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April 8, 2025
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Forward: Learning
Tessa L. Dysart, Assistant Vice Provost of Native American Initiatives, Assistant Director of Legal Writing, Clinical Professor of Law, University of Arizona James E. Rogers College of Law.
Accuracy and the Robot Judge
Michael J. Hasday, Assistant Professor, Benjamin L. Crump College of Law at St. Thomas University.
Judging Class Certification as a Matter of Law
Brian A. Sutherland, Partner, Complex Appellate Litigation Group LLP, San Francisco.
Driving Efficiency and Public Confidence: Integrating Quality Management Practices in the Federal Appellate Court System
Jarrett B. Perlow, Circuit Executive and Clerk of Court for the U.S. Court of Appeals for the Federal Circuit and an ICM Fellow of the National Center for State Courts.
"In Conclusion, . . . " Are We Missing an Opportunity to Persuade?
Colleen Garrity Settineri, Associate Clinical Professor of Law at The Ohio State University Moritz College of Law.
“The standing doctrine articulated by the Supreme Court in Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez bars ‘inconcrete’ statutory-damages claims from federal courts. As state courts also restrict their own standing doctrines, they leave valid federal claims without a forum. This problem of forumless claims leaves litigants without redress, frustrates Congress’s legitimate efforts to regulate, and creates tensions in principles of federalism. We argue that the Supremacy Clause requires state courts to hear these claims, and we propose a test for when they must do so that accounts for other doctrinal developments. State courts cannot use state standing rules to leave valid federal claims forumless.”
* Adam Flaherty is an Associate at Boies Schiller Flexner LLP; J.D. 2024, Yale Law School; M.P.P. 2021, Oxon; B.A./B.S. 2017, University of Mississippi. Isaiah W. Ogren is the Rappaport Fellow at Harvard Law School; J.D. 2024, Yale Law School; M.A. 2021, UCL; B.A. 2020, University of Minnesota.
“Most participants and observers of the criminal system perceive the Federal Sentencing Guidelines as excessively harsh. A foundational question has persisted since the creation of the Guidelines: is a guideline-based regime actually preferable, or should we embrace complete judicial discretion in sentencing? For decades, analysts have resorted to hypothetical cases to explore this issue. But a little-known world exists in which real federal sentences are imposed without any reference to sentencing guidelines: U.S. Sentencing Guideline §2X5.1. This Article is the first to compare actual sentences imposed with and without guidelines for the same offenses and same types of offenders.
The analysis reveals that judges tend to impose harsher sentences in the world without sentencing guidelines. Variability is also more pronounced in sentences without guidelines: after a conviction for child endangerment, some parents received two years in prison and others received fifteen (even after adjusting for severity). Two Black men convicted of a fourth and fifth non-accident DUI received ten years in prison while other offenders received probation (the median sentence is around twelve months’ imprisonment). Recent Supreme Court cases affecting tribal jurisdiction, and the January 6, 2021, ‘Capitol Breach’ cases, have led to an explosion in the number of these cases in many districts.
This Article argues that sentencing within a guideline framework, or within a data-based framework when guidelines are inapplicable, provides more certainty and minimizes unwarranted disparities. The conclusions offer critical insights to states or other systems that do not currently have sentencing guidelines or do not meaningfully collect sentencing data. Finally, this Article offers recommendations to judges, the United States Probation Office, and the Sentencing Commission to help advance a more just and efficient sentencing system.”
* Visiting Assistant Professor at the University of Oklahoma College of Law.
“Sentencing scholarship often begins by exploring the traditional purposes of punishment: deterrence, retribution, incapacitation, and rehabilitation. However, little scholarship exists addressing how these four punishment purposes apply in the post- sentencing or second-look contexts. Further, abstract theories of sentencing can often seem sterile and disconnected from the realities of how violent, disproportionate, and dehumanizing the actual experience of incarceration is for many people, and tend to downplay the impact of incarceration on the families and communities of those who are incarcerated. This Article attempts to reconceptualize the traditional purposes of punishment to meet the current historical moment, and it does so through a decarcerative and abolitionist lens.
Within the past decade, an increasing number of state and federal retroactive relief mechanisms have enabled incarcerated people to petition courts for sentence reductions or early release from prison based on various legal theories. But guidance provided to courts and other decisionmakers about how to exercise their discretionary decarceration authority is lacking. Accordingly, this Article highlights the need to develop a theory of resentencing and asks whether the four purposes of punishment require revision or augmentation to account for the sentence reduction context. This Article uses the federal second-look context as a means to explore these themes.
This Article also aims to start a conversation about how abolitionist frameworks centered around harm prevention or reduction could be incorporated into the punishment purposes. Although adherence to the four punishment purposes has persisted at both initial sentencings and within second-look proceedings despite their clear shortcomings, this Article urges decisionmakers to look at the harm caused by incarceration more expansively. More than that, however, incorporating such a theory into a prospective sentencing may lead judges to rethink their reflexive reliance on the present formulation of the punishment purposes, resulting in less punishment altogether.”
* Assistant Professor and Director of the Defender Aid Clinic, University of Wyoming College of Law.
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