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Tuesday, December 31, 2013

Happy new year!

I am not particularly clairvoyant, but I harbor little doubt that, just like this year, 2014 will usher in major and minor developments in various areas of law and law enforcement.  Happily, there will be time to think (and write) about all of these matters tomorrow.  Until then, spend some time with friends or family, and be sure to enjoy what is left of 2013.  Happy new year!   

Posted by Miriam Baer on December 31, 2013 at 10:21 PM | Permalink | Comments (0) | TrackBack

End of year enforcement trends

With the end of the year closely approaching, it appears that several major corporations either have resolved or are about to resolve government investigations of their employees' violations of the Foreign Corrupt Practices Act.  Among them:

Hewlett-Packard, whose Polish and German subsidiaries allegedly committed a number of crimes in connection with transactions in Poland, Russia and other countries. 

JP Morgan, whose Chinese subsidiary is under investigation for public sector transactions that may have come about as a result of hiring under its "sons and daughters" hiring program.  JP Morgan's New York headquarters reportedly had no knowledge of the program.  

Archer Daniels Midland (ADM), whose Ukrainian subsidiary entered a guilty plea in connection with its violations of the FCPA in regard to securing certain Value Added Tax refunds (you can read more about the guilty plea here).  Although charged in an SEC complaint, ADM itself will not be criminally prosecuted for it subsidiary's violation, due in part to its voluntary disclosure of its subsidiary's wrongdoing, its extensive cooperation with the government's investigation, its agreement to implement changes in its compliance program (which reportedly was too decentralized) and provide the government with compliance reports for the next three years.

I'm sure there are more out there, but these came to mind as I was perusing various news outlets and blogs.  The ADM resolution is interesting because it combines the corporate parent's criminal non-prosecution agreement (NPA) with its offending subsidiary's criminal indictment and guilty plea. (To be exact, it is in fact a "criminal information" that was filed; for all practical purposes, the information and indictment are identical, except that the defendant's waiver allows the government to file the information in court without seeking a "true bill" from the grand jury).

Subsidiary indictments are neither new nor unique (particularly in the FCPA context).  They have been in existence for some time now, and as the case with ADM, they often represent some negotiated settlement between the offending corporation and the Department of Justice.  Indeed, it would be interesting to know what percentage of the convicted foreign firms that were the source of Brandon Garrett's relatively recent study (discussed here), and the convicted firms that formed the focus of Gabriel Markoff's study were in fact subsidiaries entering negotiated guilty pleas. 

Given that NPA's and deferred prosecution agreements (DPA's) have been on the receiving end of much criticism (including my own), one cannot help but wonder if the ADM model - NPA/DPA for the parent, plus criminal indictment for the sub - will become the norm for most high-profile corporate prosecutions in 2014 and beyond.  If it does, I doubt it will quell criticisms of corporate prosecutions, from either the right or left.  


The subsidiary "indictment" is still, at bottom, a negotiated agreement bewteen a corporation and a government prosecutor.   As noted earlier, the term "indictment" is a misnomer in this context, since in most instances, the defendant entity will waive indictment and accept the entry of an information, whose content will likely be the product of intense negotiation.  

Accordingly, subsidiary convictions are not likely to dispell the transparency concerns that scholars have raised regarding DPA's and NPA's. The process by which the government decides which subsidiary to charge and which charges to file will continue to take place outside the public eye.  Courts may retain the power to reject or alter the terms of the subsidiary's plea agreement, but courts are already moving in that direction anyway where DPA's are concerned.  So it is unclear how much additional transparency or accountability a subsidiary conviction will add to the mix.  

Does the subsidiary indictment represent an improvement over the reported retributive weaknesses (most recently pointed out by Judge Rakoff) of DPA's and NPA's?  If it does, it seems marginal at best.  Those who believe the government has coddled corporate offenders are not likely to be pleased by subsidiary convictions.  (See, e.g., this post here).  And those who prefer blame to be levelled at responsible individuals will continue to feel discomfort that the government has chosen to afix blame to a diffuse entity.   

Putting aside retributive concerns, do subsidiary convictions deter more misconduct than straight DPA's?  

One can imagine subsidiary convictions imposing additional punishment on top of a straight DPA; the same level of punishment, now split between the two entities (in which case there should be no additional deterrent effect).  Finally, and quite perversely, we might imagine subsidiary convictions resulting in reduced punishment in the event a parent is able to extract significant concessions on parent-level fines and monitoring in exchange for the sub's guilty plea.  In that case, the subsidiary conviction may appear more symbolically palatable, but otherwise represent a reduction in actual punishment. 

Perhaps this third possibility is too far-fetched.  Then again, I've floated counter-intuitive ideas about federal cooperation in the past.  I'll think - and write - about these issues at greater length in the coming year.                      

Posted by Miriam Baer on December 31, 2013 at 05:25 PM | Permalink | Comments (0) | TrackBack

Monday, December 30, 2013

Prawfs/Co-Op Happy Hour Details

For those of you wandering into NYC the next few days for AALS, here's the critical news: the annual Prawfs/Co-Op Happy Hour will be this Friday at 930pm until midnight (at least) at the Hilton "Bridges" Bar. See you then and there, and please pass it on!  As you'll see from Yelp, we're apparently prioritizing location and big pours in our selection of venue.

In the meantime, greetings and hugs for the New Year from Tel Aviv. See many of you soon, I hope. 


Posted by Administrators on December 30, 2013 at 06:32 PM in Blogging | Permalink | Comments (0) | TrackBack

Law School Hiring, 2013-2014 - Reminder

Please submit information about hiring (e.g., callbacks, a school that isn't hiring, etc.), here, on Thread Two of our Law School Hiring information. The information will be gathered on this spreadsheet.

I will post the "offers" thread, but not until February at the earliest.

[Update, 1/2/14: Link to spreadsheet fixed.]

Posted by Sarah Lawsky on December 30, 2013 at 03:13 PM in Entry Level Hiring Report, Getting a Job on the Law Teaching Market | Permalink | Comments (0) | TrackBack

Sunday, December 29, 2013

What effect pleadings?

The dueling decisions by two different federal district judges on the NSA surveillance program--one upholding it, one invalidating it--reminded me of a post I wrote in June comparing the two complaints. I argued that the complaint in ACLU v. Clapper (the Southern District of New York case) was better than Klayman v. Obama (the District of D.C. case). The latter had a lot of extraneous noise and "pleading as press release" nonsense, a number of legal mistakes, and asked for the ludicrous sum of $ 3 billion in damages; the former was cleaner, simpler, and legally sounder.

So what should we conclude from the fact that the plaintiff won in Klayman but lost in ACLU? Two possibilities jump to mind:

   1) Pleading-as-press-release works not just publicly but legally as well. Heightened, overstated, politicized pleading does affect the judge by impressing the urgency of a constitutional claim. That is lost in a complaint that lacks the "passion" we see in Klayman.

   2) Pleadings don't matter to the outcome, at least in constitutional cases. It's all about the legal arguments made in the subsequent motions related to injunctions, dismissal, or summary judgment.

Other possibilities?

Posted by Howard Wasserman on December 29, 2013 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8) | TrackBack

Saturday, December 28, 2013

Teaching Criminal Procedure in a changing world

As I ready myself for teaching a new semester of Criminal Procedure I (often known as the "investigation" course, as opposed to the Crim Pro II "adjudication" course, which ostensibly covers everything from "bail to jail"), I cannot help but think how much the course -- and my syllabus - has changed in the last year or so, and how much it is likely to change over the next 24 months.  

Just two years ago, the discussion of whether police action constituted a "search" would have been answered primarily by asking whether the action intruded upon an individual's "reasonable expectation of privacy."  Today, however, it would be unthinkable not to also ask whether the action interefered with the individual's property rights.  

A few years ago, if one taught the "third party doctrine," one likely referred to it as an established yet disfavored doctrine that drew the ire of civil libertarians and privacy scholars, but whose implementation continued largely without challenge.  (For a defense of the doctrine, see Orin Kerr's article here; for an extensive critique of the doctrine, and suggestions for reforming it, see Christopher Slobogin's very well received  2007 book here).  Thus, you couldn't complain if the government sought your phone records without a search warrant because you had no "reasonable expectation of privacy" in the phone numbers you voluntarily dialed and communicated to the telephone company.   

Today, the third party doctrine appears less stable than it once seemed, partially because the government has harnessed that "third party information" in ways that make us increasingly uncomfortable, particularly in terms of the volume of information collected and stored.  Thus, as has been widely reported, lower court judges have rendered dichotomous opinions on the constitutionality of the NSA's program relating to the collection of telophony metadata.  It seems inconceivable that the Supreme Court will not eventually take up this issue itself.  Until it does, however, we will likely see more and more aggressive attacks on the doctrine, as well as challenges from the data-collecting "third parties" themselves, as witnessed by this case.

And finally, a few years ago, I would not have thought a police officer's surveillance of an individual in a public setting violated the Fourth Amendment, since the Supreme Court had previously established that we generally have no expectation of privacy in our public movements.  And yet, following the DC Circuit's decision in United States v Maynard (which eventually became United States v Jones when it was decided by the Supreme Court), individual jurists and scholars have increasingly embraced a mosaic theory of the Fourth Amendment, under which a discrete action (watching someone in public, seeking their phone records via a grand jury subpoena) becomes unconstitutional when government officials engage in that action too intensively and for too long, and with regard to too many people.  (Note: not everyone embraces the mosaic theory; see Orin Kerr's extensive analysis here, where he also raises a number of concerns regarding its implementation).  Like the assault on the third party doctrine, the mosaic theory too is in flux. Until the Court as a whole addresses it directly, it is difficult to predict when and how it will apply. 

Perhaps this is a big hullabaloo about nothing.  After all, two or three years from now, the third party doctrine might emerge more or less intact, and the mosaic theory might fall by the wayside.  Or maybe not. Much of the doctrinal unrest has been driven by technological advances that make the government's surveillance and collection and storage of data cheaper and more pervasive.  Even a relatively sympathetic "law and order" gal like myself can't help but be alarmed by the government's rapidly expanding surveillance abilities

Until we reach some new equilibrium, these issues present challenges for criminal procedure students and teachers alike. For professors, the issue is one of organization: which materials should we cut and which should we leave intact in order to make room for discussion of new cases and evolving doctrines?  It's not an easy question to answer: the third party doctrine may be under assault, but that doesn't lessen the need to teach the "fruit of the poisonous tree" doctrine or the exculsionary rule.  At this point, one could easily fill a single semester with just the Fourth Amendment.  That wouldn't be of much service to our students, who presumably want (and need) to learn something about the Fifth and Sixth Amendments.  Nevertheless, I have a feeling that for many professors, the Fourth Amendment will continue to cast a very long shadow over the rest of the course.  Given the importance of the issues discussed above, however, I'm not so sure that's a bad thing.  

Posted by Miriam Baer on December 28, 2013 at 05:37 PM | Permalink | Comments (2) | TrackBack

Concluding on a high note: student papers highlight diversity of important marijuana law and policy topics

I was eager and excited to teach a law school seminar this past term focused on marijuana law, policy and reform in part because I have come to see how many diverse and dynamic legal and policy issues are raised and impacted by states legalizing medical and recreational marijuana use.  Last week, my students providing a fitting final demonstration of this reality when they turned in their final papers.  Below I provide the titles of the seminar papers submitted for this course:

You’re Fired…Maybe: How the Legalization of Recreational Marijuana Will Affect Employee and Employer Relations

The Anonymous Online Black Market

The Pliant Majority: Cognizing the Attitudinal Shift Toward Marijuana Legalization in America

The War on Federalism: Battleground Medical Marijuana

Federal Sentencing in Marijuana Offenses: How Should Federal Judges Reflect the National Changes in Policy When Sentencing Marijuana Offenders?

Marijuana or Xanax: the Lesser of Two Evils

Marijuana Policy and Immigration Law: Policing Borders, Blurring Lines, and Reforming Policies

Privacy Concerns Within the Ever-growing Marijuana Industry

Responsible Smoking – A Guide to Police Powers in a Recreational-Use State

Nuestra Voz Entre La Hierba: the Latino Vote and Marijuana Reform

“Weed Here, Get Your Weed Here!”:The First Amendment and Advertising Legalized Marijuana

Keeping the Flashing Lights On: Using Civil Forfeiture to Fund Law Enforcement by [Not] Punishing Drug Offenders

Additional Revenues for the City of Detroit and State of Michigan: An Initiative for Legalized Marijuana within the City of Detroit

Legalize and Tax Marijuana: The Path to a Better Fiscal Future for Ohio

A Guide to Marijuana Reform in the Buckeye State: How and Why Ohio Should Lead America’s March Towards Marijuana Legalization

Starting a Retail Marijuana Business: Colorado or Washington?

As these paper titles highlight, students used their final papers as an opportunity to explore employment law, cyber-law and markets, public opinion trends and minority voting patterns, privacy law, federalism, the First Amendment, federal sentencing and civil forfeitures, immigration law, and health law as well as the array of tax and business issues that surround marijuana reform policies and practices. (Once I finish grading all the papers, I am planning to post some or all of them in this space if I surmise there is reader interest.)

In some future "wrap-up" posts, I hope to discuss more broadly what I thought worked best (and did not work so well) in my development of this seminar. I also want to discuss a bit why I think I should probably wait until late 2015 or early 2016 to teach a course like this again.

Cross-posted at Marijuana Law, Policy & Reform

Posted by Douglas A. Berman on December 28, 2013 at 11:25 AM in Life of Law Schools, Teaching Law | Permalink | Comments (0) | TrackBack

Wednesday, December 25, 2013

More on stays and injunctions, marriage equality edition

Last month, I wrote about when courts will or should stay negative injunctions ("this law is unconstitutional, stop enforcing it") pending appeal, pointing to marriage equality as a case in which a stay ordingarily would be appropriate. Well, perhaps not. Following last week's district court decision invalidating Utah's ban on same-sex marriage, both the district court and the Tenth Circuit declined, without explanation, to stay the injunction pending appeal. This means that, once state offices open after Christmas, same-sex couples will be able to get married in Utah.

Mike Dorf has a nice a take on this decision--he calls it legally and morally correct, but still wrong. Dorf makes the same argument I did about chaos and confusion (and, he adds, heartbreak) if marriages recognized in the interregnum are then declared invalid if the district court is reversed on the merits on appeal. In Dorf's view, this case came down to the likelihood of success on the merits prong--just as the Texas abortion case did last month--which here cut against issuing the stay. In light of Windsor, the state is not likely to prevail on the merits on appeal to the Tenth Circuit or SCOTUS; bans on same-sex marriage simply cannot stand. That overcomes any concerns for (or real risk of) chaos and heartbreak. Nevertheless, Dorf argues that decision not to stay still is wrong, just because one never knows what SCOTUS will do or when. I agree, which is why I would argue that risk-of-chaos should play a larger role than likelihood of success in cases such as this.

The next move could make for a fun Christmas. Step one is a petition to the Tenth Circuit Justice, Justice Sotomayor; she can either decide on the stay herself or refer the matter to the full Court. If she denies the stay, the state could file a renewed application with any Justice of their choosing.  Since it is Christmas, Justice Kagan may be the easiest one to find.

Merry Christmas to all who celebrate.

Update 12/27: Andrew Koppelman adds this tidbit: The Utah AG did not request a stay as alternative relief in its original pleading, which has been common practice in marriage equality cases. (Koppelman's post links to a transcript of the stay hearing in the district court, where the court says he did not enter a stay because no one requested one and the AG seems confused that the court did not enter a stay sua sponte). This explains the procedural rush over the stay, although I doubt it ultimately would have made a difference.

Posted by Howard Wasserman on December 25, 2013 at 08:11 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5) | TrackBack

Tuesday, December 24, 2013

Happy holidays!

Some of you will spend tomorrow with friends or family, possibly exchanging gifts.  If you do, be sure to check out this oldie but goodie.  Some of you (like me) will spend tomorrow en route to somewhere else, marveling that the airports aren't nearly as empty as you thought they would be, perhaps because everyone else has figured out that flying on Christmas Day is cheaper.  And finally, some of you (including, perhaps, Justice Kagan) will spend tomorrow devising routines of your own, which in turn may come to acquire a cult-like status.  Whatever you do, have fun, be merry and enjoy some well-deserved rest!   

Posted by Miriam Baer on December 24, 2013 at 10:15 PM | Permalink | Comments (0) | TrackBack

Monday, December 23, 2013

NYC's newest data tool

In the final days of his mayoral term, Mike Bloomberg has announced the rollout of a new database available to the public, known as the Data Analytic Recidivism Tool, or DART.  DART compiles "recidivism" data on all offenders arrested in NYC in 2009.  I place the word "recidivism" in quotes because the DART database tracks all individuals who were initially arrested in 2009 in NYC, including those who were not necessarily convicted of anything.  Accordingly, the city appears to be labeling (untentionally?) as "recidivist" any person who was arrested initially in 2009 and then re-arrested again within that year.  This is not the definition of recidivism used by the Bureau of Justice Statistics, which tracks recidivism among released offenders 

NYC's new DART database ostensibly enables researchers to establish correlations between repeate arrests and certain crimes and offender characteristics.   As explained by the official press release:

DART enables users, including criminal justice professionals, program planners and researchers to select a group of defendants based on factors like age, prior criminal history and details about their criminal cases. DART will then produce a graph displaying three different one-year re-arrest rates for the selected group, including the percentage re-arrested for any crime within a year; the percentage re-arrested for a felony within a year; the percentage re-arrested for a violent felony within a year; and a comparison to the citywide average.

Out of curiosity, I decided to visit the DART website and try the database.  Here's what I discovered:

First, the age groupings seem large and somewhat arbitrarily constructed.  You cannot run a report on "21 year olds arrested once" but instead must run a report for individuals falling within various age groups such as 16-19, 20-24, 25-29, 30-34, 35-39, and 40+.  Are we really to believe that recidivism breaks according to these very neat, five year groupings?  Moreover, is there any good reason (other than expediency) for lumping everyone over the age of 39 in the same category?  Were I a decision-maker (ie, sentencing judge, probation officer etc), I might worry that my data has been unnecessarily skewed by these groupings. For example, 40 year old criminals may be receiving a slight benefit, if we assume that a 40 year old's likelihood of recidivism is, on average, higher than that of a similarly situated 50 or 60 year old.  And, for all I know, there may be a world of difference in terms of recidivism rates between a 16 year old and a 19 year old.

Then I tried to run a report. After playing with the query terms for a few minutes, I could see how this might provide an interesting idea for a future research project; beyond that, I didn't find DART very illuminating. First, on several occasions, I tried to come up with a report for a specific type of offense and offender (males, between the ages of 16-19, arrested in Brooklyn for sale of a controlled substance, released on bail, subsequently convicted etc etc), and ran into the problem that I had crafted a category that was too narrow and therefore failed to produce a report.   So, in order to generate a report, I needed to reduce specificity.  But of course, the broader the search terms became, the less information the "tool" provided.  

For example, thanks to DART, I now know that of the approximately 8,300 16-19 year olds arrested in Brooklyn in 2009, "47.2% were arrested for any crime within one year."  This handy graph also breaks down the info in terms of nonviolent and violent felonies.  What do we make of this information?  Does the data tell us something important about the police, or about the individuals who were arrested? 

And while we're at it, for whom is this "tool" useful?  The city's Criminal Justice Coordinator, John Feinblatt, advises:

“Prosecutors and defense attorneys can use facts about recidivism to assess plea and sentencing policies, and policy makers can use this tool to help allocate scarce criminal justice dollars where they are needed most.”  

Really?  I'm a big fan of data, and I'm all for using empirical analysis to guide policy, but right now, this looks a lot like a cutesy tool prone to manipulation and misinterpretation.  Frank Zimring,(who compliments the tool here because it improves the public's access to data) made the following comment to the Wall Street Journal:

"If you are asking for probation for your client, you can produce outcomes for your guy and create averages and compare it to others in that category," said Franklin Zimring, a law professor at the University of California-Berkeley, who was among a group of people asked by the city for preliminary feedback on the database. "If you're a prosecutor, you can use the same data, but obviously with a different spin." 

So if both sides can spin the data, what is its value?

A final point: as I noted above, the Bureau of Justice Statistics also maintains a database on recidivists. Like DART, the BJS database also maintains the five-year age groupings and the 40+ category, and BJS' data is based on a sampling of offenders released from prisons in 15 participating states in 1994, a full generation ago. According to the BJS website, a database containing updated information is on its way.  Were I a criminal defense attorney (or prosecutor, for that matter), I would watch very carefully for the updated BJS website, as its information may turn out to be far more illuminating than DART's pretty bar graphs.   



Posted by Miriam Baer on December 23, 2013 at 04:06 PM | Permalink | Comments (1) | TrackBack

Sunday, December 22, 2013

Green Bag “Exemplary Legal Writing 2013” Honorees

The Green Bag’s special board of advisers on good legal writing (which includes distinguished members from the state and federal judiciaries, private law firms, the news media, academia, and elsewhere) has selected the following works as exemplars of good legal writing from the year just passed. They will appear in the 2014 edition of the the Green Bag Almanac & Reader. (For the books, that means excerpts.) Congratulations to all.

Opinions for the Court

• Frank H. Easterbrook, Silverman v. Motorola Solutions, Inc., 2013 WL 4082893 (7th Cir. 2013)

• Susan Illston, In re National Security Letter, 930 F.Supp.2d 1064 (N.D. Cal. 2013)

• Brett Kavanaugh, Vann v. U.S. Department of the Interior, 701 F.3d 927 (D.C. Cir. 2012)

• Raymond Kethledge, Bennett v. State Farm Mutual Automobile Ins. Co., 731 F.3d 584 (6th Cir. 2013)

Concurrences, Dissents, Etc.

• Rosemary Barkett, U.S. v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012)

• Elena Kagan, American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013)

• Mark S. Massa, Indiana Gas Co. v. Indiana Finance Authority, 992 N.E.2d 678 (Ind. 2013)

• Milan D. Smith, Jr., Lane v. Facebook, Inc., 709 F.3d 791 (9th Cir. 2013)


• Randall Kennedy, For Discrimination: Race, Affirmative Action, and the Law (Pantheon Books 2013)

• Margaret Klaw, Keeping It Civil: The Case of the Pre-nup and the Porsche & Other True Accounts from the Files of a Family Lawyer (Algonquin Books 2013)

• Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer (Harvard University Press 2012)

Long Articles

• Vanessa Banni-Viñas, Correcting a Ballerina’s Story: The Truth Behind Makletzova v. Diaghileff, 53 American Journal of Legal History 353 (2013)

• John H. Langbein, The Disappearance of Civil Trial in the United States, 122 Yale Law Journal 522 (2012)

• Diane P. Wood, When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court, 100 California Law Review 1445 (2012)

News & Editorial

• Jess Bravin, In Mississippi, a Gray Area Between Black and White, Wall Street Journal, March 16, 2013 (updated March 28)

• Jack Chin, Getting Law Review Fans Out of the Closet: Liptak on Jacobs and Waxman, PrawfsBlawg, prawfsblawg.blogs.com, October 21, 2013

• Brandi Grissom, Trouble in Mind: How Should Criminals Who Are Mentally Ill Be Punished?, Texas Monthly, March 2013


• Stephen B. Kaplitt, Letter to Richard D. Trenk (June 17, 2013)

• David Keating, Letter to Senator Richard J. Durbin, Center for Competitive Politics (September 16, 2013)

• John G. Roberts, Jr., 2012 Year-End Report on the Federal Judiciary, Supreme Court of the United States, Public Information Office (December 31, 2012)

• Stephen E. Sachs, Jeffrey S. Bucholtz, and Daniel S. Epps, Brief of Professor Stephen E. Sachs as Amicus Curiae, Atlantic Marine Construction Co. v. U.S. District Court, 134 S.Ct. 568 (2013)

Posted by Ross Davies on December 22, 2013 at 10:21 AM | Permalink | Comments (0) | TrackBack

Friday, December 20, 2013

Rehnquist Weighs In on Law Reviews in Franks v. Delaware

I came across an early discussion of the role of law reviews which I had not seen before, so I pass it on. In Franks v. Delaware seven justices voted to allow challenges to searches based on false police affidavits; the Court noted that there was "widespread opposition to the flat nonimpeachment rule from the commentators,  from the American Law Institute in its Model Code of Pre-Arraignment Procedure, . . . , from the federal courts of appeals, and from state courts."  The court listed the positions of the courts in an appendix, and cited a dozen or so notes and articles.  The order of authority is surely interesting, as it puts student notes before circuit courts.

Justice Rehnquist dissented for himself and Chief Justice Burger.  They objected to the majority's use of scholarship: "The signed articles and student law review notes which the Court refers to in its opinion are not there, I trust, to be considered en bloc or by some process of counting without weighing. Presumably, to the extent that their reasoning commends itself to the courts which are committed to decide these questions, that reasoning will find its way into the opinions of those courts; to the extent that the reasoning does not so commend itself, the piece containing the reasoning does not weigh in the scales of decision simply because it appeared in a periodical devoted to the discussion of legal questions." 438 U.S. 154, 186-87 (1978).  Obviously, if the majority had agreed with this analysis, citing the judicial decisions would have been be sufficient.  I suppose the majority found it telling that no scholar came out the other way; one of the authors they relied on in support of finding police perjury reviewable was the late Professor Joseph Grano, who Erwin Chemerinsky recognized as  "one of the leading conservative acadmic voices in constitutional law and criminal procedure."    

Posted by Jack Chin on December 20, 2013 at 07:26 PM | Permalink | Comments (7) | TrackBack

Great news to share

Though I don't typically traffic in such information when it's done so ably by friends on other blogs, I'm delighted to announce (from the CDG airport) that two close friends of the Prawfs community were recently appointed to important decanal positions at major law schools. 

First, my former co-author and friend, Jennifer M. Collins, was selected to be the dean of the SMU Dedman School of Law in Dallas, TX. You can read more about it here.

Second, another friend, and fellow Canadian, Austen Parrish, was selected to be the new dean at Indiana - Bloomington's Maurer Law school. Austen had previously been interim dean at Southwestern and in an earlier part of our career, we had the chance to break bread in glorious Vancouver at UBC, along with Trevor Morrison. Trevor's already set the trail for BC-niks heading up important law schools, and you can see his sharp assesssment of Austen at the bottom of this law porn press release over here.

Posted by Administrators on December 20, 2013 at 03:35 AM in Blogging | Permalink | Comments (1) | TrackBack

Thursday, December 19, 2013

Pleading catch-22

This  recent Seventh Circuit case is mainly about substantive First Amendment/public-employee law, but it has a neat hidden pleading component. The plaintiff was a guidance counselor and girls' basketball coach at a high school outside Chicago; he was fired when he self-published a book on relationship advice titled "It's Her Fault" (the title kind of gives away the content). The Seventh Circuit affirmed a 12(b)(6) dismissal of his First Amendment claim; although his speech was on a matter of public concern (contra what the district court had held), he lost out in the Pickering balance because the school could reasonably believe he no longer could function effectively as a school counselor.

Here is where it gets Civ Pro-ish. The plaintiff apparently tried to make a detailed pleading; it quoted at length from the book and the written charges that the school board adopted in firing him and attached both the book and the charges as exhibits to the complaint. The court of appeals relied on these exhibits in affirming dismissal. The plaintff argued that a court only should perform a Pickering balance on a full record, and the court agreed that ordinarily Pickering is more appropriate after an opportunity for discovery. But in this case the court felt comfortable deciding on the complaint alone because it was so detailed. Everything needed for the analysis--the book and the board's stated reasons for the firing--were right there in the complaint. In other words, the plaintiff pled himself out of court, by including adverse allegations. Of course, had he provided less detail or not included those exhibits, the school board would have argued that there was not sufficient factual content to show that his speech was protected.

So what should a plaintiff do?

Posted by Howard Wasserman on December 19, 2013 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (4) | TrackBack

Wednesday, December 18, 2013

Edgy enough

Michael Steinberg, whose trial I have been blogging about for the last couple of weeks, was convicted today of conspiracy and several counts of securities fraud (ie, insider trading).  The jury had been out for only a day before it returned its verdict- apparently coming to a conclusion rather quickly given the length of the trial.  I have much to say on this, but will leave it for tomorrow and later days, as I am currently trying to work my way through a ton of exams.  

Meanwhile, I cannot help but wonder if this trial's outcome might change Mathew Martoma's mind and cause him to turn against his former boss and seek an eleventh hour cooperation agreement- if that's even possible, given the timing.  Jury selection in the Martoma trial is slated to begin January 6th.     

Posted by Miriam Baer on December 18, 2013 at 09:01 PM | Permalink | Comments (0) | TrackBack

Overperforming expectations

Via Paul Caron. I know the rankings are the root of all evil, but they remain the coin of the realm (at least for the moment). And the recognition for FIU is always welcome.

Posted by Howard Wasserman on December 18, 2013 at 10:12 AM in Howard Wasserman, Teaching Law | Permalink | Comments (4) | TrackBack

Monday, December 16, 2013

Green Bag to a Good Home

From page 1 of the forthcoming Autumn 2013 issue of the Green Bag:

The Green Bag (the whole enterprise, that is – journals, books, works of scholarly artistry, etc.) no longer has a home at the George Mason University School of Law.

Details of that parting – mostly comic and ironic (and a bit sad) – are not important. But two things must be said. First, we did not lose the support of GMU because the Green Bag or anyone associated with it did anything naughty (we were good citizens, but sometimes even good citizens and good friends part ways). Second, this episode should not be taken to indicate that GMU is anything other than a superb and strong school (it serves its students and the communities of which it is a part extremely well) and a fine place to work (one Green Bag editor is a longtime member of the GMU faculty, and proud of it). We are grateful for our years associated with GMU and we hope to maintain a cooperative relationship.

In any event, there is no need to worry. The Green Bag is not in desperate need of new digs, because its primary institutional home in recent months has been (and currently is and, we hope, will remain) the renowned and kind law firm O’Melveny & Myers LLP.

But it is important to us that our operations match our outlook – one foot in the world of law practice and one foot in the world of legal academia. The Green Bag is at its best when our influences and our most important resources – authors, advisers, collaborators (including readers, of course), and editors – come from both worlds. So, if you think your law school might be a good academic home for the Green Bag, please drop us a line at [email protected]bag.org.

Posted by Ross Davies on December 16, 2013 at 06:48 AM | Permalink | Comments (2) | TrackBack

Sunday, December 15, 2013

Learning the language of law

Law is a language. It involves a particular way of speaking and the use of certain phrases and terms, some often confusing or cumbersome, having arcane meanings and/or drawn from statutes and rules which themselves often are not well drafted. But it is the language we are stuck with and the language that they must use in the practice of law. That is a particular thing in class such as Civil Procedure and Evidence--"failure to state a claim upon which relief can be granted," "proof sufficient to support a finding," "meet the burden of production on the non-existence of the presumed fact" . . . it goes on. (In fairness, I'm sure people can find similar examples in their own specialties).

My question is how much should that language matter, both in class discussion and on the exam? How much precision should we demand of student answers when it comes to stating the legal standards and rules and important lingo. Is it enough that the student gives us the "gist" of the standard when we understand what they mean? Or should we demand that they be precise, especially when (as with my recently completed Evidence exam) they have the rules in front of them (in which case imprecision just shows unwillingness/inability to engage with text, which is separately problematic).

For example, I gave a question with a rebuttable presumption (rear-end collision is the rear driver's fault); the plaintiff offered evidence that a rear-end collision occurred, the defendant offered testimony that he was going along with the flow of traffic when the plaintiff stopped in the middle of the road for no reason, with no cars in front or around her. One student wrote the following: "Because this is a rebuttable presumption, the defendant could offer evidence to rebut the basic facts or the presumption; he did the latter." Now, I know what the student meant (I think) from the context of the sentence and she is correct, although she did not use the proper term. At the very least, she would look really uninformed if she said this in a brief or in open court.

So should she get full credit? Or should we insist that full credit comes not only from applying the concepts, but also from stating them precisely and accurately--from using the right language.

Posted by Howard Wasserman on December 15, 2013 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (14) | TrackBack

Friday, December 13, 2013

Lawyers and Nigerian princes

Amazing. The Disciplinary Board had argued before the Iowa Supreme Court that his conduct was "delusional, but not fraudulent"--he honestly believed he was going to get $ 18 million for his clients. He just did not do sufficient due diligence (including internet searches) before bringing clients in on the adventure. The Court suspended his license for one year, a less severe sanction than the Board had recommended.

Somehow, no doubt, law professors are to blame.

Posted by Howard Wasserman on December 13, 2013 at 06:42 AM in Howard Wasserman | Permalink | Comments (2) | TrackBack

Thursday, December 12, 2013

Prof. Niblett on Jeopardy

Via Paul's FB thread, I discovered yet another Canadian-ish law prof will be on Jeopardy. Coming to you Xmas Day.

Posted by Administrators on December 12, 2013 at 11:06 PM in Article Spotlight, Paul Horwitz | Permalink | Comments (0) | TrackBack

What's another billion (or two) between friends?

If Jamie Dimon's intention was to make 2013 the Year of Settling and Paying, then he's doing a fabulous job.  On the heels of a $13 billion dollar settlement relating to mortgage backed securities (including conduct engaged in by Bear Stearns and Washington Mutual employees), Dimon seems poised to agree to either a $1 or $2 Billion Deferred Prosecution Agreement (DPA) with the Department of Justice. (Is it me or is this starting to sound like Monopoly money?)

The agreement - and massive (can you still say that about a mere 1-2 billion?) penalty stem from the bank's alleged failure to alert American authorities regarding its employee's concerns that Bernard Madoff's investment advisory business was ... sending off "Oz-like signals."   Why would the bank fail to pass along these concerns?  Possibly because Madoff reportedly had done business with JP Morgan for two decades.  (Then again, so have I, if you count my hum-drum bank account).  Or perhaps the employee's concerns were discounted, or ignored, or forgotten.  There are lots of possibilities; perhaps we will learn what happened when the government and the bank announce their settlement agreement.  Or not. 

Under the Bank Secrecy Act, institutions such as JP Morgan must file "SAR's" or suspicious activity reports whenever they suspect a customer's account is being used to further criminal activity or includes funds obtained through criminal activity.  Had JP Morgan filed a SAR when it first suspected Madoff's "oz-like" returns, the SAR would have been received by the Financial Crimes Enforcement Network (FINCEN), which is an investigatory arm of the Department of Treasury.  In FINCEN's hands, the case that languished at the SEC might have been better developed by some of FINCEN's investigators. In other words, Madoff's scheme might have been caught and fewer people would have been hurt.     

Regardless of the actual penalty, some observers will surely lament the bank's avoidance of a corporate-wide criminal indictment, particularly if no individual prosecutions emerge from the government's investigation.

I'll leave my thoughts about the DPA process, which I have criticized elsewhere, for a separate post. However one might feel about DPA's and corporate criminal indictments in general, it may be, as Greg Gilchrist nicely suggests in this recent essay, that banks present a special case, warranting a regulatory response that implies "punishment" but is nevertheless based in civil and not criminal liability.  I have already voiced my own concerns regarding society's relative preference for punishment over regulation, but Gilchrist responds that at least in the banking context, we are far from the tipping point.  I don't know yet whether I agree with Greg's interesting paper, but I do know that by the end of this year, JP Morgan will have shelled out an awful lot of money in connection with a bevy of criminal and civil investigations.  If this hasn't already inspired a major change in practices (and the bank claims it has), Jamie Dimon isn't doing his job.  

Posted by Miriam Baer on December 12, 2013 at 05:13 PM | Permalink | Comments (1) | TrackBack

Wednesday, December 11, 2013

Catching up on my reading ....

...I am reminded of the need to keep abreast of the latest developments in experimental research in behavioral economics, as so nicely demonstrated by this article by Gregory Klass and Kathryn Zeiler, which came out this summer in the UCLA Law Review.  I had been aware of Zeiler & Charles Plott's previous experimental findings, but Klass and Zeiler's current paper encapsulates quite succinctly the problems with relying on behavioral theories that have been successfully challenged or revised since their first introduction to legal scholars.  

If you are wondering why I am looking at this paper now (since it first surfaced on SSRN back in February 2013), it's because I recently saw it on Concurring Opinions, whose links to certain law review tables of contents become quite useful as I ease back into scholarship mode.  Indeed, nowadays, I find myself scanning the table of contents more often than my SSRN feed, which spits out so many emails that I barely know what to do with them.  Am I alone in this category, or has SSRN become Too Big To Use?  

Posted by Miriam Baer on December 11, 2013 at 06:23 PM | Permalink | Comments (3) | TrackBack

JOTWELL: Walsh on Posner on Realist Judging

The new essay for JOTWELL's CourtsLaw comes from Kevin Walsh (Richmond), reviewing Richard Posner's Reflections on Judging (HUP 2013).

Posted by Howard Wasserman on December 11, 2013 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Tuesday, December 10, 2013

JP Morgan's Sons and Daughters

Back in August, JP Morgan received a subpoena from the SEC inquiring about its hiring practices in Hong Kong and China.  (Other banks have since received similar inquiries, according to this report). As reported back then, the government was investigating the bank's hiring of "princelings," the sons and daughters of Chinese government officials.   The story was that American banks were hiring government officials' family members as consultants with the hope that these well-connected children would feed the banks underwriting deals, although according to this article, the princelings' value had already dropped by the time the SEC's (and soon after DOJ's) investigation heated up.  

As others pointed out, hiring government family members who are otherwise qualified may be unseemly, but it doesn't necessarily violate the Foreign Corrupt Practices Act.  The bank would have run afoul of the statute, however, if it had corruptly hired said persons with the intent of securing an improper advantage from Chinese government officials.  For a nice discussion of these matters, see Mike Koehler's earlier discussion on his FCPA Professor blog here

As of this moment, JP Morgan has produced to government investigators some documents that sound at least somewhat damning.

On one hand, it seems the bank itself created a separate track for its "Sons and Daughters" hiring program, which was intended to prevent allegations of bribery under the Foreign Corrupt Practices Act by requiring more stringent controls on hiring.   But there appears to be this pesky spreadsheet that JP Morgan executives in China maintained, which appears to track JP Morgan's deals to some of its Chinese hires - including some of those "Sons and Daughters."  In other words, someone appeared to be keeping track of the "benefits" brought in by the children of government officials.  The NYT Dealbook reports that "sources" close to the bank contend that the spreadsheet was not intended to track deals to its Son and Daughters hires, but rather, "assess whether JPMorgan bankers, in hopes of securing full-time jobs for some interns in the program, had exaggerated the revenue received from state-owned companies."   Odd point of interest: this spreadsheet was known and discussed in the press back in August, but Dealbook brought it back to the fore in a December 7th report, when it also discussed some emails that JP Morgan executives had written (some of the more troubling emails - about a recent hire who likes to nap alot - do not involve the children of foreign officials and therefore should not trigger FCPA concerns).  

Ordinarily, I might say, "hey, this sounds like a continuing headache for JP Morgan."  But then my more optimistic side kicks in.  (Yes friends, I actually have one).  Perhaps the spreadsheet is not as bad as it sounds, and emails can be reported out of context.  And besides, even if this investigation does result in some fine, it won't come close to the size of JP Morgan's previous penalty.    

Posted by Miriam Baer on December 10, 2013 at 08:04 PM | Permalink | Comments (2) | TrackBack

Limiting Younger

Forgive the excessive posting today; there is a lot happening today.

SCOTUS today unanimously decided Spring Communications v. Jacobs, placing significant limits on the scope of Younger abstention. Scott Dodson has a good analysis at SCOTUSBlog. The Court held that Younger only applies in three categories of cases: 1) criminal cases; 2) certain civil cases, typically where the state has initiated enforcement efforts against a private person; and 3) certain civil proceedings, where the challenge touches on the state's ability to perform its judicial functions (implicitly, it seems to me, where the challenge is to the source of authority for that function, such as  the law imposing an appellate bond requirement). The decision eliminates the analytical distinction drawn in many circuits between coercive and remedial proceedings. And it makes clear that Younger does not reach simple parallel proceedings between private parties.

Other than rendering obsolete some of the Younger discussion in my book, this decision is good news in clarifying and narrowing Younger's particular application. It hopefully will stop what I regard as Younger Creep--where district court either used Younger to abstain inappropriately or cited it as the basis for abstaining instead of some more appropriate abstention doctrine.

But it might be interesting to consider two recent cases in which the federal court abstained on Younger grounds and how they should play out under the new analysis.

First is Tyler v. Commonwealth, where the district court abstained in deference to some potential future family-law proceeding between the girl and the convicted rapist. As a purely private proceeding, that would no longer should be subject to Younger. There also was the underlying state criminal case to which the girl was not a party, but she was not actually seeking to enjoin that proceeding.

Second is SKS Assocs. v. Dart, a 2010 case out of the Seventh Circuit that I use as a problem in the book and in class. The court affirmed abstention from a challenge to the constitutionality of a state court order issued in several pending eviction actions. This is not a criminal proceeding or a civil proceeding involving state enforcement efforts. And the challenge was not to the statutory source of the order, but to the order itself, so this should not fit within the third category. In class, I suggested that Rooker-Feldman was the proper basis here.

In both cases, I would argue that Rooker-Feldman is the appropriate basis for the court to decline to hear the case. Even if I am wrong about that, Sprint should make clear that Younger is not.

Posted by Howard Wasserman on December 10, 2013 at 04:01 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (2) | TrackBack

College football and the Brandenburg Concerto

[Update: Reports are stating that police have identified the man in the picture and want to interview him, in part to find out how (and if) he caused the events in East Lansing.]

Students at Michigan State University celebrated their football team's Big Ten championship last weekend the way many sports fans do: Setting things on fire. Police responded to a large civil disturbance and reportedly responded to at least 57 fires throughout the city. In many cases, the favored object to burn was a couch.

So what, you ask? Well, because of the guy pictured at right, who attended the Big 10 Championship game in Indianapolis sporting that sign. Ku-xlarge According to the East Lansing Police Department Facebook page, they are looking for information on his identity. And rewards of up to $20,000 are being offered for information on the overall disturbance.

So the obvious question: Could this guy be charged with anything for holding up that sign? Could any prosecution satisfy  Brandenburg v. Ohio and the requirement that the  lawless action in East Lansing be imminent and likely to arise from his holding up a sign from a football stadium in Indianapolis?

Posted by Howard Wasserman on December 10, 2013 at 10:44 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (11) | TrackBack

SCOTUSBlog: Argument in Ray Haluch Gravel

SCOTUSBlog has my recap of yesterday's oral argument in Ray Haluch Gravel Corp. v. Central Pension Fund.

Posted by Howard Wasserman on December 10, 2013 at 10:29 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack

2014 Conference on Christian Legal Thought--Public Engagement With Law and Religion: A Conference in Honor of Jean Bethke Elshtain

I'm pleased to announce the 2014 Conference on Christian Legal Thought, sponsored by the Lumen Christi Institute at the University of Chicago and the Law Professors Christian Fellowship. The conference occurs in conjunction with the annual AALS meeting, which is being held in Manhattan this year. This year's conference explores the life and thought of Professor Jean Bethke Elshtain and the theme of public engagement with law and religion. The subject should be of broad interest in light of the great ferment in the field these days.

The schedule is below. Please register here

Friday, January 3, 2014, 12:00 pm to 6:00 pm

The University Club

One West 54th Street, New York, NY 10019

Conference Topic: Public Engagement With Law and Religion: A Conference in Honor of Jean Bethke Elshtain

Noon: Registration, Luncheon, and Opening Remarks

1:15 pm – 2:45 pm: Session One. Public Engagement With Law and Religion: The Thought of Jean Bethke Elshtain

Chair: Zachary R. Calo (Valparaiso University School of Law)

* Thomas C. Berg (University of St. Thomas School of Law)

* Eric Gregory (Princeton University, Department of Religion)

* Charles Mathewes (University of Virginia, Department of Religious Studies)

2:45 pm – 3:00 pm: Coffee Break

3:00 pm – 4:30 pm. Session Two. Public Engagement With Law and Religion: Journalistic Perspectives

Chair: Marc O. DeGirolami (St. John's University School of Law)

* Matthew Boudway (Associate Editor, Commonweal)

* Susannah Meadows (Contributor, New York Times)

* Rusty R. Reno (Editor, First Things)

4:45 PM – 5:15 pm: Vespers

5:15 pm: Reception

Posted by Marc DeGirolami on December 10, 2013 at 09:19 AM | Permalink | Comments (0) | TrackBack

Monday, December 09, 2013

Prawfsfest! XI is about to start. Big thanks to Pepperdine and Michael Helfand

I'm so excited to announce that Prawfsfest! XI is about to start this morning. We used to run two of these a year, and then took a hiatus, but thanks to the efforts of Michael Helfand, we are reviving it and I'm delighted to publicly trumpet and thank our wonderful hosts in Malibu. We've been hearing lots of apologies by people about the weather, which is unseasonably cold, but unless these apologies are statements of regretful agency as opposed to "I'm sorry you're suffering" then I'm pretty sure I don't want to hear them anymore:-)

In any event, here's the schedule for today and tomorrow's program.


Prawfsfest XI | December 8th – 10th, 2013
24255 Pacific Coast Highway, Malibu, CA  90263

Monday, December 9

8:30 AM            Gather in Villa Graziadio Executive Center lobby to drive to Law School

8:40 AM            Breakfast at Law School | Seminar Room 1

9:00 AM            Jack Chin (UC Davis): “Unconstitutional, But Reasonable?  Race, Reasonableness, and Considering Whren’s Dicta”

10:00 AM          Garrick Pursley (Florida State): “The Thin Constitutional Structure”

11:00 AM          Break & Refreshments

11:15 AM          Victoria Schwartz (Pepperdine): “Analogizing Privacy?”

*NOTE:          Participants can choose one of the two options below for the lunch break:

12:15 PM           Lunch on-site | Dean’s Conference Room or

12:30 PM           Faculty Workshop Presentation by Dan Markel | Seminar Room 4

2:00 PM             Eric Miller (Loyola LA): “Permissions and Discretions”

3:00 PM             Break & Refreshments

3:15 PM             Robin Effron (Brooklyn): “Ex-Ante Discovery”

4:15 PM             Return to Villa Graziadio Executive Center for spare time

7:00 PM             Gather in Villa Graziadio Executive Center lobby to drive to dinner

7:30 PM             Drive to Dinner at Duke’s Malibu | 21150 Pacific Coast Highway, Malibu | 310.317.0777

Tuesday, December 10

8:45 AM            Gather in Grazadio Executive Center lobby to drive to Law School

9:00 AM            Breakfast at Law School | Seminar Room 1

9:15 AM            David Han (Pepperdine): “Flexible Remedies in Speech-Tort Jurisprudence”

10:15 AM          Margaret Ryznar (Indiana): “Child Support Obligations of High-Income Parents”

11:15 AM          Break & Refreshments

11:30 AM           Dan Markel (Florida State): “Luck or Law: The Constitutional Remedy for the Right Against Indeterminate Sentencing”

12:30 PM           Lunch on-site | Dean’s Conference Room

2:00 PM             Michael Helfand (Pepperdine): “Enforcing Co-Religionist Commerce”

3:00 PM             Refreshments and Conclusion


Posted by Administrators on December 9, 2013 at 10:37 AM in Article Spotlight, Blogging, Life of Law Schools | Permalink | Comments (0) | TrackBack

Saturday, December 07, 2013

A Dell Cooperator Does Well (and Probably Some Good too)

Barry Berke's cross-examination of Jon Horvath, the key witness in the Michael Steinberg trial, continued on Thursday and Friday and is expected to finish on Monday.  Not surprisingly, Horvath confirmed that he never explicitly told Steinberg that he was passing him "illegal information."   We also learned that Steinberg advised Horvath that SAC's walls "have ears" and therefore Horvath should "be wary" of other SAC employees who might poach trading ideas.  (Side note: not a particularly cooperative environment, eh?). The implication one might draw is that Steinberg's directive to keep information "quiet" may have been aimed at preserving his own advantage vis a vis other SAC managers - ie, he didn't want other SAC traders to steal his (or his group's) ideas.  Horvath's direct testimony, by contrast, had implied that Steinberg desired secrecy because Steinberg knew that he was dealing with material nonpublic information and wanted to maintain his advantage vis a vis the market. Which interpretation will the jury embrace?  


Meanwhile, a different cooperator, Daniel Devore, was sentenced on Thursday to "time served," which in his case effectively meant no prison term. Devore, who worked for Dell and was the original leak of some of Horvath's information, has been cooperating with the government since at least 2010 (here is an unsigned copy of his cooperation agreement, for those who are interested).   He apparently has played a significant role in assisting the government in its investigation and prosecution of insider trading within hedge funds. 

Usually, the SDNY does not schedule its cooperators for sentencing until the cooperators have completed their cooperation by testifying in all relevant trials.  As the government reportedly advised, it does not expect to call Devore to testify against Steinberg, although it included Devore on its list of potential witnesses.  Why would the government elect not to call Devore?  Presumably because Devore's testimony would only magnify the lengthy distance between Steinberg and the initial leak - which is hardly helpful if the jury has any doubts about Steinberg's state of mind. 

Here's what interests me:

When it comes to federal drug enforcement, we tend to target the wholesale sellers of narcotics for our harshest punishments and recruit buyers and middlemen as cooperating witnesses to help us in that endeavor. So, at least in an ideal world, buyers and middlemen cooperate and receive relatively lenient sentences, and sellers and distributors go to jail for a long time. (Yes, I know there are those who say the entire enterprise is flawed, and I share some of those concerns, but bear with me).  

When it comes to insider trading enforcement (at least lately), we seem to focus our energies on identifying and punishing the suspected "buyers" or "users" of information (ie, Raj Rajaratnam, Michael Steinberg to a lesser extent, and if anyone ever makes a case against him, Steve Cohen), and we recruit the sellers of said  information -- and the middlemen -- as cooperating witnesses, whom we later reward with lenient sentences. Accordingly, insider trading's punitive landscape turns narcotics enforcement upside down: Sellers of information cooperate, while users and buyers go to jail.  Can this "mirror image" be justified by familiar theories of deterrence or retribution?  Let's tackle that question next week.   


Posted by Miriam Baer on December 7, 2013 at 11:15 PM | Permalink | Comments (3) | TrackBack

West on student censorship

Nice Slate essay by Sonja West (Georgia) on student speech, arguing that censoring students pervsersely teaches them that censorship is a good and acceptable idea, sort of the opposite of what we want future citizens and leaders to learn. She mentions that SCOTUS is considering the cert petition in the  "I [heart] boobies] case from the Third Circuit, which, given the Court's history with student speech, may not be a good thing. Finally, she highlights the current life of Mary Beth Tinker, who retired from nursing recently to become a student-speech-rights advocate through the Tinker Tour with the Student Press Law Center.

Posted by Howard Wasserman on December 7, 2013 at 08:36 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1) | TrackBack

Friday, December 06, 2013

Free speech for me but not for thee (until you're older)

I was working from home this afternoon, with Muhammad Ali's Greatest Fight (a generally cheesy docudrama about the inside-SCOTUS workings leading to the decision in Clay v. United States) on for background noise. My daughter (who will be 8 in 3 weeks) walked into the room right at the beginning of the reenactment of oral argument in Cohen v. California, as Melville Nimmer (played by Bob Balaban) stepped to the podium and the Chief (played by Frank Langella) gave his famous warning about the Court's familiarity with the facts of the case.

I quickly hit the pause button.

Posted by Howard Wasserman on December 6, 2013 at 03:14 PM in First Amendment, Howard Wasserman | Permalink | Comments (0) | TrackBack

The inanity of balanced religious symbols

IMG_1044This is the annual "holiday" display in the town right next to my neighborhood in Miami, which I drive through on the way to work every day.  As far as I can tell, it went up sometime Thursday afternoon or evening (I did not notice it on my way to work Thursday morning, although it's kind of hard to miss).

The problem this year, of course, is that Chanukah ended Thursday evening, before the display was fully in place and before its official "opening" that occurs this weekend. Now, since Chanukah only lasts eight nights, it is inevitable that the symbol will be up for longer than the holiday itself every year. But it would be nice if the symbol could be up for at least some portion of the holiday. Otherwise, it's a bit like dying the river green on March 18.

Worse, I am pretty confident that no one in charge realizes this fact or understands the ridiculousness of having a Menorah on display for a full month after the holiday is over. If they were serious about marking the holiday, they might have shifted the timing of the display this year. Of course, having a Menorah up without a Christmas tree probably would have violated the Establishment Clause. And vice versa, which is why the Menorah is not coming down. Instead we will, for the next month, have a religious symbol (and make no mistake,  Justices, a Menorah is purely religious) on display with no connection to the holiday it is supposed to mark. [Ed: Had the city moved up the display, the other likely effect would have been total confusion]

By the way, this is not meant to be a rant against official public displays of religious symbols. It's more to push the idea that when government tries to do religion in a way that does not establish religion, it inevitably gets it wrong, sometimes in a way as to be somewhat offensive,. And especially when it's a minority religion. So perhaps they should not bother.

Posted by Howard Wasserman on December 6, 2013 at 11:09 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (15) | TrackBack

Mandate-ory Weekend Reading

I'm not offering up all the links here, but those interested in the contraceptive mandate cases should definitely check out:

1) The extensive series of posts Eugene Volokh has put up at the VC this week canvassing most if not all of the issues and angles in the cases.

2) Nelson Tebbe and Micah Schwartzman's arguments on Slate and Balkinization that accommodating the claimants here would violate the Establishment Clause.

3) Marc DeGirolami's post on the Center for Law and Religion Forum's website disagreeing with Nelson and Micah. 

Posted by Paul Horwitz on December 6, 2013 at 09:50 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Thursday, December 05, 2013

RFRA, HHS, and Hobby Lobby

I have a short opinion piece in today's Los Angeles Times about the Hobby Lobby case, which the Court has agreed to hear and which involves a RFRA challenge by a for-profit business to the HHS contraception-coverage mandate.  (Apologies for the piece's somewhat overwrought headline, which I didn't write!).  My basic point is this:

The Religious Freedom Restoration Act reaffirmed an idea that is deeply rooted in America's history and traditions — namely, that politics and policy should respect and, whenever possible, make room for religious commitments and conscientious objections. True, religious liberty is not absolute, and, in a pluralistic society like ours, not all requests for exemptions and accommodations can, or should, be granted. Some religious liberty lawsuits will, and should, fail, but not simply because they involve what happens at work on Monday and not what happens in services on the Sabbath.

I should note that I do not deal in the piece with the argument -- pressed eloquently (natch) in this Slate essay by Nelson Tebbe and Micah Schwartzman -- that it would violate the Establishment Clause to accommodate, under RFRA, an employer like Hobby Lobby.  I do not agree that it would, in part for reasons set out by Eugene Volokh here.

Posted by Rick Garnett on December 5, 2013 at 11:58 AM in Rick Garnett | Permalink | Comments (0) | TrackBack

Interested in Developing As a Legal Scholar? (A note from Prof Chris Lund)

At the January 2014 AALS meeting in New York, the Section on New Law Professors is set to host a panel entitled, “Developing as a Legal Scholar: Thoughts for New Law Professors.”  We’ve put together an impressive group of scholars—Jennifer Arlen (NYU), Sarah Cleveland (Columbia), Doug Laycock (Virginia), and Angela Onwuachi-Willig(Iowa)—who will join together for a roundtable discussion of how they became so awesome.  They will focus on matters of vital importance to our membership (i.e., new law professors).  Topics will include how they weigh the various components of their jobs, how they balance work and family commitments, how they evaluate scholarship both within and outside their fields, and how they decide on which scholarly projects to pursue.  

If you’re interested—and why wouldn’t you be interested?—please come.  The panel is Saturday, January 4th, 2014, running from 4:00 PM to 5:45 PM.  Put it on your calendar.

But here’s something else.  The Section wants input from Prawfsblawg readers!  You all probably have questions about growing as a legal scholar that you’d like the panelists to answer.  Put them in the comments section to this post.  During the discussion and during the Q&A, I’ll find ways of slipping in your questions (only the good ones, of course, but I have a broad notion of “good”).


Chris Lund

(Chair, Section on New Law Professors)

Here, btw, is the full panel description:

Saturday, January 4th, 2014

4:00 - 5:45 PM


Developing as a Legal Scholar: Thoughts for New Law Professors

Moderator: Christopher C. Lund, Wayne State University Law School

Speakers: Jennifer H. Arlen, New York University School of Law

Sarah H. Cleveland, Columbia University School of Law

Douglas Laycock, University of Virginia School of Law

Angela Onwuachi-Willig, University of Iowa Law School


This panel brings together a number of prominent academics for a roundtable discussion of how they developed into legal scholars. With an eye toward aiding law professors new to the academy, the panelists will discuss things like how they weigh the various components of their jobs, how they balance work and family commitments, how they evaluate scholarship both within and outside their fields, and how they decide on scholarly projects to pursue.



Posted by Administrators on December 5, 2013 at 11:08 AM in Blogging, Life of Law Schools | Permalink | Comments (6) | TrackBack

Wednesday, December 04, 2013

What is "edgy" information?

Michael Steinberg, a former portfolio manager at SAC, is currently on trial for engaging in insider trading. In a superseding indictment, the US Attorney's Office for the Southern District of New York has charged that Steinberg traded on material nonpublic information regarding Dell and Nvidia, and that he obtained this information from his employee, Jon Horvath.  Since there is no question that Steinberg/SAC actually traded in Dell and Nvidia, the major question for the jury will be Steinberg's state of mind: did he know (or possibly, have reason to know - more on that later) that Horvath was feeding him illegally obtained information?

Based on the testimony of the prosecution's star witness, Jon Horvath, the answer seems to be yes. Horvath - who is testifying pursuant to a cooperation agreement (see my thoughts here on how cooperation can ultimately undermine deterrence in the long run, despite all of its obvious benefits) testified at trial last week that Steinberg indicated during a meeting in 2007 that he wanted Horvath to provide "edgy, proprietary" information.  Horvath concluded that this meant "nonpublic" and illegally obtained information, but since this is Horvath's retelling of a conversation (and since Horvath never explicitly confirmed his own interpretation with Steinberg - because who in his right mind would?), that presumably leaves Steinberg's attorney, Barry Berke, some room to maneuver.  

Berke began his cross-examination yesterday, and according to this morning's news, Berke may have drawn a little blood by demonstrating problems with Horvath's story.  For example, it turns out that Horvath may have already been interested in securing "proprietary" information before he ever spoke to Steinberg.  Apparently Horvath heard exhortations to obtain such information as early as his first day of work at SAC - as he received emails and SAC memos advising him, in effect, to ask himself "what do I have that is proprietary?"  (Horvath helpfully pasted this reminder into a diary he kept for himself, called "Jon's trading rules" - because he worried he might otherwise forget?)  None of this looks particularly good for SAC, but SAC has already entered a guilty plea and has agreed to pay $1.2 billion and terminate its business managing outsiders' money.  

For a skilled defense lawyer like Berke, Horvath's memory lapse (he seemed to admit on cross that he can't quite remember when he had his "edgy and proprietary" convo with Steinberg) is helpful because it undercuts the idea that it was primarily Steinberg pushing Horvath to get this information, and at least suggests that Horvath may have embellished his direct testimony.  Does it actually absolve Steinberg, however?  I have a hard time believing so in light of some of the emails and texts introduced so far at trial (which, collectively, appear more problematic than exhortations to be "edgy"), but let's see what else surfaces. 


Posted by Miriam Baer on December 4, 2013 at 01:08 PM | Permalink | Comments (2) | TrackBack

Signing Off

It's been great to be back on Prawfs.  Thanks, as always, to Dan for creating this community, and to everyone else for making it what it is.  Study hard, grade fairly, and enjoy the break!  And if you're traveling, be safe and treasure those frequent flyer miles you're racking up. 

Posted by Bill Araiza on December 4, 2013 at 08:55 AM | Permalink | Comments (0) | TrackBack

Monday, December 02, 2013

Happy to be here!

Hi there Prawf readers,

As always, it is nice to return to the Prawfs fold.  As some of you may know, my interests lie in the intersection of criminal and corporate law.  I teach Criminal Law, Criminal Procedure, Corporations, and a White Collar Crime seminar.  I write about corporate compliance and what might generally be referred to as criminal law and economics.   Recently, I have become interested in the connection between fraud and two overlapping topics, "temporal inconsistency" and the study of "willpower lapses."  Over the years, several scholars, most notably Dan's colleague at FSU, Manuel Utset, have asked: what implications does temporal inconsistency have for criminal law enforcement and punishment?  How should our understanding of temporal inconsistency alter the mix of criminal and civil statutes, regulation and enforcement activity that we rely upon to reduce socially undesirable conduct? Recently, I along with several other scholars had the great opportunity to offer some thoughts on this topic in comments that the Virginia Journal of Criminal Law solicited for a volume featuring Utset's work.  After completing my own contribution, I decided to write a separate article exploring temporal inconsistency's implications for the corporation's internal compliance function. That paper, Confronting the Two Faces of Corporate Fraud, will appear in the Florida Law Review in early 2014.  I'll post and talk about the paper later this month. 

Meanwhile, in addition to writing my exam, winding down my classes (last week of teaching) and grading, I plan to blog this month on major developments in the white collar crime world.  To that end, it is impossible not to be fascinated by Michael Steinberg's insider trading trial, which seems to be moving along smoothly (at least from the prosecution's perspective) for now.  More on that tomorrow - I've got to head home now and light some candles.  Happy holidays! 

Posted by Miriam Baer on December 2, 2013 at 06:20 PM in Blogging, Corporate, Criminal Law | Permalink | Comments (0) | TrackBack

SCOTUSBlog: Attorney's Fees and Final Judgments

I have a new SCOTUSBlog preview on next Monday's argument in Ray Haluch Gravel Co. v. Central Pension Fund, which considers whether a district court judgment that leaves contractual attorney's fees unresolved can be a final and appealable judgment for purposes of § 1291 and Federal Rule of Appellate Procedure 4.

Posted by Howard Wasserman on December 2, 2013 at 04:32 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Rotations and Sundry

I've been delinquent on many things of late, but let me just pop in for a moment to:

a) wish everyone a happy Chanukah and belated warm wishes for Thanksgiving

b) welcome Miriam Baer from Brooklyn Law School, who will be visiting us here at Prawfs for the next month (at least). Miriam's been a regular guest here, and I'm delighted to publicly congratulate her and fellow Prawfs guest, Robin Effron, on being voted tenure by her colleagues recently--knowing them both well, I can say that the achievement was both richly deserved and overdetermined;

c) welcome back Bill Araiza and Darren Rosenblum who joined us in November and who will linger for a while, I hope;

d) thank our friends at Pepperdine (particularly Michael Helfand) for hosting the upcoming Prawfsfest!, which is being revived after a year hiatus; 

e) signal that, in deference to longstanding tradition, there will be a AALS happy hour and I'll share information as it is acquired; and ...

f) inform readers that I'll be putting the schedule for guest bloggers together over the coming weeks and if you're a prawf -- or wish to recommend someone you know (who is a prawf ) -- and would like to come do a month long stint between January and June 2014, you should let me know at your soonest convenience. Thanks!

Happy Monday.



Posted by Administrators on December 2, 2013 at 04:08 PM in Blogging | Permalink | Comments (0) | TrackBack