Reading Wordsworth with Hegel and Deleuze

In his article Reading Wordsworth with Hegel and Deleuze Douglas Berman reexamines Wordsworth poem, The Ruined Cottage, in terms of the importance of the Pedlar, who serves as the witness and singular moral authority in the text. Berman focuses on the inherent tension between impermanence, as exemplified by the trope of wandering, and the redemptive vision which shapes the ending of the second version of the poem (1798). While recognizing the strength of earlier critics, particularly the New Historicists, who emphasized Wordsworth\u27s displacement of social and material reality into nature, Berman argues that wandering, both in its physical form, and as metaphor for impermanence, undermines the quest for permanence, complicating thematically and linguistically, our efforts to wrest any coherent interpretation from the text. Instead of relying on the Hegelian Aufhebung as dominant paradigm, a critical interpretation based on a Deleuzian structure may be more fruitful in helping us understand the challenges Wordsworth faced when writing the poem – and, in particular, his conceptualization of nature – and better appreciate its power, even while acknowledging that, to adopt this paradigm works against the grain of Wordsworth\u27s own text

Foreword: Beyond Blakely and Booker: Pondering Modern Sentencing Process

The Supreme Court’s landmark decision in Blakely v. Washington and its federal follow-up United States v. Booker are formally about the meaning and reach of the Sixth Amendment’s right to a jury trial. But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment. And the future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in the unexplored shadows of the Supreme Court’s decisions in Blakely and Booker. In this foreword, I explain why an important enduring question which emerges from the Supreme Court’s recent sentencing jurisprudence concerns whether, when and how procedural issues other than the Sixth Amendment’s jury trial right will be addressed after Blakely and Booker. In Part I, I provide a brief account of modern sentencing reform and its neglect of an array of procedural issues. Part II focuses upon the Supreme Court’s past and present jurisprudential struggles with procedural rights at sentencing. Part III sketches considerations for courts and other key sentencing actors and institutions as they explore what process is due in modern sentencing systems. Part III concludes by suggesting that the pitched battle over the rights and results in Blakely and Booker reflect competing visions of what procedural concepts and norms will take center-stage as the Supreme Court considers the applicable constitutional rules for modern sentencing decision-making. Justice Stevens leads a faction of the Court concerned about safeguarding procedural rights for defendants at sentencing, while Justice Breyer leads a faction of the Court concerned about ensuring that applicable procedures at sentencing serve the goal of sentencing uniformity. But, with Justice Ginsburg having allied herself with both of these competing factions in Booker, the schizophrenic Booker ruling further obscures which principles should guide lower courts in considering the broad range of procedural issues beyond jury trial rights that follow in the wake of Blakely and Booker

Conceptualizing Blakely

The Supreme Court’s decision in Blakely v. Washington has generated impassioned judicial and academic criticisms, perhaps because the “earthquake” ruling seems to announce a destructive rule in search of a sound principle. Read broadly, the jury trial rule articulated in Blakely might be thought to cast constitutional doubt on any and all judicial fact-finding at sentencing. Yet judicial fact-finding at sentencing has a long history, and such fact-finding has been an integral component of modern sentencing reforms and seems critical to the operation of guideline sentencing. The caustic reaction to Blakely reflects the fact that the decision has sowed confusion about constitutionally permissible sentencing procedures — and risks impeding the continued development of sound sentencing reforms — without stating a clear principle to justify the disruption it has caused. But extreme concerns about Blakely are the result, in my view, of a failure to appreciate the decision’s core principle, as well as from the Supreme Court’s failure to articulate the proper limits of that principle. I see a fundamental — and fundamentally sound — principle at work in Blakely, and I believe the Blakely rule, once properly conceptualized and defined, is neither radical nor necessarily destructive to the project and goals of modern sentencing reforms. The fundamental and sound principle at work in the Blakely line of cases, as well as the principle’s proper limit, centers on an essential offense/offender distinction. The Constitution frames the jury trial right in terms of “crimes,” which are the basis for a “prosecution” of “the accused.” This language connotes that the jury trial right attaches to all offense conduct for which the state seeks to impose criminal punishment, but the language also connotes that the jury trial right does not attach to any offender characteristics which the state may deem relevant to criminal punishment. That is, all facts and only those facts relating to offense conduct which the law makes the basis for criminal punishment are subject to the jury trial right; such facts are in effect the essential parts of those “crimes” which the state wishes to be able to allege against “the accused” in a “criminal prosecution.

Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs

A general debate concerning whether law blogs can be legal scholarship makes little more sense than a general debate concerning whether law articles or law books can be legal scholarship. Blogs—like articles and books—are just a medium of communication. Like other media, blogs surely can be used to advance a scholarly mission or a range of other missions. Looking through the debate over law blogs as legal scholarship, I see a set of bigger and more important (and perhaps scarier) questions about legal scholarship and the activities of law professors. First, the blog-as-scholarship debate raises fundamental questions about what exactly legal scholarship is and why legal scholarship should be considered an essential part of a law professor’s vocation. And the key follow-up question is whether blogging should be part of that vocation. This paper sets out a few initial observations about the evolution and value of legal scholarship, and then share some thoughts on the power, possibilities, and pitfalls of law professors blogging to explain why blogging will become an accepted and valued part of a law professor’s vocation