Jeb exclamation point!

Funny video of Jeb from the Emmys here.

Meantime, all the actors playing lawyers in OJ won.  And Marcia Clark actually attended.

Should William Pryor and Julie Carnes have recused from Matchett?

Judge Pryor, joined by Carnes, starts his order respecting the denial of rehearing this way (background here):

A majority of the Court has voted not to rehear en banc our decision in this appeal, United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), which held that the advisory sentencing guidelines cannot be challenged as void for vagueness. As members of the panel (and coincidentally the only members of this Court to have served on the United States Sentencing Commission), we write to explain why we agree with that decision.
We divide our discussion in two parts. First, we explain that Matchett is correct because the vagueness doctrine applies only to laws that regulate the primary conduct of private citizens. Advisory sentencing guidelines regulate judges, not private individuals; they guide judicial discretion within a statutory range. Advisory sentencing guidelines do not define crimes or fix punishments. Second, we explain that Matchett is not worthy of en banc rehearing.

 But as members of the U.S. Sentencing Commission, should they have recused? Andrew Hessick argues in this post that they should have:

Judge Pryor does not have a personal interest at stake in the case, but he does have an interest in his capacity as a member of the Commission. Holding that the vagueness doctrine does not apply to sentencing guidelines protects his work on the Commission from future challenges of that sort.
His participation in the decision also raises separation of powers concerns. The sentencing guidelines are legislative in nature. A judge who both sits on the Commission and rules on the Commission’s guidelines acts as both judge and legislator. Of course, judges sit on committees that create all sorts of rules―evidence, civil procedure, etc. But those committees prescribe rules for the administration of the courts. Sentencing guidelines are different. They prescribe terms of imprisonment. Anxiety about deprivations of liberty at the hands of the government is a major reason the Constitution separates powers.

"But just to reassure my colleague, I note that I do not now nor have I ever lived in fear that the Sentencing Commission might issue a “nonsensical guideline about ‘cheese.’”

That was Judge Rosenbaum, referring to Judge Pryor's opinion respecting the denial of en banc review in the big Matchett case. (She says this footnote referring to that sentence: "Now, that is a sentence I never imagined I would write in an opinion.")

Lots to digest in the 88 pages of opinions, but Rosenbaum vs. Pryor is fun to read.  And, of course, Martin's dissent is full of good stuff too.  But back to Rosenbaum.  Here's her footnote 3:

In fact, I would be surprised if the Sentencing Commission had reason to issue a
guideline about cheese at all. After all, the moon does not fall within the Sentencing
Commission’s jurisdiction. See Robert Nemiroff & Jerry Bonnell, Hubble Resolves Expiration Date for Green Cheese Moon, ASTRONOMY PICTURE OF THE DAY (Apr. 1, 2002), http://www.phys.ncku.edu.tw/~astrolab/mirrors/apod_e/ap020401.html (“The popular ‘Moon is made of Green Cheese’ myth can be traced back almost 500 years. It has been used historically in context to indicate a claim so clearly false that no one . . . will believe it.”); see also Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. I, Jan. 27, 1967, 18 U.S.T. 2410 (“The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.”).

More to follow.

Is "young and vivacious" the way you should be describing a law school dean?

Well, the UF Dean was not too happy about the description by the UF Law Review, but now is going to apologize for her objections:

The dean of the University of Florida's Levin College of Law, who like other lawyers is trained to weigh words with care, has created a stir with her objection to being called "young and vivacious."
An expert in feminist legal theory, Laura Rosenbury wrote a 4,000-word article for the New England Law Review that ended by recounting a banquet last fall when the male president of UF's Florida Law Review introduced Rosenbury with that description. In the article published this summer, Rosenbury said when she discussed her concern — whether a male dean of the college would be described as "vivacious" — the law review adviser responded, "But you look so much younger."

Now Rosenbury is being criticized by others connected to the Levin College of Law for such public criticism of her colleagues, who though not specifically named can be identified by their positions.
“The UF Levin College of Law and the University of Florida should be embarrassed that the Dean of their law school publicly calls out and identifies one of her own students and faculty members with the borderline slanderous accusation of sexism, against two of the most well-respected, tolerant and unprejudiced people at the school,” Michael Balducci, an alumnus and former Florida Law Review executive editor, wrote in a Facebook post.
Rosenbury said she has heard similar pushback from others.

***
Rosenbury said the last part of the article was to say she still encountered implicit gender bias as a dean, and while overt bias Frug had faced during her life has lessened with time, bias based on one’s identity still exists. In hindsight, she said she could have made the point in a way that avoided any embarrassment to the student.
“I think it’s good that people are talking about implicit bias in the legal profession,” she said. “I hope, though, that we can find more productive ways of talking about it.”
She’s been traveling the past week, but she plans to apologize to the student and faculty adviser once she’s back at UF.
“I will certainly apologize if they think I was calling them sexist,” she said. “Certainly that was not my intent, and I want to apologize for that.”

UM's Law Review Edition on the 11th Circuit is out (UPDATE with Fed Bar news for tonight)

UPDATE -- I forgot to mention that tonight is the Federal Bar Association's big Awards Dinner at the JW Marriott Marquis.  I am so proud and happy to say that Judge Robert L. Dube is being award the "NED" award (Judge Edward B. Davis Award).  Judge Davis would have been so happy with this choice as he and Judge Dube were close friends when they served on the bench together.

Here.

Below are the articles, including one by yours truly and the forward by Judge Darrin Gayles.  Also of note is that Professor Frohock's article is extremely timely as the 11th Circuit just granted en banc review of the case she covers, Patterson v. DOC.

Volume 70, Issue 4

Eleventh Circuit Issue

Masthead and Table of Contents

Foreword
by Hon. Darrin P. Gayles

Articles

ISIS’s Get Rich Quick Scheme: Sell the World’s Cultural Heritage on the Black Market—Purchasers of ISIS-Looted Syrian Artifacts Are Not Criminally Liable Under the NSPA and the McClain Doctrine in the Eleventh Circuit
by Lindsey Lazopoulos Friedman

Sentence Structure: Prohibiting “Second or Successive” Habeas Petitions After Patterson v. Secretary
by Christina M. Frohock

Hurst v. Florida’s Ha’p’orth of Tar: The Need to Revisit Caldwell, Clemons, and Proffitt
by Craig Trocino and Chance Meyer

That ‘70s Show: Why the 11th Circuit was Wrong to Rely on Cases from the 1970s to Decide a Cell- Phone Tracking Case
by David Oscar Markus and Nathan Freed Wessler

Notes

Neither Strict Nor Nuanced: The Balanced Standard For False Claims Act Pleading In The Eleventh Circuit
by C. Caitlin Giles

Cellphones, Stingrays, and Searches! An Inquiry into the Legality of Cellular Location Information
by Jeremy H. D’Amico

One of These Interns Is Not like the Others: How the Eleventh Circuit Misapplied the “Tweaked Primary Beneficiary” Test to Required Clinical Internships
by Samuel C. Goodman

Privacy rights and Justice Scalia

Although I've argued many times in the past that Justice Scalia was the best Supreme Court Justice for criminal defendants on the Court in which he sat, he was not a big 4th Amendment guy and certainly not a big privacy rights advocate.  Nevertheless, his family asked that his burial site be kept secret from the public.  The internet didn't let that happen for long.  From the AP:

Supreme Court Justice Antonin Scalia's funeral was attended by thousands and carried on live television, but when the hearse pulled away from the church and headed to his burial site, his family asked for privacy and Supreme Court officials declined to say where Scalia was being laid to rest.

But few things stay private in the internet age, and Scalia's grave has become public with the help of a website.

Within months of his death in February, the location of Scalia's grave - at Fairfax Memorial Park in Virginia - was recorded on the cemetery website Findagrave.com with precision: Garden of the Crucifixion, Lot 870, Site A. A contributor to the site added photos, too. Recently Wikipedia added the location and a photo to Scalia's page.

Citing privacy, cemetery President Michael H. Doherty declined to discuss the late justice or say how frequently visitors ask for help finding Scalia's gravesite in the cemetery that is dotted with brightly colored artificial flowers and in-ground memorial markers rather than headstones. But the cemetery will direct anyone who asks, its standard practice for any gravesite, though with the information posted online, visitors don't necessarily need help. When an Associated Press reporter visited recently, a bronze vase that's part of the justice's gravesite was empty; Find A Grave's pictures from May showed fresh flowers.

Scalia is the first Supreme Court justice to be buried at the cemetery. Some are buried at Rock Creek Cemetery and Oak Hill Cemetery in Washington and Cedar Hill Cemetery in Suitland, Maryland.

Should Obama be doing even more with his commutation power?

The WP says yes.  From the intro:

PRESIDENT OBAMA began August by commuting the sentences of 214 federal inmates, and he ended the month by commuting 111 more. Generally the pardon and commutation power is used sparingly and gets attention only when presidents use it to help cronies or former staffers. Now it is being used to commute the sentences of people who could not spare a dime to donate to a political campaign. This is a historic milestone — but it is also not nearly enough.

Mr. Obama’s August tally is the highest one-month presidential commutation total ever — even including those last-minute flurries of commutations and pardons presidents typically unleash during their final days in office. In a single month, Mr. Obama doubled the number of sentences he has shortened since taking office — to 673. His accelerating pace reflects an initiative to use the commutation power with more ambition than any modern president. His cumulative total is higher than that of the past 10 presidents combined.
The president has the power to shorten sentences in order to compensate for inequities in the justice system, an authority and responsibility that most neglect. Two years ago, the Obama Justice Department announced a program to encourage certain types of federal prisoners to petition for clemency. Mr. Obama chose to target inmates who are serving long sentences for nonviolent crimes, mostly drug-related, and who would be sentenced more leniently under current rules. The White House points out that more than a third of those the president has commuted were serving life sentences, even though they were relatively low-level offenders.

You have the right to confront an actor against you.

Another "terror" trial and another set of witnesses allowed to testify in disguise.  From the Herald:

The federal government’s secret informant and undercover agents who helped catch a suspected Key West terrorist last summer may testify at trial using fake names and even disguises, a judge has ruled.
***
Two FBI agents and one confidential informant “may testify under their undercover pseudonyms at trial without disclosing their true identities,” Magistrate Judge Lurana Snow wrote in an Aug. 17 ruling. “The defense shall be prohibited from asking any questions seeking personal identifying information from or about [them].”
Also, the witnesses may enter and leave the courthouse from a non-public doorway and their voices and pictures may not be publicly disclosed through any recordings or images, Snow ordered.