Expert Analysis

• Perspectives

  DOJ Charging Memo Rescission Aids Prosecutorial Discretion

  

  The U.S. Department of Justice's recent rescission of a 2017 memo that required prosecutors to charge federal defendants with the offenses that would carry the most severe penalties should be welcomed by prosecutors associations as supporting prosecutorial discretion, even when the new policy may lead to leniency, says Marc Levin at the Council on Criminal Justice.

• 4 Takeaways For States From 1st Circ. Wire Act Lottery Ruling

  

  The First Circuit's recent decision in NH Lottery Commission v. Rosen, that state-run, intrastate, online lotteries can continue to operate, may precipitate significant growth in the gambling industry despite limitations on online wagering, say attorneys at White & Case.

• Series

  Judges On Race

  

  On the heels of nationwide calls to address systemic racism and inequality, five sitting state and federal judges shed light on the disparities that exist in the justice system and how to guard against bias in this series of Law360 guest articles.

• Challenging Sentencing Guidelines With Comparable Cases

  

  A recent report from the U.S. Sentencing Commission confirms that the commission's guidelines can have a strong effect on a judge's choice of sentence, but defense lawyers can change judges' minds by showing that people similarly situated to their client received sentences significantly below the guidelines range, says Michael Yaeger at Carlton Fields.

• New Criminal Rule 5(f) Firms Up Prosecutor Brady Obligations

  

  New Federal Rule of Criminal Procedure 5(f) highlights the importance of prosecutorial compliance with Brady obligations by producing exculpatory materials at the beginning of every criminal case and marks an important win in the battle for a more fair and balanced justice system, say Lily Becker and Amy Walsh at Orrick.

• Opinion

  SEC Enforcement Needs New Guiding Principles

  

  New leadership at the U.S. Securities and Exchange Commission should replace the agency’s outdated approach to securities enforcement with one that aggressively punishes fraud and roots out bad actors, but also values regulation and collaboration where there are problems that can be fixed instead of punished, say Ian Roffman and Mark Jensen at Nutter.

• Perspectives

  Judges On Race: Lack Of Data Deters Criminal Justice Reform

  

  Many state courts' failure to gather basic data on sentencing and other important criminal justice metrics frustrates efforts to keep checks on judges’ implicit biases and reduce racial disparities, say Justice Michael Donnelly at the Ohio Supreme Court and Judge Pierre Bergeron at the Ohio First District Court of Appeals.

• The Challenges In Putting A Price Tag On Free Speech

  

  The focus on nominal damages in last week's U.S. Supreme Court arguments in Uzuegbunam v. Preczewski points to the fact that quantifying harm in free speech violation cases is not only abstract but seemingly impossible, says Roy Gutterman at Syracuse University.

• Pandemic Is Changing Compassionate Release Calculus

  

  Whereas compassionate release applications for white collar defendants were previously rare, courts are now approaching these applications with greater leniency to reduce sentences or to impose sentencing alternatives in the appropriate circumstances, which may continue beyond the pandemic, say Jamie Furia and Carly Coleman at Lowenstein Sandler.

• Perspectives

  Judges On Race: The Power Of Discretion In Criminal Justice

  

  Judges should take into consideration the several points of law enforcement and prosecutorial discretion — from traffic stops to charging decisions and sentencing recommendations — that often lead to race-based disparate treatment before a criminal defendant even reaches the courthouse, say Judge Juan Villaseñor and Laurel Quinto at Colorado's Eighth Judicial District Court.

• Trademark Law Trends To Follow In 2021

  

  Last year was a busy time for trademark litigation, and this year practitioners will be watching for the effects of several recent developments, including U.S. Supreme Court decisions in Romag and Booking.com and pandemic-induced counterfeiting, says Matthew DeAntonio at Bradley Arant.

• Perspectives

  Judges On Race: The Path To A More Diverse Bench

  

  To close the diversity gap between the judiciary and the litigants that regularly appear in criminal courts, institutions including police departments, prosecutor offices and defense law firms must be committed to advancing Black and Latino men, says New York Supreme Court Justice Erika Edwards.

• Next Steps For Now-Legal Mississippi Medical Marijuana

  

  While unlikely to derail Mississippi's rollout of newly legal medical marijuana, a shortage of funds and a state Supreme Court review are among the challenges the state faces as it prepares for summer availability, says Ben Mitchell at Butler Snow.

• How To Prepare For Congressional Investigations In 2021

  

  Congressional investigations in the health care, financial services, fossil fuel and technology sectors are likely to intensify next year amid a highly partisan environment, and companies that may be targets should get ready for testimony and document production well before an inquiry, say attorneys at Hogan Lovells.

• Looking For Judicial Activists? Check The Footnotes

  

  U.S. Supreme Court nominees typically face intense questioning over potential judicial activism, but a better way to gauge judges' activist tendencies may be to look at the footnotes in their opinions, say Christopher Collier at Hawkins Parnell and Michael Arndt at Rohan Law.