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Overheard in Tax Court

From Niedermeyer v. Commissioner, 62 T.C. 280:

"While we express no opinion on petitioners' apparent belief, we think the words 'immediately after' must be given their ordinary meaning and that consequently December 28 cannot be considered 'immediately after' September 8."

Peanut Butter Jelly Time

The Administrative Procedures Act provides for both formal and informal rulemaking. Agencies, however, tend to prefer informal rulemaking because of the excesses of procedure provided for and hearing rights granted by the formal rulemaking process. My Administrative Law casebook provides an example:

[A]n FDA formal rulemaking to determine the percentage of peanuts a substance must contain in order to be labeled 'peanut butter' took nine years and twenty weeks of hearings producing 8,000 pages of hearing record, to produce a six-page opinion to justify a decision to require at least 90% peanuts.

Needless to say, the prospect of spending nine-and-a-half years on the Peanut Butter Standards Subcommittee has led FDA officials to prefer somewhat less formal rulemaking processes.

Interviews Are Not Fun

One of the interesting things I've learned over the course of interviewing with various employers is that there are certain qualities of a job that you, as a job applicant, are not allowed to talk about in a job interview.

For some subjects, this is pretty obvious. If you're interviewing with, for instance, a firm that has a reputation of working its junior associates to death, to the point where 90% of them leave within 2 years, you should probably not mention this fact to the interviewer. Not even in the form of a question about the job at the end of the interview. On wrapping up the interview, the foremost thought in your mind might well be "I have a question. If I take this job, will it significantly increase my chances of killing myself within the next 18 months? Because if so, I'd like to know now so that I can buy more life insurance and maybe take some home repair classes. You know, to make the fire look like an electrical thing." Nonetheless, it is considered impolite to ask, even if phrased very delicately.

It's also, for whatever reason, considered a little gauche to ask firms about money, or to mention money as the reason you want to work for them. This leads to a lot of polite fiction. When the interviewee says something to the effect of "I want to work at Simmian, Clarke, and Feldstein because I love document review. The thought of paying very, very careful attention to the details of boxes upon boxes containing ten thousand corporate documents in search of the few dozen that are responsive to the opposing counsel's document requests fills me with excitement," what she actually means is "I want to work at Simmian, Clarke, and Feldstein becaues I love money, and am willing to put up with tedious, brain-numbing boredom in order that I might spend the few free hours of my life rolling around in it."

Then there are the things that the interviewer is allowed to talk about, but the interviewee is not. This includes all things related to the work-life balance or culture of the law firm. The nut of the problem is that if you say you want to work at a place because of how fun you've heard it is, you are sending a signal to the interviwer that you want to work there because you think it's a fun place to work. It's this whole sort of reverse-Groucho Marx thing, they don't want anyone joining their club who would want to be a member.

Two examples will perhaps prove illustrative. First, a work-life balance discussion that redounds to the interviewee's benefit:

Interviewee: "I want to work at McFarland, Ross, and Miller because I love document review, and can't wait to do a lot of it!"
Interviewer: "Well, one of the great things about McFarland, Ross, and Miller is that we occasionally allow junior associates out of their gilded Document Review Comfort Cages for fifteen-minute water-breaks, an industry record, plus we put free apples in the break room!"
Interviewee: "Well, that sounds very generous of you, though I can't imagine needing more than five minutes for that water break and I certainly wouldn't want to waste time eating apples on the firm's dime."
Interviewer: "I see you'll fit in well around here!"

And here's an example of an interviewee botching the whole thing:

Interviewee: "I want to work at Deering, Gibson, and Fender because I've heard you give free apples during water breaks, and I love apples."
Interviewer: "Oh, so you're just after us for our apples, are you? Well, just so you know, we fired a summer associate last year for taking too many apples. Sometimes as many as three in a day! So don't think we're all apples and sunshine. We work hard and the apples are just a happy bonus. Unless the apple budget gets cut next year."
Interviewee: "Have I mentioned how much I love documents, and the reviewing of same?"
Interviewer: "Looks like our time is up. We'll get back to you in two to six weeks, depending on how long the post office takes with the rejection letter."

Hopefully this will prove helpful in your future legal interviewing endeavors.

Those Lousy Less Fortunate Get All the Breaks!

I would like to bring some fairness and balance to my practice of pointing and shaking my head at groups of which I'm slightly ashamed to be a member. In that spirit, witness a slew of current-and-future big corporate lawyers whining and moaning about the possibility that they might have to pay an additional 4% of their income above $150,000 ($200,000 for couples filing jointly) as a surtax if a bill introduced by Charlie Rangel (my congressman!) passes. Never mind that the surtax comes in exchange for an elimination of the Alternative Minimum Tax, which means that most of these learned barristers will probably be paying less under the new scheme.

Still, any chance to explain why, as true Ayn Randian Ubermenschen and Uberfrauen, they are being held back from their true, full potential by the socialist redistributive policies of the mediocre minds in government, motivated as they are by misplaced sympathies for the weak, lazy, undeserving underclasses. Truly, if the government were to disappear tomorrow these supermen and superwomen would reach untold heights of accomplishment, no longer constrained in their ability to earn money by arguing over and enforcing . . . the laws of . . . the government that doesn't exist anymore.


It probably isn't prudent for me to say anything substantive on this point, but I will say that there are an awful lot of very harsh retributivists in the comments to this post on Kotaku. Consider that the crime, as reported earlier here occurred roughly as follows:

At 6 PM in the evening, the manager of a Gamestop franchise and one of his employees were closing up the shop. One of the customers lingered as the others made their purchases and left. Once he was alone with the manager and the employee, the customer took out a gun. He threatened the two and demanded the store's cash and merchandise. At some point, the employee's father entered the store to pick up the employee. The robber tied up all three and gagged them with duct tape. The robber spent about an hour and a half in the store, which may include the time he was there waiting for the store to close. He stole some video games and DVDs. He also stole the manager's car, which he drove off in. Sometime afterwards, and we don't yet know the time of death, the manager of the store died of asphyxiation, likely because of the duct tape.

The suspect has just been apprehended. He has several prior convictions for forgery, obstructing a law enforcement officer, possession of cocaine, and selling cocaine. He has been charged with murder, three counts of kidnapping, three counts of false imprisonment, three counts of armed robbery, and possession of a firearm during the commission of a felony.

By my judgment, the median Kotaku commenter is calling for the perpetrator's death. The most extreme commenters want him to be publicly tortured to death to set an example for others.

Without wishing to offer my opinion on the matter, I don't believe any prosecutor outside the state of Texas, and probably most Texan prosecutors as well, would consider this a death penalty case.


A couple of days ago, President Bush commuted Scooter Libby's 2 1/2 year jail sentence. The commutation came within hours of the DC Circuit's denial of Libby's emergency appeal of the District Court Judge's decision that Libby should remain in prison while he awaited the results of his broader appeal. In short, the president's commutation of Libby's sentence was timed to ensure that Libby would not have to spend a minute in jail.

In commuting Libby's sentence, the president remarked that he had "concluded that the prison sentence given to Mr. Libby [was] excessive. Therefore, [he] commut[ed] the portion of Mr. Libby’s sentence that required him to spend thirty months in prison." What's troubling about this is that the reasoning contradicts the entire philosophy upon which we sentence criminals in federal courts.

In the federal system we sentence criminals in accordance with the Federal Sentencing Guidelines. The Federal Sentencing Guidelines were created to remedy the seeming injustice of wildly divergent sentences in criminal cases. It used to be that judges had nearly complete discretion in crafting sentences. They could take whatver factors they liked into account and sentence criminals however the wished, subject only to whatever statutory minima or maxima may exist.

Imagine two criminals from similar backgrounds who committed the same crime in the same judicial district, but who have their trials assigned to two different judges. Criminal A gets Maximum Bob while Criminal B gets Probation Pete. Maximum Bob was appointed by a tough-on-crime president, and he believes in giving every criminal the maximum sentence allowed by law, so Criminal A gets 10 years. Probation Pete was appointed by a liberal reformist president. He believes everyone deserves a second chance, so he gives 6 months probation to every first-time non-violent offender, which is exactly what Criminal B gets. The only distinction between A and B is the luck of the draw as to which judge their case was assigned to.

On a systemic basis, this makes people squeamish. If we had some ideal judge, some judicial Hercules, and we could clone her and appoint her to every district court bench in the nation, thereby ensuring that luck-of-the-judicial-draw was not a factor in sentencing outcomes, the problem wouldn't exist. But we can't, so it does.

The solution was the sentencing guidelines. The sentencing guidelines are crafted by the United States Sentencing Commission, a permanent commission of the Federal Judiciary. The USSC has 7 members, each one appointed by the president and confirmed by the Senate to six-year terms. No more than 3 may be federal judges and no more than 4 may belong to the same party. Sentencing under the guidelines is largely a mathematical process. The judge first calculates the offense level. She starts from a baseline level for whatever the crime is. She then adds or subtracts points from the offense level based on other relevant factors. The just must then compute the criminal history level by looking at any prior convictions. Once she has an offense level and a criminal history level, she consults a grid which tells her the range of sentences that she can give.

As an example, suppose you have a single mother convicted of posession of narcotics with intent to distribute. She's 25 years old and the sole support for her children. She has a high school diploma and has worked since graduation cleaning bathtubs at a shop that sells bathroom fixtures. Her employer reports that she is generally good at her job, has been known to miss days periodically when childcare emergencies arose, but has overall been a fine employee. She attends church weekly and is a junior member of the church's governing committee. It's her first offense and she played only a minor role: knowing that a bag contained drugs, she agreed to hold it until the dealer returned to pick it up. The bag contained 5 kilograms of marijuana. She hid the bag in a supply closet in the church's meeting room, which she could access by dint of her membership on the committee. After her arrest she insisted on going to trial, arguing that holding the drugs for a friend shouldn't be considered trafficking, and she maintains the injustice of her conviction through the sentencing.

Based on this we consult the guidelines: Section 2D1.1(c)(13) tells us that the base offense level for possession of 5 kilograms of marijuana is 14. She played only a minor role in the crime, which under section 3B1.2(b) entitles her to a reduction of 2 levels to offense level 12. Because she has not accepted responsibility for her crime, she does not receive a 2 level reduction under section 3E1.1(a). Because her crime involved an abuse of a position of private trust (using her access to the meeting room to aid in the commission of the crime) two levels are added to her offense under Section 3B1.3, bringing her back up to 14. Sections 5H1.1, 5H1.2, 5H1.5, 5H1.6, 5H1.10, and 5H1.11 tell us that her age, education, employment record, family ties and responsibilities, religion and socio-economic status, and charitable or public service are not ordinarily relevant in determining her sentence. She has no prior arrests, so her criminal history level is 0.

Consulting the sentencing table at Chapter 5, Part A for an offense level of 14 and criminal history of 0, we learn that the guidelines range for her sentence is 15 to 21 months in prison. The judge has discretion to sentence her anywhere within that range.

My point is this: in commuting Libby's sentence, Bush argued that the sentence was inappropriate given that Libby was a first-time non-violent offender and in light of Libby's "years of exceptional public service.” But Libby was not a sinner in the hands of an angry judge; the judge's discretion as to the sentencing was minimal. Libby was sentenced according to a mathematical formula. That formula takes into account the type of offense. It takes into account the fact that he was a first-time offender. The formula does not take into account his years of exceptional public service, but only because the Sentencing Commission has considered those factors and explicitly declared that they are irrelevant to sentencing. Libby was not screwed by a partisan judge. He was sentenced in accordance with a mathematical formula that we use to sentence hundreds of offenders every day in America, and his case presents no special circumstances that aren't already either taken into account or rejected as irrelevant by the guidelines. Other than, of course, the circumstance of being friends with someone who has the power to commute your sentence.

If the president is serious about his stated reasons for commuting Libby's sentence, then his disagreement is not with the conduct of one judge but rather with the entire scheme under which we sentence prisoners in the federal system. This should lead him to push for a reconsideration of the entire guidelines scheme, either by tweaking the relevant factors used to determine a guidelines range or by throwing out the whole mathematical sentencing system. The president's statements are not a cry in the dark by a powerless professor or an overworked defense attorney; they are pronouncements by arguably the most powerful man in the country. If he is serious about his criticism, he has the power to change what he perceives to be an unjust system for the better. If he is serious.

Half a Loaf

There are a number of different strands of interpretation as to what the Due Process clause of the 14th Amendment means when it come to state administration of criminal justice.

But you don't care about that.

The important thing is that one of those strands of interpretation is known as the Rule of Law interpretation, first embodied in Justice Matthew's opinion in Hurtado v. California. The basic idea is that there are certain foundational principals of what constitutes a just criminal proceeding inherent in the Common Law, and the Due Process Clause places a constitutional requirement on the states to adhere to those principals when implementing their criminal justice systems.

This led to the Vagueness Doctrine, which holds that laws that are so vague that they can't possibly guide people's behavior are unconstitutional violations of Due Process.

At last, the point: In 1971, the Supreme Court, in the case of Coates v. Cincinnati, 402 U.S. 611 (1971), struck down a statute that forbade conduct "annoying to persons passing by." They expanded upon this in the case of Papachristou v. Jacksonville, 405 U.S. 156 (1972), which invalidated a statute outlawing "rogues and vagabonds," "habitual loafers," and "persons wandering or strolling around from place to place without lawful purpose or object."

It's a shame that second statute was invalidated, because it seems like it'd be endles fun to play with. First: Is "rogues and vagabonds" a conjunctive or disjunctive phrase? That is, if I am a rogue, but not a vagabond, am I violating the law? Or is it only to be applied against those who are simultaneously roques and vagabonds? And must you be both at once? Perhaps I am a vagabond in the morning and a rogue in the evening.

Also: Habitual Loafers. How much loafing may one do before it becomes a habit? I have to say I'm very guilty of this. On weekends I usually wake up around 11, and it's a rare day that sees me showered and changed out of my sleep clothes before 2 in the afternoon. Perhaps, though, I could get a lighter sentence by going state's witness and turning in other loafers of my acquaintance. For example, there's a pair of old brown leather shoes sitting beside my desk that I rather suspect of being loafers pretty much all of the time. They've turned habitual loafing into an addiction.

Legally Insane

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