Sentencing Law Smackdown: Berman v. Kerr?
On Wednesday, Professor Orin Kerr sarcastically mocked -- and also analytically attacked -- the Ninth Circuit's recent decision in Carrington v. United States (PDF). In an opinion by liberal stalwart Harry Pregerson, the court authorized resentencing in two cases from the Mesozoic Era the 1990's. We wrote about the decision here.
We expressed interest in hearing what sentencing guru Doug Berman would have to say about the case. And now Professor Berman has kindly obliged, in a quasi-snarky post that asks, What's wrong with equitable Booker retroactivity in the Ninth Circuit?
Consider the gauntlet thrown down. Professors Berman and Kerr are two of the biggest crim-law bloggers around. And they kinda look alike, too. (See photos -- Professor Berman at right, Professor Kerr at far right.)
Will Professor Kerr take up Professor Berman's challenge? Might we have a blogospheric battle of the titans on our hands?
(To be sure, you have to be a bit of a sentencing law geek to appreciate this. If you are, then you might also enjoy this post by Professor Berman, Proof the guidelines are reasonable -- a riff on our recent post about Justice Breyer writing the U.S. Sentencing Guidelines on Professor Charles Fried's dining room table.)
Carrington v. United States [Volokh Conspiracy]
What's wrong with equitable Booker retroactivity in the Ninth Circuit? [Sentencing Law and Policy]
Carrington v. United States (PDF) [Ninth Circuit via How Appealing]
Earlier: Judge Harry Pregerson Is Cruisin' for a Bruisin'
(6) Comments
Wow.... there's just nothing to talk about after bonus week, is there?
There's the defense lawyer who slept through trial. Under the circumstances, it almost looked like he did it on purpose as a hedge for his client. http://www.law.com/jsp/article.jsp?id=1166090720926
On this thing, bloggers debate all of the time. Kerr and Berman are more reasonable, polite and intellectually honest than most, so it'll probably read more like a conversation. Perhaps an interesting one, but I highly doubt there will be anything comparable to rhetorical violence.
Why don't you dust off the Hart-Wechsler dialogues and point out all of the professorial slaps in that?
OTOH, if Scalia and Breyer debate anytime soon, you can always persuade the crowd to act like middle school kids watching a fight develop.
SGB: I think purpose and consequences are important tools of statutory and constitutional interpretation.
AS: They invite subjectivity.
Audience: OOOOOoooohhhh!! FIGHT! FIGHT!
AS: I was Mister Deregulation.
SGB: The deregulation journal was called Regulation?
Audience: Fight!
Audience: Your mom was Mister Deregulation!
Berman v. Kerr? Nah.
Hardly a blawgebrity death match. But I'd put my money on "The O-Kerr," if I had to wager.
Kerr looks much tougher than Berman - maybe it's the badass glasses. Also, Kerr is smirking in his photo, while Berman has a "cute little boy" grin.
These two are some of the best, really elite, legal bloggers out there.
To 10:09 AM: I don't question Kerr and Berman's stature in the blogosphere or their status as "blawgebrities."
I just agree with 8:49 AM: they're too civilized to engage in a "death match." A learned discussion, yes; a smackdown, probably not.
Other than being bald, Kerr looks nothing like Berman. Also, this photo doesn't do Kerr justice; he is way hotter in person.