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The transcript in United States v. Woods is here. The transcript in Atlantic Marine Construction Co. v. United States District Court is here. In association with Bloomberg Law
The transcript in United States v. Woods is here. The transcript in Atlantic Marine Construction Co. v. United States District Court is here. In association with Bloomberg Law
about 4 hours ago
(Todd Zywicki) A couple of weeks ago I posted on an exchange between George Leef and Joshua Silverstein on the wisdom of grade inflation in law school. They’ve continued the debate, most recently on the pages of the Arkansas Democr...
(Todd Zywicki) A couple of weeks ago I posted on an exchange between George Leef and Joshua Silverstein on the wisdom of grade inflation in law school. They’ve continued the debate, most recently on the pages of the Arkansas Democrat-Gazette.  Josh’s column is here and George’s is here.
about 4 hours ago
I'm pleased to announce that my book, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment, is now available in paperback.During the next few months, I hope to post some reflections...
I'm pleased to announce that my book, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment, is now available in paperback.During the next few months, I hope to post some reflections here on critical reactions to the book and, more broadly, on current trends in moral psychology, which in recent years has become one of the most dynamic and influential areas of research in the cognitive and brain sciences, broadly construed. I also expect to discuss some of the implications of this new research for moral philosophy, jurisprudence, legal theory, and public policy.A description of the book and three editorial reviews are given below:AbstractIs the science of moral cognition usefully modeled on aspects of Universal Grammar? Are human beings born with an innate "moral grammar" that causes them to analyze human action in terms of its moral structure, with just as little awareness as they analyze human speech in terms of its grammatical structure? Questions like these have been at the forefront of moral psychology ever since John Mikhail revived them in his influential work on the linguistic analogy and its implications for jurisprudence and moral theory. In this seminal book, Mikhail offers a careful and sustained analysis of the moral grammar hypothesis, showing how some of John Rawls' original ideas about the linguistic analogy, together with famous thought experiments like the trolley problem, can be used to improve our understanding of moral and legal judgment. The book will be of interest to philosophers, cognitive scientists, legal scholars, and other researchers in the interdisciplinary field of moral psychology.Reviews "Judicious, carefully executed, and deeply informed, this valuable study builds upon the early work of John Rawls, including his now-classic Theory of Justice, identifying its core principles, persuasively defending them against critics, deepening them conceptually and developing rich empirical foundations. It thereby provides the outlines of a naturalistic theory of moral judgment and moral cognition, which may well be a common human possession. One conclusion with broad consequences is that moral cognition crucially relies on the generation of complex mental representations of actions and their components. Mikhail's enterprise resurrects fundamental themes of traditional moral philosophy and Enlightenment rationalism, while showing how they can be cast as empirical science with far-reaching implications for political, social, and legal theory. It is a most impressive contribution." --Noam Chomsky"John Mikhail's Elements of Moral Cognition: Rawls Linguistic Analogy And The Cognitive Science of Moral Judgment carefully and convincingly explains John Rawls' remarks in his Theory of Justice about a possible analogy between linguistics and moral theory, showing that most commentators have mischaracterized these remarks and have therefore misunderstood important aspects of Rawls' early writings. (This is the best account I have read of Rawls.) In addition Mikhail takes the linguistic analogy more seriously than other researchers and develops the beginnings of a kind of moral grammar that is somewhat analogous to the grammar of a language. The grammar he envisions has rules characterizing more or less complex actions, rules that derive partly from Alvin Goldman's Theory of Action and uses concepts taken from common law. He also speculates on the implications of the possibility that a moral grammar of this sort might account for aspects of ordinary moral judgments, comparing morality with language. I believe that Mikhail's current work in this area as reported in his book is the most important contemporary development in moral theory." --Gilbert Harman, Stuart Professor of Philosophy, Princeton University"Finally, a book that compares our current knowledge of human morality against the idea of an inborn r
about 6 hours ago
Allen Ferrell is the Greenfield Professor of Securities Law at Harvard Law School. The specter of Bernie Madoff hovered over oral arguments Monday.  This was appropriate to the occasion, as the Court was preoccupied with metaphysics:  Wh...
Allen Ferrell is the Greenfield Professor of Securities Law at Harvard Law School. The specter of Bernie Madoff hovered over oral arguments Monday.  This was appropriate to the occasion, as the Court was preoccupied with metaphysics:  What does it mean for a misrepresentation to be “in connection with” a purchase or sale?  The question that came up repeatedly was essentially, whether the lawyers arguing on both sides “agree that Madoff committed Rule 10b-5 securities fraud when he represented that he was purchasing securities on behalf of investors when in fact he purchased nothing.”  According to at least one reading of the plaintiffs’ allegations, Stanford Investment Bank arguably acted like Madoff.  The bank falsely represented to investors that they were buying an instrument (certificates of deposit) that were in some sense backed by securities — securities that did not exist (like Madoff’s securities purchases that never happened).  The answer to this question is critical because if the answer is yes – Madoff did commit Rule 10b-5 securities fraud – and, yes – the alleged facts here are analogous to the Madoff situation – then it follows that the Securities Litigation Uniform Standards Act (SLUSA) precludes the state actions. Recall that SLUSA uses the same “in connection with” language that Section 10b does. To be sure, there were some counters to the Madoff trap set for the plaintiffs (respondents at the Court) (besides the unpalatable argument that Madoff did not commit Rule 10b-5 securities fraud).  To this end, the plaintiffs proposed several distinctions: (1) Stanford Investment Bank did not represent that the certificates of deposit were backed in some sense by the securities it claimed it had (in part, because the certificates of deposit promised a fixed return rather than a return contingent on the value of the securities); (2) Stanford Investment Bank was not a broker-dealer but a bank; (3) the misrepresentation does not have a negative effect on public confidence in the markets in the way that Madoff-type fraud does; and (4) there was no purchase (or promised/represented purchase) by the plaintiffs of a “covered security” – they purchased a certificate of deposit, which everyone agrees is not a “covered security.”  Whether these distinctions are sufficient to distinguish this case from the Madoff situation is the question. The fourth distinction seemed to garner the most interest from the Justices. The defendants (the petitioners before the Court) attempt to counter this distinction by arguing that in effect the plaintiffs, by virtue of Stanford International Bank’s misrepresentation, thought they were buying exposure (or perhaps even an interest) in the covered securities – and in this way one is led back to the merits of the first distinction.  Justice Scalia went even beyond this fourth distinction, suggesting that there must be an actual purchase or sale (not just a representation of a purchase that is in reality nonexistent) for the “in connection with” a purchase or sale language to be satisfied.  After all, Justice Scalia asked rhetorically, does the statute say “promised purchase”?  But this position must face its own Madoff question: suppose a future Madoff promises to invest clients’ money in securities but just embezzles the money?  There is no actual purchase or sale of a security in this scenario. Does that mean there is no 10b-5 securities fraud in this situation?  And note that there would be 10b-5 securities fraud if our future Madoff did go to the bother of purchasing at least some securities (just one?).  Maybe our future Madoff should go whole hog in his fraudulent enterprise so as to make sure he doesn’t engage in any purchases or sales whatsoever.  Unlike some hypotheticals, this fraud scenario is not just a possibility but unfortunately a certainty. But against the onslaught of the Madoff question, the defendants faced their own awkward question, albeit one without the same emotional
about 7 hours ago
Forbes has released its ranking of law school on employment placement and salaries. I am happy to report that George Washington has placed within top ten schools. The dip in the legal market has affected applications at top schools but o...
Forbes has released its ranking of law school on employment placement and salaries. I am happy to report that George Washington has placed within top ten schools. The dip in the legal market has affected applications at top schools but overall the impact is felt more severely at the lower ranked law schools. While legal education remains expensive, it remains a good investment for many students. The problem occurs at law schools with low bar passage rates and employment placement. We previously discussed how some of the lowest ranked schools report the highest levels of debt for students. There are some law schools which have dubious academic programs and even more dubious claims of placement. Frankly, some paring of law schools would be a benefit in this economic downturn as would more demanding certification standards by the American Bar Association. It is important to emphasize that I do not subscribe to the ranking of law school on placement figures or treating law school as merely a trade school needed to secure high-paying jobs. I have opposed the self-destructive efforts of some professors (and President Obama) to strip down law schools to a two-year program to crank out more lawyers with less education. Despite the dislike for lawyers reflected in jokes and commentary, they play a critical role in our society and our law students are building on a long and proud legacy. This is a graduate school that sits at the junction of philosophy, economics, history, and public service. A J.D. degree offers more than a meal ticket. However, given the large investment of our students, it is good to see these figures. At Columbia Law School, the price of a three-year J.D. is now nearly $250,000. Only 56.2% of 2012 grads had found full employment at the time of reporting to the ABA. That percentage again is a bit deceiving since it is much higher as you move down the rankings in laws school as a general matter. The unemployment rate for new lawyers ticked up to 10.6% from 9.2% in the prior year. Here is the ranking: 1. Columbia Law School Percent of grads employed 9 months out: 99% Median starting salary: $160,000 2. University of Chicago Law School Percent of grads employed 9 months out: 99% Median starting salary: $160,000 3. University of Pennsylvania Law School Percent of grads employed 9 months out: 98% Median starting salary: $160,000 4. Harvard Law School Percent of grads employed 9 months out: 96% Median starting salary: $160,000 5. New York University School of Law Percent of grads employed 9 months out: 97% Median starting salary: $160,000 6. University of California at Berkeley School of Law Percent of grads employed 9 months out: 96% Median starting salary: $160,000 7. Northwestern University School of Law Percent of grads employed 9 months out: 91% Median starting salary: $160,000 8. Georgetown University Law Center Percent of grads employed 9 months out: 92% Median starting salary: $160,000 9. The George Washington University Law School Percent of grads employed 9 months out: 95% Median starting salary: $137,000 10. University of Southern California Gould School of Law Percent of grads employed 9 months out: 86% Median starting salary: $145,000
about 8 hours ago
Even at the level of the U.S. Supreme Court, sometimes oral argument does little to clarify.  That seemed to be the case yesterday in Burt v. Titlow, which I previewed on Monday as a “messy” case presenting a disputed, unsettled, and inc...
Even at the level of the U.S. Supreme Court, sometimes oral argument does little to clarify.  That seemed to be the case yesterday in Burt v. Titlow, which I previewed on Monday as a “messy” case presenting a disputed, unsettled, and incomplete factual record.  The Justices apparently hoped the case would provide a vehicle to clarify questions left open after its recent decisions in Lafler v. Cooper and Missouri v. Frye  regarding ineffective assistance of counsel in the plea bargaining context.  Michigan Solicitor General John Bursch began his oral argument clearly and strong, telling the Court that “[i]t’s Titlow’s burden to satisfy the burden of proof,” so “a silent record” must be “dispositive in favor of the State on [federal] habeas review.”  But as the Justices gently but firmly probed for factual and legal answers, the attorneys for both sides added facts not found in their merits briefs, made arguments not clearly presented before, and failed to give the Court a clear path out of the woods. Here are some representative comments from the Justices (in order from the transcript): Justice Sotomayor:  “This may be the first case that I have been involved in as a judge … where … the defendant has not put in an affidavit.  …[T]here’s a really sparse record here.” Justice Ginsburg:  “So how – how can that – that’s – I’ve never seen anything like this.” Justice Scalia:  “So, I mean, it seems to me quite weird.” Justice Alito: “You have my head spinning.” Justice Breyer: “First of all, did anybody make the argument as clearly as you have made it?”  Valerie Newman [Titlow’s counsel]:  “Not that I’m aware of.”  Breyer: “Well that’s the end of that, isn’t it?” Justice Alito [regarding a document referred to by counsel]: “It’s not in the habeas record, it’s not in the record of the federal court.  And we’ve been unable to get it from the State court.” Justice Sotomayor:  “I – I don’t understand what you’re saying.” Unsatisfied by the parties, the Court seemed to look to Assistant to the Solicitor General Ann O’Connell, appearing on behalf of the federal government as an amicus in the case, for guidance.  And O’Connell did offer two simple corrections of the Sixth Circuit – but then even this was not clear sailing.  First she asked the Court to hold that a defendant’s post hoc statement, standing alone, that he would have acted differently if he’d had competent lawyer advice “should be viewed with skepticism.”  “Every court says that,” Justice Sotomayor quickly retorted, and O’Connell conceded that she was “not asking for a special rule” here. Second, with regard to remedy, O’Connell urged that Lafler ought not be interpreted to “categorically” require a state to reoffer a plea bargain, when circumstances have changed and the original bargain is now effectively impossible.  (In this case, Titlow withdrew, allegedly on her lawyer’s bad advice, from a plea bargain that required her to testify against a co-defendant.  That co-defendant was then acquitted without Titlow’s testimony, and died.  So Titlow’s half of the bargain can’t be fulfilled now no matter what – as Justice Ginsburg pointed out, the original bargain is simply not even available.)  However, the Justices seemed to accept this second suggestion almost as a given, but noted that they have already said in Lafler that a state court need not accept a reoffered plea bargain in any case and so has wide-open discretion on remand.  So, as to the ultimate remedy, “[a]ll of these arguments should be before that court, not us,” said Justice Sotomayor.  While it seems likely that Justice Alito drove the grant of certiorari in this case, to make this very point as his Lafler dissent had stressed (no reoffer required in changed circumstances), it seemed like an easy non-issue at yesterday’s argument. The bottom line is that the Court seems certain to be critical of the Sixth Circuit in this case, for its dicta as well as its ruling.  Reversal of federal habeas relief also seems easy, b
about 8 hours ago
Tamara Francita Lawson (St. Thomas University School of Law) has posted Powerless Against Police Brutality: A Felon's Story (St. Thomas Law Review, Vol. 25, No. 1 (2012)) on SSRN. Here is the abstract: Imagine driving to the store with f...
Tamara Francita Lawson (St. Thomas University School of Law) has posted Powerless Against Police Brutality: A Felon's Story (St. Thomas Law Review, Vol. 25, No. 1 (2012)) on SSRN. Here is the abstract: Imagine driving to the store with friends,...
about 8 hours ago
JUSTICE SOTOMAYOR: I’m a little confused,  okay? I’m confused because we’re talking in the  abstract. This decision was based on a motion to  dismiss. And there is a huge colloquy about what  happens and doesn’t h...
JUSTICE SOTOMAYOR: I’m a little confused,  okay? I’m confused because we’re talking in the  abstract. This decision was based on a motion to  dismiss. And there is a huge colloquy about what  happens and doesn’t happen. We don’t have a record below. – Oral Argument in McCutcheon v. FEC. One of the more interesting features of the oral argument yesterday in McCutcheon is that it was, as Sotomayor suggests, an argument about facts in a case that was briefed on the law.  The lead briefs relied on theory, not the life of politics (though amici usefully supplemented the portrait of how politics works). In a previous article (Facts in Exile) I have argued that the growing abstraction in political law cases has led to more democratically passed laws being struck down, in part because modern Justices don’t have histories with politics (unlike the Justices before Buckley). Yesterday’s argument was a welcome change from that tradition–it was all about political strategies and Justices trying to imagine how it would work, in practice, if all aggregate limits were struck down. Breyer, the first questioner, set the tone with a question about mechanics–he was a little confused, but it started with the kind of question you might hear among an eager group of young political strategists. Kagan followed up playing the role of the weathered political pro–she knew how to aggregate, how to frame PACs in a way that would skirt the FEC’s earmarking rules. In a series of questions she showed how a strategic influence-seeker could spend millions to gain influence. After that, the word “scrutiny” was never mentioned, and the phrase “3.5 million” was used more often than the word “speech.” But the mismatch between the record in the case and the Justices desires to understand revealed itself throughout the argument. Breyer was clearly looking outside the record, as he found it lacking–both calling back to the summer he spent reading the lengthy record in McConnell, and mentioning that he was doing some online browsing: Breyer: “There are apparently, from the Internet, 200  people in the United States who would like to give $117,000 or more.” Breyer: “Turn on your television set  or internet. Because we found instances, without naming  names, where it certainly is a reality.” Alito called Kagan’s theories “wild hypotheticals,” as others have noted; anyone involved in politics would find them less wild. But he also rightly noted the lack of empirical support. This is both a problem with the way this case came to the court–the government should have developed a record–and a problem with political law cases more broadly. The scope of the record is potentially all of lived political life. Its also an embedded issue when it comes to striking down long standing laws. This relates back to Shelby County v. Holder. As you’ll recall, one issue in Shelby was whether the limited evidence of problems with voting rights in covered jurisdictions was evidence that the Voting Rights Act was working, or evidence that it is not needed. Likewise, the absence of evidence of people maxing the $123,000 limit to get direct influence may be evidence that the number is set just low enough that it isn’t worth it–as opposed to evidence that once its at $3.5 million, it wont be used. To my mind, with the Court made up as it does not have the institutional capacity to make decisions about corruption and the real workings of politics. Academics and appellate judges without substantial political backgrounds are too many steps away from the nature of political life. But I’m glad they are trying to step closer.
about 8 hours ago
In spite of my love of all quirky legal things English, until recently I had not focused on the Privy Council.  This ancient body advised the Crown before the modern Cabinet system began, but for lawyers its most interesting role was as ...
In spite of my love of all quirky legal things English, until recently I had not focused on the Privy Council.  This ancient body advised the Crown before the modern Cabinet system began, but for lawyers its most interesting role was as the highest court for (some) appeals from British courts and for the colonies of the Empire.  Couple of oddities worth pointing out: 1.  For a time the Privy Council was the highest court for Canada and other former colonies.  The notion of having a foreign body as a Supreme Court raises fascinating jurisprudential questions. 2.  The Privy Council is still the highest court (at least for some cases) from New Zealand. 3.  Privy Council opinions never have dissents (the opposite of the seriatim approach that long prevailed in other royal courts).
about 9 hours ago
There is an interesting case out of France this week where four former members of the Seventh Day Adventist Church have been arrested and charged with torture, barbarism, and kidnapping of Antoinette, a 19-year-old Cameroonian. Their de...
There is an interesting case out of France this week where four former members of the Seventh Day Adventist Church have been arrested and charged with torture, barbarism, and kidnapping of Antoinette, a 19-year-old Cameroonian. Their defense is novel: consent. Her former boyfriend, Eric Deron, who fashions himself to be something of a prophet, insisted that they were performing an exorcism by tying her to a mattress in a crucifixion position and kept her alive with small amounts of oil and water. Antoinette was found in a housing project emaciated, dehydrated, in a state of shock after a week of the “exorcism.” They began the exorcism after Deron said that Antoinette jumped him while babbling incomprehensibly. The Seventh Day Adventist Church issued a statement that the man had been expelled from the Church before his arrest. In the United States, consent defenses are not viable where the consent is to an illegal act or based on coercion or threat or mistake or secured from an individual who lacks capacity to consent. It would seem that this case raised multiple barriers to the defense.
about 10 hours ago