Law X.0

Cases Citing Legal Blogs

[Update: This post has now been revised and updated here.]

    

This is a collection of cases that cite legal blogs. The cases are listed below, and each case name is hyperlinked to a blog post containing 1) the excerpt with the blog citation, and 2) additional commentary. The URL's for the blog citations are active, and will bring the reader to the original online source.

    

The blog with the most case citations is Sentencing Law and Policy, with 21 citations in 17 cases. (Note that the majority and dissenting opinions in Ameline are posted separately; thus SLP is cited in cases #1-18.) Three other well-known legal blogs are represented, each being cited once: Legal Theory Blog for its archived lexicon, in Brasher's Cascade Auto Auction (case #19); The Volokh Conspiracy for a song parody, in Suboh v. Borgioli (case #20); and How Appealing for a reference to its "20 Questions" series, in Kennedy v. Lockyer (case #21).

    

The case of Batzel v. Smith (case #22) does not cite any legal blog as an authority, but instead names four examples of "popular and respected legal blogs": How Appealing, SCOTUSBlog, The Volokh Conspiracy, and Lessig Blog. It also names Instapundit as an example of a political blog. The final, unpublished case, Tsukroff v. Hedgeside Property & Inv. Co. (case #23) cites a California blog, The UCL Practitioner, for its collection of trial court orders and appellate briefs.

    

Cases Citing Legal Blogs

1. United States v. Booker, 543 U.S. 220, 278 (2005) (Stevens, J., dissenting)
2. United States v. Penaranda, 375 F.3d 238, 247 (2d Cir. 2004)
3. United States v. Ameline (majority), 376 F.3d 967, 978 (9th Cir. 2004)
4. United States v. Ameline (dissent), 376 F.3d 967, 986 (9th Cir. 2004) (Gould, J., dissenting)
5. United States v. Rodriguez, 406 F.3d 1261, 1284 (11th Cir. 2005) (Tjoflat, J., dissenting)
6. United States v. Levy, 391 F.3d 1327, 1341 (11th Cir. 2004) (Tjoflat, J., dissenting)
7. United States v. Valencia-Aguirre, 409 F. Supp. 2d 1358, 1379 (D. Fla. 2006)
8. United States v. Bailey, 369 F. Supp. 2d 1090, 1092 (D. Neb. 2005)
9. United States v. Khan, 325 F. Supp. 2d 218, 223 (D. N.Y. 2004)
10. United States v. Onunwor, Order NO. 1:04-CR-211 (N.D. Ohio Aug. 19, 2004)
11. United States v. Phelps, 366 F. Supp. 2d 580, 584 (D. Tenn. 2005)
12. United States v. Croxford, 324 F. Supp. 2d 1255, 1261 (D. Utah 2004)
13. United States v. Wilson (Feb. 2, 2005), 355 F. Supp. 2d 1269, 1271, 1286 (D. Utah 2005)
14. United States v. Wilson (Jan. 12, 2005), 350 F. Supp. 2d 910, 922 (D. Utah 2005)
15. United States v. Johnson, 333 F. Supp. 2d 573, 577 (D. W. Va. 2004)
16. United States v. Greer, 375 F. Supp. 2d 790, 795 (D. Wis. 2005)
17. Smylie v. State, 823 N.E.2d 679, 687 (Ind. 2005)
18. State v. Foster, 2006 Ohio 856, P8 (Ohio 2006)
19. Brasher’s Cascade Auto Auction v. Valley Auto Sales & Leasing, 119 Cal. App. 4th 1038, 1057 (Cal. Ct. App. 2004)
20. Suboh v. Borgioli, 298 F. Supp. 2d 192, 194 (D. Mass. 2004)
21. Kennedy v. Lockyer, 379 F.3d 1041, 1065 (9th Cir. 2004)
22. Batzel v. Smith, 351 F.3d 904, 906 (9th Cir. 2003)
23. Tsukroff v. Hedgeside Property & Inv. Co., California Superior Court, Napa County, case no. 26-25117 (order dated 01/19/05) (unpublished)

United States v. Booker

“n4  Memorandum from Christopher A. Wray, Assistant Attorney General, U. S. Department of Justice, Criminal Division, to All Federal Prosecutors, re: Guidance Regarding the Application of Blakely v Washington, to Pending Cases, p 8, available at http://sentencing.typepad.com/sentencing_law_and_policy/
files/chris_wray_doj_memo.pdf (hereinafter Application of Blakely); see also Brief for National Association of Federal Defenders as Amicus Curiae 9-12.”

United States v. Booker, 543 U.S. 220, 278 (2005) (Stevens, J., dissenting)

    

    

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United States v. Penaranda

“n9 Many techniques currently being implemented by district judges in the aftermath of Blakely can be found on the Internet at Sentencing Law and Policy, at <http://sentencing.typepad.com> (last visited July 12, 2004; copy available in Court of Appeals' file).”

United States v. Penaranda, 375 F.3d 238, 247 (2d Cir. 2004)

     

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United States v. Ameline (majority)

“Edwards did not argue that the Guidelines sentencing scheme violated his Sixth Amendment right to a jury trial; indeed, Edwards presumed that had the jury identified whether cocaine or cocaine base was the object of the conspiracy, the district court could have properly determined the quantity of the identified drug at sentencing consistent with the Sixth Amendment. "The Court did not opine on the guidelines' consistency with the amendment because that consistency was not challenged. It did not rebuff a Sixth Amendment challenge to the guidelines because there was no Sixth Amendment challenge to the guidelines. We are obligated therefore to make our own constitutional determination." Booker, 2004 U.S. App. LEXIS 14223, 2004 WL 1535858, at *5. n13

“n13 The flood of post-Blakely scholarship supports this conclusion. See, e.g., Nancy J. King & Susan R. Klein, Beyond Blakely, 16 Fed. Sentencing Rep. __, n.21 (forthcoming June 2004) (available at http://sentencing.typepad.com/
sentencing_law_and_policy/files/kingklein_beyond_blakely.pdf) ("We agree with Judge Posner on this point."); Stephanos Bibas, Blakely's Federal Aftermath, 16 Fed. Sentencing Rep. __, 6 (forthcoming June 2004) (available at http://sentencing.typepad.com/sentencing_law_and_policy/files/
bibas_blakelys_federal_aftermath.pdf) ("Because Edwards did not squarely resolve a Blakely challenge, lower courts are not bound to reject Blakely challenges to the Guidelines.").”
United States v. Ameline, 376 F.3d 967, 978 (9th Cir. 2004)   

    

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United States v. Ameline (dissent)

“n4 For a "blog" on the internet cataloguing in detail recent developments relating to Blakely, see "Sentencing Law and Policy" at http://sentencing.
typepad.com, a website of Professor Douglas A. Berman of the Moritz College of Law at The Ohio State University.”
United States v. Ameline, 376 F.3d 967, 986 (9th Cir. 2004) (Gould, J., dissenting)

     

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United States v. Rodriguez

“At the outset, it is important to understand that there are two different types of Booker error: "there is a constitutional error (based in the Sixth Amendment) when a judge enhances a sentence in a mandatory sentencing system based on  facts not admitted by the defendant or proved to a jury beyond a reasonable doubt," and there is "a statutory error (based in the severability principles) when a federal judge applied the guidelines as mandatory rather than advisory." Douglas A. Berman, Sorting through the Circuit circus, Sentencing Law and Policy, at http://sentencing.typepad.com/sentencing_law_and_policy/
2005/02/sorting_through.html (Feb. 14, 2005). "Notably, only some pre-Booker sentencings involved constitutional error, since not every pre-Booker guideline sentence depended upon judicial fact-finding. But every pre-Booker sentencing involved statutory error, since every pre-Booker guideline sentence was imposed based on the assumption that the guidelines were mandatory . . . ." Id.”
United States v. Rodriguez, 406 F.3d 1261, 1284 (11th Cir. 2005) (Tjoflat, J., dissenting)

     

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United States v. Levy

“Perhaps Ardley and Levy are only an attempt to limit the impact of the Supreme Court's recent watershed sentencing decisions. See Douglas A. Berman, Do-overs?, Sentencing Law and Policy, Aug. 4, 2004, at http://sentencing.typepad.com/sentencing_law_and_policy/2004/08/
doovers.html (noting that "the potential number of sentencing 'do-overs' after Blakely is mind-boggling" and citing Levy as "evidence that lower courts are going to resist 'do-overs' however they can").”
United States v. Levy, 391 F.3d 1327, 1341 (11th Cir. 2004) (Tjoflat, J., dissenting)

    

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United States v. Valencia-Aguirre

“n17 Immediately after issuance of Pho, Professor Douglas Berman published commentary at "Sentencing Law and Policy," http://sentencing.typepad.com, an excellent and provocative forum widely consulted for current and trenchant analysis of sentencing issues. Professor Berman states as part of his January 6th commentary that:

The Pho opinion elevates the perceived intent of Congress over the plain text of 18 U.S.C. § 3553(a), which the Booker Court identified as the guide for district court sentencing decisions and for circuit court review of whether a sentence is reasonable. (Where is a textualist like Justice Scalia when we need him?) http://sentencing.typepad.com/sentencing_law_and_policy/2006/
01/whats_wrong_wit.html.  

   

“Pho requires a district judge to conform to the Sentencing Guidelines' notorious 100:1 equivalency ratio between crack and powder cocaine; Professor Berman points to the aspirational language of 18 U.S.C. § 3553(a) as empowering a district judge to alter an unreasonable guidelines provision (the 100:1 ratio particularly). Although Professor Berman's desire to ameliorate the consequences of the 100:1 ratio is entirely wholesome, Congress's more particular and immanent statutory creation of a Sentencing Commission with the authority (indeed, the duty) to promulgate regulations conforms to a pattern familiar in modern government: primary interpretation of a statute entrusted to an agency empowered to promulgate interpretive regulations. The Sentencing Commission is admittedly singular in many respects, but the interposition of a mediating authority between the district judge and the "vague" and "hopelessly open-ended" (see Judge Posner in Dean) provisions of Section 3553(a) provides a mechanism necessary to avoid a cacophonous report from the field of sentencing judges.”

United States v. Valencia-Aguirre, 409 F. Supp. 2d 1358, 1379 (D. Fla. 2006)

    

   

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United States v. Bailey

“This caused one bright professor to become "puzzled" since, so he suggests, I apparently ignore a portion of a statute that Congress wrote and I am otherwise big on listening to Congress. See Douglas A. Berman, A punchy, though puzzling, perspective on parsimony (Apr. 19, 2005), available at http://sentencing.typepad.com/sentencing_law_and_policy/2005/week16/
index.html. The answer to the professor's (mock?) perplexity, is that, using my Booker discretion, I would read the "parsimony" provision with the Guidelines heavily in mind, and he, and others who abhor Congress' harshness, would read the "parsimony" provision without the Guidelines much in mind. Tell me, honestly, dear readers, which discretionary approach is more consistent with (1) what Congress and the Commission intended, (2) how statutes (as a whole) are to be construed, (3) the remedy chosen by the Supreme Court in Booker, and (4) the proper role of federal judges under Article III? If you pick Doug Berman's view, then, as Emily Litella used to say, "never mind."”
United States v. Bailey, 369 F. Supp. 2d 1090, 1092 (D. Neb. 2005)

    

Note: The blog post cited in the case, "A punchy, though puzzling, perspective on parsimony," is at the following URL: http://sentencing.typepad.com/
sentencing_law_and_policy/2005/04/a_punchy_though.html. 

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United States v. Khan

“Partly as a result of Blakely, a number of judges have declared the Guidelines dead. … See generally Sentencing Law and Policy, at http://sentencing.
typepad.com (July 12, 2004).”
United States v. Khan, 325 F. Supp. 2d 218, 223 (D. N.Y. 2004)

    

Note: It is not clear which blog post the case is referring to, but the archives from July 12, 2004 can be found here (scroll down): http://sentencing.typepad.
com/sentencing_law_and_policy/2004/week29/index.html.  The date in the case might also mean "last visited."

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United States v. Onunwor

“Because the Court cannot locate an official opinion published on this case, it presumes accurate the following order, as quoted on the Sentencing Law and Policy weblog:

We hold, with a formal opinion and dissenting opinion to follow, that the decision of the U.S. Supreme Court in Blakely v. Washington, 124 S. Ct. 2531(2004), does not invalidate the appellant's sentence under the federal Sentencing Guidelines. Accordingly, the district courts within the Sixth Circuit are hereby instructed to continue sentencing defendants in accordance with the Guidelines, as they did prior to Blakely. In the interest of judicial economy, and pending a definitive ruling by the Supreme Court, we recommend that the district courts within this circuit also announce at the time of sentencing a sentence pursuant to 18 U.S.C.A. Sec.3553(a) (West 2000 & Supp.2004), treating the Guidelines as advisory only.

Douglas A. Berman, "I'm Home . . . and Grumpy about the Sixth Circuit," Sentencing Law and Policy, Aug. 14, 2004, available at http://sentencing.
typepad.com/sentencing_law_and_policy/2004/08/im_home_and_gru.html.” Order in United States v. Onunwor, NO. 1:04-CR-211 (N.D. Ohio Aug. 19, 2004)   

   

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United States v. Phelps

“For this reason, some district courts are issuing written opinions in connection with those cases that come before them for sentencing. See e.g., United States v. Jaber, 362 F. Supp. 2d 365 (D. Mass. 2005), available at http://sentencing.
typepad.com/sentencing_law_and_policy/files/gertner_jabarmomohsenten
memo.pdf.”

United States v. Phelps, 366 F. Supp. 2d 580, 584 (D. Tenn. 2005)

     

      

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United States v. Croxford

“n33 See generally Nancy J. King & Susan R. Klein, Beyond Blakely, -- FED. SENTENCING RPRT. -- (forthcoming special issue) (draft article available on Professor Berman's helpful website http://sentencing.typepad.com).”
United States v. Croxford, 324 F. Supp. 2d 1255, 1261 (D. Utah 2004)

    

    

Note: The article referred to in the case, "Beyond Blakely," by Professors King and Klein, is posted at the following URL: http://sentencing.typepad.com/
sentencing_law_and_policy/2004/07/beyond_blakely.html.    

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United States v. Wilson (Feb. 2, 2005)

“…see also United States v. Jose Huerta-Rodriguez; 355 F. Supp. 2d 1019, 2005 U.S. Dist. LEXIS 1398, No. 8:04CR365 (D. Neb. Feb. 1, 2005), available at http://sentencing.typepad.com/sentencing_law_and_policy/files/judge_
bataillon_huerta_ruling.pdf. (last visited Feb. 2, 2005).”

United States v. Wilson, 355 F. Supp. 2d 1269, 1271 (D. Utah 2005)

“Unless a district court is clear about how it arrived at a sentence - "showing its work" as one respected commentator colorfully put it n106 - that data collection process will be aborted.

n106 http://sentencing.typepad.com/sentencing_law_and_policy/2005/01/
always_remember.html.”

Wilson, 355 F. Supp. 2d at 1286 (D. Utah 2005)   

    

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United States v. Wilson (Jan. 12, 2005)

“One possible reason for avoiding a Guidelines sentence might be the so-called "parsimony provision," which provides that "the court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment] set forth in [the Sentencing Reform Act]." n62 It is possible to argue that this provision requires the courts to impose sentences below the Guidelines range, because Guidelines sentences are not parsimonious. n63 This is an interesting argument worthy of discussion.

n62 18 U.S.C. 3553(a) (emphasis added).
n63 See http://sentencing.typepad.com/sentencing_law_and_policy (Jan. 12, 2005) (The Power of Parsimony (and Justice Breyer's Notable Omission)) (Prof. Douglas Berman tentatively advancing this suggestion).”
United States v. Wilson, 350 F. Supp. 2d 910, 922 (D. Utah 2005)

   

Note: The URL for the specific post referred to in the case, "The Power of Parsimony (and Justice Breyer's Notable Omission)," is: http://sentencing.typepad.com/sentencing_law_and_policy/2005/01/
the_power_of_pa.html 

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United States v. Johnson

“The Second Circuit has decided to continue to apply pre-Blakely sentencing law while awaiting a decision on Blakely questions certified to the Supreme Court. See Doug Berman, www.sentencing.typepad.com, post for Thursday, August 12, 2004 (discussing United States v. Mincey, where the Second Circuit decided that the district court did not err in applying the Guidelines, but withheld the mandate pending a Supreme Court decision). This suggests that the Second Circuit finds Blakely inapplicable to the Guidelines, but the court provides no reasoning on the issue.”
United States v. Johnson, 333 F. Supp. 2d 573, 577 (D. W. Va. 2004)

    

Note: The URL for the post referred to in the case, which is entitled "Second thoughts about the Second Circuit," is: http://sentencing.typepad.com/
sentencing_law_and_policy/2004/08/second_thoughts.html.

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United States v. Greer

“See Legislative Briefing on "The Girlfriend Problem", at http://sentencing.
typepad.com/sentencing_law_and_policy/2005/06/legislative_bri.html (last visited June 27, 2005). Defendant was one of the women the Caucus was concerned about.”
United States v. Greer, 375 F. Supp. 2d 790, 795 (D. Wis. 2005)

          

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Smylie v. State

“n12 We also note that Blakely has created such controversy that the so-called owner of the "Blakely Blog," Professor Douglas A. Berman, of Moritz College of Law at The Ohio State University, has stopped tracking state cases related to Blakely because of the overwhelming number and diversity of the holdings. Douglas A. Berman, In re State Blakely Interpretations, (Dec. 9, 2004) at http://sentencing.typepad.com. That so many states are wrestling with the meaning of Blakely is further evidence of its unpredictability and a further indication that reasonable lawyers would not have known of the outcome.”
Smylie v. State, 823 N.E.2d 679, 687 (Ind. 2005)

   

   

Notes: 1) The blog post referred to in the case, "In re State Blakely Interpretations," is at the following URL: http://sentencing.typepad.com/
sentencing_law_and_policy/2004/12/recent_state_de.html. 

2) The reference in Smylie to the Blakely Blog is erroneous. The Blakely Blog was authored by Jason Hernandez when he was a third-year law student at Columbia. The blog is now inactive, but still online at http://www.blakelyblog.
blogspot.com. I included it in my taxonomy as an example of a Case Blog.    

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State v. Foster

“n3 … See, also, Douglas A. Berman's legal blog, Sentencing Law and Policy, at http://sentencing.typepad.com for updates on Blakely and current source material on sentencing.”

State v. Foster, 2006 Ohio 856, P8 (Ohio 2006) 

      

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Brasher's Cascade Auto Auction

“n16 The question of what affect a rule will have on the future is an ex ante or forward-looking inquiry. Reviewing findings of fact for substantial evidence is an ex post or backward-looking inquiry. (See Solum, Legal Theory Lexicon 001: Ex Ante/Ex Post  <http://legaltheorylexicon.blogspot.com/2003_09_01_
legaltheorylexicon_archive.html>  [as of June 25, 2004].)”
Brasher's Cascade Auto Auction v. Valley Auto Sales & Leasing, 119 Cal. App. 4th 1038, 1057 (Cal. Ct. App. 2004)   

    

Note: The blog post referred to in the case, "Legal Theory Lexicon 001: Ex Ante/Ex Post," is towards the bottom of the page, under Sunday, September 14, 2003.

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