The real world cometh to campus

The School’s Center for Ethics & Public Service is awarding Kathleen Williams (’82) its Lawyers in Leadership Award™, which recognizes “dedication to public citizenship and leadership” by inviting honorees to campus “to share their life stories for the benefit of the law students who are not yet out in the ‘real world.’”

I’m not sure what the Center is doing. I don’t mean with regard to the honoree, of course. Kathy is clearly deserving of the award, and there is no one better qualified to tell those living in a bubble just what the real world is like, believe me. (She has done as much each time she has visited one of my classes.) My problem is with targeting an unsuspecting audience.

By omitting a comma between the relative pronoun and its antecedent, the Center concedes (as it must) that some of our students are “out in the ‘real world.’” (If there were a comma—i.e., for the benefit of the law students, who are not yet out in the ‘real world’—it would be a non-restrictive phrase, and that would mean that the Center considers no law student to be “out in the ‘real world’”—a clearly untenable proposition as many of my students are far more firmly planted in reality than we faculty are.) As it is (no comma), it means that the event is only for those law students who are not “out in the ‘real world,’” allowing that some law students may be “out in the ‘real world,’” but making it plain that the event is not for them.

This seems kind of mean to me. Shouldn’t admission instead be limited to those who have already engaged the real world and leave those lucky few still in a bubble in peace to enjoy their last days of ingenuousness?

You might be in the wrong line of work

The Sixth Circuit seemed nothing short of stunned last month by a federal defender’s decision to file a letter he wrote to his client in lieu of a sentencing memorandum. The letter was so thorough that the prosecution relied exclusively on it at sentencing, and the court of appeals quoted it at length:

My duty now is to try to write a sentencing memorandum on your behalf. I knew this day was coming and I knew it would be a difficult task, but for the first time in my two and a half years of service to the Defenders Office, I must admit that I am completely stymied (i.e., without a place to go). There is not one thing about your situation that lends itself to a positive thought, save that you have a good work history.

You are clearly an alcoholic with either no ability or desire to quit drinking, for, surely if you wanted to or could, you would at least do so as a means of staying in this country. … At some point either you will stop consuming alcohol on your own, or you will develop cirrhosis of the liver and you will die a slow, painful, horrible death. And then you will be done drinking for sure.

The problem is that for the rest of society, in the meantime, before you stop drinking, one way or another, you will continue to drink alcohol to excess and then drive motor vehicles. You have five convictions for drunk driving. By the grace of God, you have not been involved in a serious accident. Unfortunately, it is only by that divine intervention that that is the case. And every time you take the wheel either impaired or completely inebriated, you defy the odds. It is only a matter of time before you kill or seriously injure yourself (perhaps that is your goal). The concern for the court, I, and the rest of society is that you are more likely to kill, maim, or injure some innocent driver or passenger in another vehicle or a bystander. There would be no recovery for that victim or family. There would be no mercy for you.

And then there is the overriding problem to all of this. You are not supposed to be in this country in any event. I am not talking about just coming here without documentation to earn a living that you could not earn in Mexico. I am talking about the ordered deportation of you on at least two occasions.

…

I am truly at a loss to figure out how to explain to Chief Judge Bell that somehow or in some manner, he should not treat you most severely. Perhaps before the 11th of April you will have formulated some statement or some explanation (that has completely escaped me) in the face of these facts. Your action returning to the U.S. in 2007 was wrong. Your drinking and driving upon that return (and to return to this district as well) is just plain stupid.

I am sorry to be so blunt, but I have to be honest with you, your case has left me without an expressible empathy. For this I am sorry because it leaves me almost unable to advocate on your behalf. (I say “almost” because as you are one of God’s creatures, any person can advocate for mercy or lenience premised upon your basic humanity. But that job is a tough one, made ever more so by your conduct.)

Having a lawyer like that probably saves a lot of time. What makes proceedings take so long, after all, is that most lawyers bend over backwards to see things from their clients’ point of view. Just venting your own personal opinions in open court streamlines all that dickering and back-and-forth that can so gum up the justice system. The Sixth Circuit affirmed the sentence, including an upward departure. Oh, it also invited a habeas petition.

“This looks extraordinarily bad”

Ghostbusters debuted 25 years ago this week. In commemoration, the entire movie is free on YouTube. But it has commercials. If I wanted to see those, I would watch television, you know? What made me think of that was the Eleventh’s portentous granting of en banc review in a case that can only make bad law—extraordinarily bad, as Egon said.

What rallies the Eleventh Circuit to gather the entire bench? The idea that a 210-month sentence might be too low. To be sure, as Judge Edmondson noted, “The crime is an ugly one; the sentencing judge described the conduct as ‘horrific.’” Judge Hill called it “utterly gruesome.” (The defendant committed sex acts with children and traded in child pornography.) The district judge from the Middle District of Florida considered the guidelines’ recommended sentence of 360 months and instead imposed a mere 17.5 years. Having lost on appeal, the government will now get a chance to air this travesty of justice in an en banc review.

The government is (again) attempting to make the guidelines presumptively correct by contending that district judges must justify imposing a non-guidelines sentence. But the Supreme Court has repeatedly said that the guidelines are not law and that they need not be accorded any presumption. Indeed, Rita v. United States supposedly settled all of this already. As Justice Stevens said in his concurrence in that case, “Given the clarity of our holding, I trust that those judges who had treated the Guidelines as virtually mandatory during the post-Booker interregnum will now recognize that the Guidelines are truly advisory.”

The government is not taking that lying down. From Judge Edmondson’s panel opinion:

The government does not urge that the district court committed a procedural error in this case. The government concedes that the guidelines sentence was correctly calculated and that the sentence imposed was above the minimum sentence allowed by the statute. In effect, the government contends that Defendant’s sentence was substantively unreasonable: too lenient.

Defendant’s sentence of 210 months’ imprisonment (and a life term of supervised release) is 30 months above the statutory minimum for imprisonment: but the government argues that the departure from the guidelines sentence was not justified. The government contends that the district court relied on the view that pedophilia is an illness and contends that the district court failed to meet its obligation under section 3553(a) to consider the seriousness of the offense, the need to promote respect for the law, the need to provide just punishment for the offense, the need to afford adequate deterrence, and the need to protect the public from further crimes by the defendant.

It bodes ill for the Republic that the Eleventh is even seriously entertaining this argument. I hate to speculate, but this sort of nonsense may be just the thing to give Justice Scalia’s Rita concurrence the traction it previously lacked and restrict “reasonableness” review to procedural issues only. Or maybe something worse.

“It’s a new day”

The automatic doors to the library are automatic again. I think they have been for most of the summer, but I just noticed it a few days ago. They were disabled at some point last year to cut costs, right around the time all the coffee makers vanished. But, as one of my colleagues remarked earlier, “It’s a new day.”

The final official count for our Class of 2011 is 532. I know, I know. That’s a lot. It’s almost enough to make me rethink my uncompromising abhorrence of multiple-choice exams. Certainly this is more than The Dean expected to have to tackle. The Dean herself has taken on a section of Elements. I’ve been here six years now, and I still have only the vaguest idea of what that is.

So, I think everything will be fine. It’s like when Captain Jellico took over the Enterprise while Picard was being tortured by Cardassians. He made some obviously necessary changes—like telling Riker to shut the hell up and quit whining all the time. On the other hand, he made Troi start wearing an actual Starfleet uniform instead of her plunging necklines—which was clearly going too far—and the crew were all kind of confused and frustrated. Then Picard came back and all the uncertainty went away and everyone could breathe a little easier—but Troi kept wearing the uniforms anyway.

Orientation is underway, so they’re all wandering around, led by 3Ls in bright orange shirts. (One 3L snagged me an XL.) The SBA gave them all beach towels. Make of that what you will. (Another 3L snagged one of those for me. It came in handy this morning when I graded the Greece exams on the Bay.) I have to go speak to a whole bunch of them now over in Learning Center, which is clear across campus. The last time I was in that building I was taking the LSAT. Oh, that’s the other news. The Law School expanded—by one classroom. Central Command ceded LC170 to us for the foreseeable.

Orbiting space

I was explaining to one of my colleagues earlier about teaching on the bus through Tuscany and Greece. With one exception, no one who hears about this thinks it’s an obviously fantastic idea. The one exception is the guy who taught in the first Italy-Greece trip of the summer; we offer two sections of this. Anyway, I was explaining how the students, despite their initial skepticism and recalcitrance, asked me to continue teaching on the bus long after we had gotten far enough ahead where it was no longer necessary. You see, the bus rides were painfully long and dull—which is why I decided to do this in the first place. But my colleague’s thoughts had drifted elsewhere.

“Maybe this would be a solution for the additional section of 1Ls.”

“You want to put them on the shuttle and have them orbit campus for torts and contracts?”

“Well, we could get a bigger, nicer bus.”

As it turns out, some of us (not me specifically) will have to teach law on the main campus. And classroom space, of course, is just one of the things the new Powers That Be have to contend with. Teaching schedules are being shuffled about and such. But don’t worry. It’s all going to be fine. I can already tell.

Checking out

Except for the few who have moved on to the law journal competition, the kids are all holed up in our Athens hotel banging out their take-home exams. I’m pretty much packed up—prematurely because I don’t jet out ’til Tuesday. But everyone’s already mentally back home. At breakfast, conversation was about law firms eliminating summer associate programs or cutting salaries and about what classes to drop and add when classes resume in two weeks. From what I gather, it seems like the South Florida firms have scaled back their on-campus interviewing, just as firms nationwide have frozen hiring or deferred start dates to 2011. Students who in past years would have had their dance card full now don’t.