Where Have the Decisions Gone? That's what John Elwood is wondering over at Volokh Conspiracy. According to Elwood, "usually by this point in November, we've had at least an opinion or two released in an argued case," and so far, the Court has only delivered three per curiam summary reversals. Elwood then examines the statistics for terms dating all the way back to 1968, and discovers "his term is shaping up to be one of the four latest starts of the past 41 years." Glancing over statistics for those past 41 years, one can see that with the exception of October terms 1984 and 2007, the Court has always issued an opinion by the end of November. "So... where are the (argued) Supreme Court opinions?" Dave N. and spo comment on Elwood's post to assure that McDaniel v. Brown should be handed down soon. CJLF's Brown brief is available here.
Another Argument Against Mass Incarceration: On ACSblog, Paul Butler, the Associate Dean for Faculty Development and a law professor for George Washington University Law School, blogs on his new book, Let's Get Free: A Hip-Hop Theory of Justice. In his book, Butler, a former prosecutor, argues that mass incarceration is bad for the average citizen. He focuses on the "tipping point"of incarceration and argues that when too many people are locked up, the crime rate goes up. He advocates the usual solutions: diversion of imprisonment funds to education, health care and the environment, and proposes a few unusual remedies. He also calls for jury nullification in drug cases. The idea of softer sentencing and expanded social programs to reduce crime is not new. It used to be called "the Great Society." We all know how well that worked.
The Original Understanding of the Sixth Amendment Right "to have the Assistance of Counsel": At Volokh Conspiracy, Orin Kerr posted some thoughts on the debate on originalism versus stare decisis in constitutional interpretation. Kerr briefly looks at how the debate is affecting arguments in McDonald v. City of Chicago, and then turns to the Sixth Amendment's right to assistance of counsel. According to Kerr, "[t]he right to Assistance of Counsel was a response to the traditional English common law practice of forbidding defense lawyers in criminal trials," and the Sixth Amendment acknowledged "a right to have a lawyer if you had one, not a constitutional right to have a lawyer provided to you free of charge." That being said, Kerr proposes two questions for true originalists, "if you agree that the original understanding was just a right to have a lawyer present you if you hired one, do you believe that courts should overturn the modern precedents and return to that original understanding? And second, ... do you agree that this is the original public understanding?"
Habeas Corpus and Executive Detentions: CrimProf Blog provides a link to Marc D. Falkoff's SSRN article "Back to Basics: Habeas Corpus Procedures and Long-Term Executive Detention." In his article, Falkoff, an Assistant Professor at Northern Illinois University's College of Law, focuses on the use of habeas corpus to challenge executive detentions, and wonders what sort of procedures a federal court would use to review a detainee's claims. He writes that "[i]f the Guantanamo petitioners, for example, are properly before the courts pursuant to section 2241 of the Title 28 of the United States Code, they would presumably be entitled to at least the 'skeletal' procedures provided by Congress for other habeas petitioners." But they don't come under section 2241. Subdivision (e) expressly excludes them from the statutory provision. The Supreme Court decided in Boumediene (wrongly, in CJLF's opinion) that the Constitution requires habeas anyway, but that does not mean they necessarily have to have the procedures that Congress added to habeas long after the Suspension Clause was adopted.
Another Argument Against Mass Incarceration: On ACSblog, Paul Butler, the Associate Dean for Faculty Development and a law professor for George Washington University Law School, blogs on his new book, Let's Get Free: A Hip-Hop Theory of Justice. In his book, Butler, a former prosecutor, argues that mass incarceration is bad for the average citizen. He focuses on the "tipping point"of incarceration and argues that when too many people are locked up, the crime rate goes up. He advocates the usual solutions: diversion of imprisonment funds to education, health care and the environment, and proposes a few unusual remedies. He also calls for jury nullification in drug cases. The idea of softer sentencing and expanded social programs to reduce crime is not new. It used to be called "the Great Society." We all know how well that worked.
The Original Understanding of the Sixth Amendment Right "to have the Assistance of Counsel": At Volokh Conspiracy, Orin Kerr posted some thoughts on the debate on originalism versus stare decisis in constitutional interpretation. Kerr briefly looks at how the debate is affecting arguments in McDonald v. City of Chicago, and then turns to the Sixth Amendment's right to assistance of counsel. According to Kerr, "[t]he right to Assistance of Counsel was a response to the traditional English common law practice of forbidding defense lawyers in criminal trials," and the Sixth Amendment acknowledged "a right to have a lawyer if you had one, not a constitutional right to have a lawyer provided to you free of charge." That being said, Kerr proposes two questions for true originalists, "if you agree that the original understanding was just a right to have a lawyer present you if you hired one, do you believe that courts should overturn the modern precedents and return to that original understanding? And second, ... do you agree that this is the original public understanding?"
Habeas Corpus and Executive Detentions: CrimProf Blog provides a link to Marc D. Falkoff's SSRN article "Back to Basics: Habeas Corpus Procedures and Long-Term Executive Detention." In his article, Falkoff, an Assistant Professor at Northern Illinois University's College of Law, focuses on the use of habeas corpus to challenge executive detentions, and wonders what sort of procedures a federal court would use to review a detainee's claims. He writes that "[i]f the Guantanamo petitioners, for example, are properly before the courts pursuant to section 2241 of the Title 28 of the United States Code, they would presumably be entitled to at least the 'skeletal' procedures provided by Congress for other habeas petitioners." But they don't come under section 2241. Subdivision (e) expressly excludes them from the statutory provision. The Supreme Court decided in Boumediene (wrongly, in CJLF's opinion) that the Constitution requires habeas anyway, but that does not mean they necessarily have to have the procedures that Congress added to habeas long after the Suspension Clause was adopted.
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