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The Myth of the All-Powerful Federal Prosecutor at Sentencing
Get PDFRelying on a dataset I assembled of 130 doctors prosecuted for illegal opioid distribution between 2015 and 2019, this Article shows that judges rejected federal prosecutors’ sentencing recommendations over two-thirds of the time. Put differently, prosecutors lost much more often than they prevailed at sentencing. And judges often rejected the prosecutors’ sentencing positions by dramatic margins. In 23% of cases, judges imposed a sentence that was half or even less than half of what prosecutors recommended. In 45% of cases, judges imposed a sentence that was at least one-third lower than what prosecutors requested. In short, prosecutors lost most of the time at sentencing, and they often lost big.
Although this sentencing data involves a unique type of defendant in a particular category of cases, it should nevertheless give us pause about the conventional narrative that prosecutors are all-powerful. Prosecutors, quite simply, may not wield as much power in the courtroom as we have thought.
Part I of this Article describes the cases of doctors who were convicted and sentenced for illegally distributing opioids. Part I explains how I located a large sample of federal cases involving drug-dealing doctors and where I procured the prosecutors’ sentencing recommendations that are usually hidden from public view. Part II reports the findings that prosecutors often lose at sentencing. In particular, Part II demonstrates that whether prosecutors made sentencing recommendations within, below, or above the Federal Sentencing Guidelines, judges consistently rejected those recommendations and imposed shorter prison terms than prosecutors sought. Part II also reports the surprising finding that prosecutors did not seek to penalize defendants who went to trial by recommending sentences at the high-end of the guidelines range. Finally, Part III considers the extent to which we can extrapolate larger conclusions from a unique dataset of quasi-white-collar offenders.
This abstract has been adapted from the author\u27s introduction
Gimme Shelter: Amending FEMA\u27s Enabling Legislation to Permit Citizen Suits for Failures in Disaster Recovery Efforts
Get PDFThis Note argues that democratizing the disaster relief process through enabling citizen suits against FEMA to timely deliver housing relief assistance is one potential solution to the immense problem at hand. This Note provides an overview of FEMA’s obligations to survivors of natural disasters under both federal law and evolving interpretations of binding international law. This Note asserts that FEMA’s repeated failure to deliver necessary disaster relief aid to these survivors constitutes violations of these obligations. This Note will then assert that the issue underlying these failures (i.e., flawed administrative and bureaucratic processes) is analogous to similar failures by environmental agencies. This Note will then propose that a citizen suit provision, similar to those under federal environmental law that have compelled agency action in the past, should be adopted to FEMA’s enabling legislation to remedy failures to meet their obligations. Finally, this Note will examine the application of citizen suits since their introduction to understand how such a provision may operate under FEMA’s enabling legislation, and to identify structural challenges faced by citizen suits that can be learned from to best ensure successful implementation moving forward.
This abstract has been taken from the author\u27s introduction
Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Commission: The Supreme Court Misses Its Shot at Clarifying State Alcohol Regulations and the Commerce Clause
Get PDFThe Supreme Court erred by denying certiorari in Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Commission. The Texas statute that bans all publicly traded corporations from obtaining a license to sell liquor, but carves an exception for some Texas-run public corporations through an express clause, is in direct violation of the dormant Commerce Clause. The Texas Legislature disguised the public corporation ban as a “facially neutral” alcohol regulation, however, the ban is discriminatory towards out-of-state competitors in both its purpose and effect. Moreover, the Fifth Circuit’s decision in Wal-Mart Stores is firmly inconsistent with Supreme Court precedent. Additionally, the Fifth Circuit has misapplied and misinterpreted case precedent to generate an arbitrary per se rule for similarly situated businesses. The interpretation used by the Fifth Circuit has created a circuit split for both state alcohol regulations and the Commerce Clause more generally. The Supreme Court’s ignorance of the errors committed by the Fifth Circuit in Wal-Mart Stores has opened the door to constitutional, legislative, and economic harms.
Part I of this Note will discuss the interconnection between the Commerce Clause and the Twenty-First Amendment. Part II will discuss the case history of Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Commission. Part III will argue that the Supreme Court erred by denying certiorari in Wal-Mart Stores preview the potential harms stemming from this decision.
This abstract has been taken from the author\u27s introduction
Meet Dean Spencer
Get PDFMeet W&M Law School Dean and Trustee Professor A. Benjamin Spencer. Dean Spencer, a nationally renowned civil procedure and federal courts expert, joined the W&M faculty in July 2020. He is William & Mary’s first African-American dean of any school at the university, including the law schoo
Presentation: Building Community Capacity in Environmental Decision-Making Through Community Lawyering
No full textBrigham-Kanner Property Rights Journal, Volume 11
Get PDFThe Role of Empirical Research
September 30-October 1, 2021
Panel 1: The Role of Empirical Research in Defining the Scope of Constitutionally Protected Property Rights: A Tribute to Been
Panel 2: The Relationship Between Eminent Domain and Social and Racial Injustice
Panel 3: The Interdependence of Property and First Amendment Rights
Panel 4: The Distributional Implications of Land Use Regulationhttps://scholarship.law.wm.edu/propertyjournal/1011/thumbnail.jp
Proving Copying
Get PDFProof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access based on the level of similarity, and vice-versa. While analytically sound, the inverse ratio rule has proven to be a persistent source of confusion among some courts, most prominently the Ninth Circuit, causing some to misapprehend the very nature of the inquiry into copying as well as the manner in which circumstantial evidence operates. This Article explains how the inverse ratio rule emanates from crucial insights about the manner in which circumstantial evidence operates, wherein multiple inferences are combined to enhance the probative value of evidence that is inconclusive in isolation. This flexible formula builds on the notion of a combined narrative that is a hallmark of all circumstantial evidence. The Article unpacks the theoretical and normative logic behind the inverse ratio rule to show how it is essential to circumstantial proof of copying, reveals how purported rejections of the doctrine by courts have been driven by a basic misunderstanding of the manner in which circumstantial inferences interact, and concludes by drawing broader insights about the interplay of copyright and evidence law
Thinking Outside the Box: Preimplantation Genetic Diagnosis, In Vitro Fertilization, and Disability Screening in the Wake of Box v. Planned Parenthood
Get PDFA circuit split has recently emerged regarding the constitutionality of state laws banning trait-selective abortions, i.e., abortions based on fetal characteristics like disability. Much of the dialogue surrounding trait selection has revolved around whether such abortions are eugenic in nature and whether they could be regulated differently than other forms of abortion—under either Roe and Casey or the post- Roe regime ushered in by Dobbs. However, the same concerns underlying this debate over eugenic abortions apply with equal force to preimplantation genetic diagnosis (PGD) coupled with in vitro fertilization. Because PGD seems certain to be the next battlefield in the war over reproductive rights, this Article wades into the debate over trait selection and eugenics and analyzes whether prospective parents would have a substantive due process right to use PGD to screen against disabilities or genetic conditions.
In doing so, this Article addresses and answers several interrelated questions: how to define the right to use PGD; whether the right, as defined, is fundamental; and which government regulations could survive strict scrutiny were the right found to be fundamental? And this Article argues that courts should define the right broadly; conclude that it is fundamental based on Supreme Court precedent, our nation’s history and traditions, and international recognition of the right; and strictly scrutinize laws limiting access to PGD while nonetheless upholding certain forms of regulation like expert agencies that gatekeep access to the technology, informed consent requirements, and waiting periods. Finally, this Article explains how this approach will best safeguard parental procreative autonomy, vindicate governmental interests in preventing eugenics and discrimination, and enable courts to avoid difficult line-drawing exercises