Check Mike Check Sound Circulate Attendance

1. Check Mike Check Sound Circulate Attendance Time

2. Today’s Lecture: • Positivism • Neal v. United States • Positivism and Ideology • “Procedural Due Process”

3. Lecture Organization: • Class Announcements • Review • United States v. Neal • Normative Implications of Judging as Reading Time

4. Class Announcements Exam -- March 6th -- Deadline for questions is this Friday, in my office (or sooner) -- no emails are accepted. -- Expect selected questions to appear 48 hours before the exam

5. Class Announcements Next Cases • -- AFTER Neal … • Planned Parenthood v. Casey (Scalia dissent only) • Griswold v. Connecticut • 2 briefs accepted

6. Class Announcements Online lectures -- slightly behind. Should be caught up on Friday (or Saturday at the worst).

7. Time Class Announcements Course Progress -- We are not going to make it -- Don’t worry. We’ll have our multiple choice test as scheduled on the 6th -- the take home essay might not get here until after spring break (we’ll see) Questions?

8. Review Positivism ‘s basic idea -- all forms of natural law were flawed -- law is only the “cold, naked words” -- law needn’t be moral, just or even truthful -- it is a command from government, that’s it

9. Review Implication for judging -- judging is nothing but reading (doing some else’s bidding) -- judges are not sages, elders, “Hercules,” the learned or even the wise; they are more like bureaucrats or librarians. Find the right book and look at it – that is all that judging entails.

10. Review Implication for society Social morality • -- in positivistic culture, social morality becomes a sort of rule following Proliferation of legality • -- positivistic culture tends to have a lot of positive law • -- endless volumes of statutes, regulations, and precedents

11. On the Proliferation of Positive law: Executive Branch Legislature Courts Administrative Agencies executive orders precedent Four entities that birth some form of legality (positive law) statutes rules New Terminology: “Statutification” “hyperlexis” My favorite: LEGALISM

12. Review How it came about historically • -- we mentioned that positivism as a regime ideology came about naturally as American state building occurred

13. Early American History Modern American History Industrial, post-industrial Predominately agrarian society Vigorous administrative state No real administrative state Legislatures and bureaucracies write the rules Courts play a larger role in rule creation Regime that rationalizes the Court’s ability to INVENT solutions Regime that rationalizes the Court’s role as an ADMINISTRATOR of rules (doing some else’s bidding) Classical Orthodoxy Hence, Positivism

14. Time Review Riggs v. Palmer • -- two judging views in the case Positivistic View • -- people can murder their kin as a method of inheritance so long as the will statute doesn’t forbid it • (the judge is only to read) “Natural Law” View • -- the legislative rule was incomplete; the judge therefore has to intervene by consulting some other sort of authority not explicitly sanctioned by the positive law.

15. Neal v. United States Facts: • -- Neal is caught selling LSD Question: What are the facts of this case?

16. Neal v. United States issue: Background • -- The Federal Sentencing Guidelines (explain) • -- punishment is formulaic (like doing your taxes) • -- calculate the points, look at the grid (no discretion)

17. Neal v. United States issue: w/in a 1000 feet of a school +2 Underage victim +2 Feeble victim +2 Pregnant victim +2 Using a beeper +2 Victim is an immediate family member +2 Victim is a police officer +2 Physically restraining a victim +2 Leader of the pack +2 - 4 Background • -- The Federal Sentencing Guidelines (explain) • -- punishment is formulaic (like doing your taxes) • -- calculate the points, look at the grid (no discretion)

18. Neal v. United States issue: The Grid • -- The grid sentences you; not the judge (take a look)

21. Neal v. United States issue: the weight of the drugs • -- one of the factors that determines your base level is the weight of the drugs (“Fungible” – compare to theft) Question: What is the central issue or problem in this case?

22. Neal v. United States issue: the weight of the drugs • -- LSD doesn’t have any weight. • -- so, the guidelines says to use the drug’s container as the weight • in this case Neal had 4.58 grams of LSD • once you add the container, it makes it 109.51 grams • having 109.51 grams of LSD = 10 years in jail • having 4.58 grams = 70-87 months in prison (6 yrs in jail) Question: How much jail time should Neal receive, and why?

23. Question: If all that judges do is find and read legal sentences – if all they are is a sort of glorified librarian -- why do they have their own branch of government? Why not just have the criminal sentence mailed to you by the Department of Corrections or something. (Like the IRS does it with taxes)? Neal v. United States Question: Should judges follow law SOLEY for law’s sake? Question: Should the judge be more than a reader – sort of caretaker for the rule? And if so, does this “cheat” law as an ideal or fortify it? Question: Is (or should there be) some guarantee that legality make even minimal sense? The original ruling • -- Neal is sentenced to 10 years • -- His sentence does not violate the Constitution Irrationality in Sentencing? 1. the weight of the carrying medium varies considerably. 2. creating irrational disparity many times, possessing $1,000.00 worth of LSD gets punishment similar to having $120,000 worth of heroine!

24. Neal v. United States The rest of the story the Guidelines were amended! • -- for about 8 years, what I just described to you was the law. In 1995, they changed it: • the carrier weight is billed at a flat 0.4 milligrams per dose • dose multiplied by 0.4 to get the weight; typical dose contains .05 milligrams

25. Neal v. United States The rest of the story But the amended guidelines conflict with a statute! • -- There is a statute on the books that says the following • “the weight of a controlled substance refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance” blotter paper Increases the weight of the drug • -- The statute says you have to count blotter paper in the weight

26. On the Proliferation of Positive law: Executive Branch Legislature Courts Question: What does the Court do with this case? What does it rule?? Administrative Agencies executive orders precedent statutes rules The weight should include blotter paper. No it shouldn’t; that’s stupid. Stupid is as stupid does.

27. Entrusted within its sphere to make policy judgments, the Commission may abandon its old methods in favor of what it has deemed a more desirable "approach" to calculating LSD quantities. We, however, do not have the same latitude to forsake prior interpretations of a statute. Translation: the commission can think and reason, we are not allowed. We are just the readers of the words of the lawgiver.

28. True, there may be little in logic to defend the statute's treatment of LSD; it results in significant disparity of punishment meted out to LSD offenders relative to other narcotics traffickers. (Although the number of doses petitioner sold seems high, the quantities of other narcotics a defendant would have to sell to receive a comparable sentence under the statute yield far more doses.) Even so, Congress, not this Court, has the responsibility for revising its statutes. Were we to alter our statutory interpretations from case to case, Congress would have less reason to exercise its responsibility to correct statutes that are thought to be unwise or unfair. We hold that 841(b)(1) directs a sentencing court to take into account the actual weight of the blotter paper with its absorbed LSD, even though the Sentencing Guidelines require a different method of calculating the weight of an LSD mixture or substance. The judgment of the Court of Appeals is affirmed. • Translation: • We admit the result is stupid. • If we correct stupidity, the Congress will both stay dumb and become lazy. • We’re concerned about that, so Neal must stay in jail

29. Neal v. United States Other facts about the Guidelines Crack v. Powder Cocaine • -- 92.6 % of those arrested for crack cocaine are African American. • -- 70.3 % of those arrested for powdered cocaine are white. • -- Crack is treated much more severely.

30. Time Neal v. United States Other facts about the Guidelines Crack v. Powder Cocaine • -- The average crack cocaine sentence is 120 months, and is greater than:* • the average sentence for robbery (103 months) • the average sentence for arson (76 months); • the average sentence for sexual abuse (64 months) • the average sentence for manslaughter (31-months) • Source: United States Sentencing Commission, 1999 Sourcebook of Federal Sentencing Statistics.

31. Normative Implications of Judging as Reading Important questions -- we have seen positivism’s advertisement for what judging consists of in the modern era -- judging as reading …

32. The old advertisement for judging • Gods will? • Sacred Traditions, Customs? • Reason/Nature • Logic? • Science?

33. The new advertisement for judging • Gods will? • Sacred Traditions, Customs? • Reason/Nature • Logic? • Science? Law = words Judging = reading

34. Remember this? “law”

35. The New Humpty Question: Is there a problem with a judge that can only read and follow directions? Does this result in a tradeoff or cost of some kind? Question: Does Humpty use ideology when he judges?? Question: Did any of the justices in Neal use ideology? Question: Which judge, Earl or Gray, used ideology more or less in Riggs v. Palmer? I can read and follow directions

36. Several views about this Viewpoint #1: The opportunity cost or “tradeoff” -- Positivism’s model for judging, if true, would eliminate bias or ideology or discretion. -- In doing so, however, there is a tradeoff: Things gained Things lost: No Bias No Innovation Appearance of objectivity No Intelligence No purpose No discretion

37. Several views about this Viewpoint #1: The opportunity cost or “tradeoff” -- Positivism’s model for judging, if true, would eliminate bias or ideology or discretion. -- In doing so, however, there is a tradeoff: Good Thought The Will Bad Thought

38. Several views about this Viewpoint #2: Positivism Lies • -- Positivism doesn’t eliminate ideology, it just hides it • -- The reason is that the judges who want to let legality rule do so because the interest clientele that they favor tend to dominate those institutions: • (e.g., realists liked legislatures because they liked progressivism and FDR-type politics) • Conservatives like rules because it locks out certain constituencies – gays, African Americans, women (to some extent), etc. • -- In this sense, rules serve the same function ideologically that tradition did during the classical/agrarian period. • -- it is much easier to believe in “neutral judging” when rules already support your viewpoint Question: What do you make of this argument?

39. Several views about this Viewpoint #3: Positivism commits a fallacy -- In making the case for judging as reading, positivism commits a fallacy -- It is called “The fallacy of repair:” -- If the rule is fundamental wrong, illogical or nonsensical, it makes no sense to argue that only the legislature can fix it. Why? Because the same labor it takes to fix the rule can be undertaken to fix a bad judicial decision if the Court happens to get it wrong. It’s the same labor either way!

40. Several views about this Viewpoint #3: Positivism commits a fallacy Legislature either has no labor to perform whatsoever or has to fix a rule (the Court’s rule) Option 1 Fix a bad rule Option 2 Legislature has to fix a bad rule Don’t fix a bad rule (Notice that this only works so long as we all agree the rule is problematic. E.g., Riggs and Neal?) Time