(The Return of) Ignatz, by Sam Heldman

Wednesday, January 12, 2005

Booker/Fanfan 1
Funny times at the Supreme Court this morning. First thing, Justice Stevens (who's in charge, in the Chief Justice's absence) says, "Justice Scalia will now announce the decisions in two cases." All the law nerds hold their breath and get excited, because everybody knows that Scalia's a driving force in the line of cases that will (this term) almost certainly lead to the striking down of the Sentencing Guidelines, the big big criminal law issue that I mentioned the other day. But then Justice Scalia starts droning on about two immigration cases, and everybody slumps in their chairs! Damn! Now we're going to have to wait another week at least for the Sentencing cases?!

After about 15 minutes of immigration law (bottom line: they can deport you to a country with no functioning government, but can't hold you forever if there's no country to send you to), then Justice Stevens with a little twinkle in his eye (he's always got a little twinkle) says, "I've got two opinions too," and proceeds into Booker and Fanfan, the Sentencing Guidelines cases. What a tease.

Bottom line on Booker and Fanfan: Guidelines are now merely advisory in all cases, and no longer actually binding on the sentencing court. Appellate review still exists, to assess the "reasonableness" of the sentence imposed. Question in my mind, which may be answered when I read the opinions: Does this change everything, or nothing? Does it really allow sentencing judges to issue the sentences they think are just, all things considered? Or is it really just a way for appellate courts to strike down every sentence that departs materially from the suggested Guidelines range, by saying, "now we're not saying that the Guidelines are binding, of course, but this sentence is unreasonable."? Time will tell, and maybe the opinions will too.

[UPDATE: I've got lots more thoughts on what Booker and Fanfan really mean. Unfortunately for Ignatz, my duties to my clients come before my duties to my blog, and I think it's probably best that I keep my mouth shut here until I've thought more about how things are going to play out. Sorry, Ignatz.]

posted by sam 1:00 PM 2 comments


So what happened in Dura?!

By Blogger bigmouth, at 4:31 PM  

I'll take even money on a cert-dismissed-as-improvidently-granted. Everybody ended up believing that there was less to the dispute than met the eye, I think. Or else maybe they'll issue an opinion saying something between the Ninth Circuit's seeming (?) "inflation enough is ok" rule, and other Circuits seeming (?) "don't have a case unless there's a corrective disclosure" rule. Mostly, I ended up understanding that I am not an expert on securities law. It would have seemed to me obvious that, if you buy a stock at an inflated price on a Tuesday (price inflated because the President of the Company falsely claimed that they'd invented some great new thing), and then on Wednesday the stock went to $0.01 because -- in an entirely unconnected way -- the Vice President stole all the money and blew up the building, you could sue for the amount by which your purchase price had been inflated. But then it seemed like even the plaintiffs' lawyer conceded that that hunch was wrong? Who knows. Maybe I should actually read some cases rather than making it up.

By Blogger sam, at 4:39 PM  

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