of minutes later the sheriff arrived, calmed everyone down, and apprehended the felons (is mailbox bashing a felony?  I doubt it, but for the purposes of this story, I don't care). 

So, the point here is not that guns help deter crime.  They don't.  Crazy people deter crimes.  I have no doubt that regardless of whether guns are legal, my friend, his neighbor, and the local chiropractor still would have found a way to threaten the lives of a couple of 16-year-olds.  Maybe with pointy sticks, I don't know.  Thug life 4 ever.

UPDATE:  Somehow, this shirt and this shirt should also be involved.  If you are interested in purchasing these for me, please send me an email.

The Big Payoff

Last Friday, all those years and dollars wasted on law school finally paid off: I fixed my own speeding ticket. And it only took me a lot of money and two hours waiting in line.

So, I say this to all those who hope one day to become lawyers: You too can succeed, but you have to dream big!

Practical Advice

Currently I'm trying to recover from yesterday's superbowl activities (too much Bourbon and coke, my friends), but I thought I'd say a few things before the workday started.

First, Beyonce, about this Pink Panther video:  WTF?

Second, if you ever get the opportunity to argue before an appellate court, do not go about it this way (from United States v. Johnson, No. 04-2732 (7th Cir. March 2, 2005)). 

Although I heard this recording several months ago, H/T to Prof. Kerr over at Volokh Conspiracy, who provides background, context and a good discussion.  Basically everything I failed to deliver.