FedSoc Blog

New SCOTUScast: Tibbals v. Carter and Ryan v. Gonzales


by SCOTUScaster
Posted January 31, 2013, 6:43 PM

On January 8, 2013, the Supreme Court announced its decision in Tibbals v. Carter and Ryan v. Gonzales.  These death penalty cases considered the scope of the right to counsel in federal habeas proceedings where the convicted individual’s mental competency is at issue--whether a  federal court can put a state prisoner’s habeas claim on perpetual hold until mental competency is restored.  The specific question in Tibbals v. Carter was whether a capital prisoner possesses a “right to competence” in federal habeas proceedings under the Supreme Court’s 1966 decision in Rees v. Peyton.  The analogous question in Ryan v. Gonzales was whether a state inmate’s right to counsel in habeas proceedings (where the underlying offense was a capital offense) includes a right to a stay of habeas proceedings when the inmate is not competent to assist counsel.

In an opinion delivered by Justice Thomas, the Court held unanimously that there is no statutory “right to competence” in federal habeas proceedings; nor does a state prisoner have a right to suspension of federal habeas proceedings if he is judged mentally incompetent.

To discuss the case, we have Ronald Eisenberg, who is the Deputy District Attorney for the Law Division at the Philadelphia District Attorney’s Office.

Click here to view this article on the source site »

Categories: SCOTUScasts

Hotel Discount for the 32nd Annual Federalist Society Student Symposium Ends Today


by Publius
Posted January 31, 2013, 4:36 PM

For anyone planning on attending the 32nd Annual Federalist Society Student Symposium, "The Federal Leviathan," at the University of Texas School of Law, we have a special request.

It would be incredibly helpful if you could book your hotels today. The deadline for discounted rates at the Hilton Austin ends today, so please make sure to book now rather than later! Booking today will ensure your discounted rate.

We have made arrangements for special discounted prices on hotel, rooms, but you must book by January 31. Arrangements for room blocks with the Hilton Austin (500 E. 4th St.; 512-482-8000) and the Hilton Garden Inn (500 N IH 35; 512-480-8181). Room blocks are reserved under Federalist Society Student Symposium. Shuttles will run from these hotels to the events on campus.

Categories: Upcoming Events

Obama Nominates Two to Serve on the U.S. Court of Appeals


by Publius
Posted January 31, 2013, 2:40 PM

The White House distributed the following press release today:

Today, President Obama nominated Jane Kelly and Gregory Alan Phillips to the United States Court of Appeals.

President Obama said, “Jane Kelly and Gregory Alan Phillips have proven themselves to be not only first-rate legal minds but faithful public servants.  It is with full confidence in their ability, integrity, and independence that I nominate them to the bench of the United States Court of Appeals.”

Jane Kelly:  Nominee for the United States Court of Appeals for the Eighth Circuit
Jane Kelly has been an Assistant Federal Public Defender in the Northern District of Iowa since 1994, serving as the Supervising Attorney in the Cedar Rapids office since 1999. 

Kelly was born and raised in Greencastle, Indiana.  She received her B.A. summa cum laude in 1987 from Duke University and her J.D. cum laude in 1991 from Harvard Law School.  After graduating from law school, Kelly clerked for the Honorable Donald J. Porter of the United States District Court for the District of South Dakota.  Subsequently, she also clerked for the Honorable David R. Hansen on the United States Court of Appeals for the Eighth Circuit.  Prior to becoming an Assistant Federal Public Defender, Kelly worked briefly as a visiting instructor at the University of Illinois College of Law.  Since joining the Federal Public Defender’s Office, Kelly has argued numerous federal appellate cases, tried 14 cases to verdict in federal court, and argued countless motions.  In 2004, she received the John Adams Award from the Iowa Association of Criminal Defense Attorneys, which is given annually to an Iowa attorney who has dedicated his or her career to defending the indigent.

Gregory Alan Phillips:  Nominee for the United States Court of Appeals for the Tenth Circuit
Gregory Alan Phillips has served as Wyoming’s Attorney General since March 2011.  As Attorney General, he is the chief law enforcement officer of the state and his office represents Wyoming in all criminal appeals and civil suits before state and federal courts. 

Phillips grew up in Evanston, Wyoming.  He received his B.A. from the University of Wyoming in 1983 and his J.D. with honors from the University of Wyoming College of Law in 1987.  After graduating from law school, he served as a law clerk to the Honorable Alan B. Johnson of the United States District Court for the District of Wyoming from 1987 to 1989.  In 1989, Phillips joined his father and brother in their general law practice in Evanston, handling a broad range of civil matters.  From 1993 to 1999, he also represented Uinta County in the Wyoming State Senate.  Phillips opened the law firm Mead & Phillips in 1998, where he handled a wide variety of civil litigation and prosecuted Medicaid reimbursement claims on behalf of Wyoming.  In 2003, he joined the United States Attorney’s Office for the District of Wyoming and handled criminal prosecutions and appeals on behalf of the government.  As an Assistant United States Attorney, Phillips argued nineteen cases before the United States Court of Appeals for the Tenth Circuit.  He continued to serve in the United States Attorney’s Office until he was selected to serve as Attorney General by current Wyoming Governor Matthew Mead.

Categories: External Articles

Did Obama Diminish the Presidency with His Recess Appointments?


by Publius
Posted January 31, 2013, 9:44 AM

John Yoo, professor at the University of California Berkeley School of Law, writes in the Wall Street Journal:

A year ago this month, President Obama bypassed the Senate's advice-and-consent power by naming three new members to the National Labor Relations Board and appointing Richard Cordray to head the Consumer Financial Protection Bureau. Mr. Obama declared that these were "recess" appointments even though the Senate—by its own definition—remained in session.

The D.C. Circuit Court of Appeals on Friday unanimously struck down these unilateral appointments, but the three-judge panel's decision in Noel Canning v. NLRB did more than knock a few people out of work and effectively nullify a year's worth of rules that eased union organizing and regulated mortgages and credit cards.

Judge David Sentelle, given an opening by the unprecedented White House power grab, issued a ruling that has profound ramifications for the office of the presidency. He and judge Karen Henderson rejected the very idea of "intra-session recess appointments." Mr. Obama thus has jeopardized a vital executive power for all future presidents.

Senate advice and consent serves as an important counterweight in the unending struggle between the president and Congress. The Constitution, however, allows presidents to temporarily fill "vacancies that may happen during the recess of the Senate," because in the late 18th century legislative sessions were short and breaks could last as long as nine months.

Since 1823, presidents have filled offices that opened even while Congress was in session, on the legal fiction that the vacancies continue to "happen" when the recess came. In the early 20th century, presidents also claimed that, in addition to the official break between a Congress's first and second years, a short Senate adjournment constituted a recess when unilateral appointments could be made.

Mr. Obama's defenders may claim that his exercise of appointment power differed little from that of his predecessors. President George W. Bush, for example, appointed William Pryor in 2004 as a federal judge and John Bolton as U.N. ambassador in 2005 during Senate adjournments.

President Bush acted after he became frustrated with Senate inaction on his nominees. He was also frustrated by Majority Leader Harry Reid's maneuver, beginning in 2007, to keep the body in "pro forma" session where it continued to meet but no important business was conducted. But Mr. Bush respected the Senate's authority over its own rules, and he declined to unilaterally select officials in violation of the Appointments Clause.

Not so Mr. Obama, whose unwarranted use of executive authority has provoked the D.C. Circuit to reverse 190 years of constitutional practice. Though the Senate remained in session last January and even passed major legislation during that time, Mr. Obama went ahead and appointed the NLRB and CFPB officials anyway. The Justice Department argued that the president could decide for himself whether the Senate was really in session and whether it was "genuinely capable of exercising its constitutional function."

Under the Constitution's separation of powers, each branch of government sets its own internal rules. Only the Senate can decide to allow a filibuster. Only justices decide to issue written opinions, or decide cases by majority vote. The president chooses to whom he listens, with whom he discusses, and through whom he transmits his decisions.

Mr. Obama, however, claimed the right to judge the legitimacy of the other branches' proceedings—a seizure of power unheard of in American history. A future president employing this power could ignore legislation that he thought insufficiently debated, recognize laws that had not met the filibuster's 60-vote requirement, or only enforce unanimous Supreme Court decisions.

In Noel Canning, Judge Sentelle confronted more than one instance of executive overreach. Mr. Obama has also distorted the Framers' presidency into an instigator of domestic revolution, rather than as the protector of the national security and the enforcer of the laws. . . .

Mr. Obama . . . has wasted his office's constitutional capital for domestic advantage. He did not fill a vital office during a time of crisis; instead his appointments to the NLRB rewarded constituencies vital to his re-election and burnished his populist credentials. This is of a piece with another unprecedented exercise of executive power: Mr. Obama's refusal to enforce laws that he dislikes. His Justice Department, for instance, will not deport illegal immigrants as required by law. Mr. Obama's abdication of a core constitutional responsibility as a way of advancing his political fortunes is a remarkable and troubling turn in the history of the presidency.

Last week, the Federalist Society produced a podcast  the day of the D.C. Circuit's decision. The podcast featured:

  • Dr. John C. Eastman, Chapman University School of Law
  • Mr. Noel J. Francisco, Jones Day
  • Prof. Todd J. Zywicki, George Mason University School of Law
  • Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

Among other things, Professor Zywicki discussed his recently published article, "Policy-Based Evidence-Making at the Consumer Financial Protection Bureau." In that article, he first describes the mortgage rules very recently adopted by the Consumer Financial Protection Bureau (CFPB). He goes on to question whether the rationale for the new rules is supported by factual evidence. Finding they are not, he calls for greater oversight of the CFPB.

You can listen to the podcast here.

New SCOTUScast: Already, LLC v. Nike, Inc.


by SCOTUScaster
Posted January 30, 2013, 5:48 PM

On January 9, the Supreme Court announced its decision in Already, LLC v. Nike, Inc. The case concerns a suit in which Nike alleges that certain of Already’s athletic shoes infringe Nike’s “Air Force 1” trademark, and Already contends in response that the trademark is invalid.  During the litigation, Nike issued a covenant stating that it would not assert any trademark or unfair competition claims against Already based on its existing footwear designs or future “colorable imitations,” and then sought dismissal of all claims with prejudice.  Already resisted dismissal, and the question is whether Nike’s unilateral covenant renders the case “moot."

In an opinion delivered by Chief Justice Roberts, the Court held unanimously that application of the voluntary cessation doctrine establishes that the case is moot.  Justice Kennedy filed a concurring opinion, which was joined by Justices Thomas, Alito and Sotomayor.

To discuss the case, we have Christopher Newman, an assistant professor of law at George Mason University School of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

Are the Voluntary Federal Law-Clerk Hiring Guidelines Dead?


by Publius
Posted January 30, 2013, 4:09 PM

David Lat comments at Above the Law:

When it comes to the Law Clerk Hiring Plan, the voluntary set of guidelines to put federal law clerk hiring on a standard timetable, one might say, “The ship be sinking.”

Actually, scratch that. The ship be sunk, and barnacles are growing all over its hull.

We declared the Plan dead last June, when at least two top schools decided not to participate in it. But now the Plan is, well, dead and growing cold and decomposing.

Yesterday brought word that an über-prestigious court, one that gunners across the land would sacrifice body parts to clerk for (who needs a pinky finger anyway), is abandoning the Plan….

The court in question: the Most Holy D.C. Circuit, second only in prestige to the U.S. Supreme Court. Even though its docket, heavy on administrative law, might not make for the most fun clerkship experience, the prestige more than makes up for it. Four out of nine SCOTUS justices are former members of the D.C. Circuit, and current members of the D.C. Circuit include several leading feeder judges.

Yesterday the D.C. Circuit announced that its judges won’t be participating in the Law Clerk Hiring Plan. . . .

From the notice just posted to the D.C. Circuit’s website:

Although the judges of this circuit would uniformly prefer to continue hiring law clerks pursuant to the Federal Law Clerk Hiring Plan, it has become apparent that the plan is no longer working. Because participation in the plan is voluntary, a significant percentage of all United States circuit judges must agree to follow it if it is to work appropriately. During the past few years, a significant and increasing number of circuit judges around the country have hired in advance of the plan’s interview and offer dates, and it is likely that they will continue to do so. As a result, continued adherence to the plan is no longer fair and equitable to either students or judges. . . .

Categories: External Articles

France To Deport “Radical Foreign Imams”


by Publius
Posted January 30, 2013, 12:23 PM

Al-Jazeera reports:

French Interior Minister Manuel Valls has said that Paris is set to deport a string of radical religious imams as part of a fight against "global jihadism".

"Several radical foreign preachers will be expelled in the coming days," Valls told a Brussels conference called to tackle extremism in Europe on Tuesday, without identifying any of the individuals concerned.

"I don't confuse this radical Islam with the Islam of France but there is a religious environment, there are Salafist groupings, who are involved in a political process, whose aim is to monopolise cultural associations, the schooling system," he added.

"We will expel all these imams, all these foreign preachers who denigrate women, who hold views that run counter to our values and who say there is a need to combat France.

"We have to be extremely firm and that I will be," he said.

The move is part of a programme that France has carried for years against those who preach violence or considered to bet a threat to public order and French values.

In last October, France expelled a Tunisian imam accused of calling his followers to "violent jihad" and violence against women, the interior ministry said.


Categories: External Articles

Christian School’s Lawsuit May Test Supreme Court’s Religious Freedom Ruling in Hosanna-Tabor Case


by Publius
Posted January 30, 2013, 10:02 AM

The Associated Press reports:

A lawsuit by a Southern California Christian school against two former teachers who refused to provide proof of their faith could pose one of the first court tests of a U.S. Supreme Court ruling on religious freedom.

A legal expert said last year's ruling that religious workers can't sue for job discrimination never specified whether that includes teachers at religious schools.

Calvary Chapel of Thousand Oaks purchased Little Oaks School in 2009, and leaders told employees last year that they would need to provide a statement of faith and a reference from a pastor to renew their contracts.

The two teachers lost their jobs after refusing to provide the documents. After they threatened litigation, school leaders filed their own lawsuit in federal court in Ventura.

James A. Sonne, director of the Religious Liberty Clinic and a lecturer in law at Stanford University Law School, noted that the dispute comes just a year after the high court's ruling in the case of the Hosanna-Tabor Evangelical Lutheran Church and School of Redford, Mich., which holds that religious workers can't sue for job discrimination.

The court refused to specify in that ruling what constituted a religious worker, leaving teachers uncertain of their status under the law.

Sonne said the question remains whether teachers are performing "ministerial duties."

"Churches have First Amendment rights to choose their ministers," Sonne said. "The question is how does that apply outside the liturgical setting? The area where that will be played out is in the religious school context."

The school and its owner say their right to hire teachers who share their beliefs is protected by the California Constitution, the U.S. Constitution's right of the free exercise of religion, and civil rights laws.

The school is incorporated as a for-profit entity, but church leaders said the school is operated not as a profit-generating entity but as a spiritual arm of the church. About 130 students in preschool through fifth grade are taught there.

The teachers, Lynda Serrano and Mary Ellen Guevara, are citing the state's Fair Employment and Housing Act, which prohibits religious discrimination with exemptions that do not include for-profit religious groups.

Sonne said a constitutional ruling under federal law would most likely trump a state provision, which may be the reason the church filed in federal court. . . .

In the March 2012 edition of Engage, the journal of FedSoc's practice groups, Professor Carl H. Esbeck published a relevant article titled "A Religious Organization's Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment." You can read it here.


Categories: External Articles

How Should We Respond to the Newtown Tragedy?


by Publius
Posted January 29, 2013, 5:41 PM

In a report for the Heritage Foundation, John Malcolm and Jennifer A. Marshall write:

All Americans, from whatever walks of life and of whatever political or philosophical convictions, abhor the death of innocent human beings and had a visceral reaction of shock and pain to the killing of 20 schoolchildren and six staff members in Newtown, Connecticut, in December 2012. In responding to this attack, Americans must consider with great reflection and care how best to proceed, in a manner consistent with our laws and our traditions, to protect innocent lives.

First, we must identify the specific problems to be addressed involving school safety, mental illness, the cultural climate, and the misuse of firearms.

Second, we must analyze potential solutions to the specific problems identified, examining the facts and taking into account the costs and benefits of the potential solutions to ensure that sound judgment governs the emotions inescapably attached to the subject.

Finally, Americans must implement appropriate solutions in a manner that is consistent with the Constitution, including the Second Amendment guarantee of the right to keep and bear arms, the traditional role of the states in our federal system, and the central significance of family.

Making public policy is especially challenging in these circumstances. In responding to tragedies such as Newtown, concern must be channeled by individuals, families, civil society, and possibly government into effective measures that are consistent with the Constitution. Policymakers should not just do something to alleviate our sense of urgent responsibility without due consideration of its effects. Careful diagnosis of the full scope of the problem is essential. Complex cultural factors must be taken into consideration, and sober judgment about human nature is required. Constitutional principles and constraints, which are so vital to preserving our cherished liberties, must be observed. Not all problems can be solved with government action, and if government action is required, any federal action, including executive orders, should be consistent with our federal system of government, respect for state sovereignty, and the separation of powers.

Our Constitution was framed for a self-governing people, and effective constitutional responses will therefore transcend federal policy mechanisms. Policymakers should avoid rushing to judgment on prescriptions that fail to respect constitutional principle or to locate the root of the problems, some of which lie in complex cultural issues that are best addressed at the state and local levels or that lie beyond the reach of policy altogether—best addressed by families, religious congregations, and other institutions of civil society. . . .


Categories: External Articles

Michigan Supreme Court Justice Pleads Guilty to Bank Fraud Charge


by Publius
Posted January 29, 2013, 2:55 PM

The Detroit News reports:

Former Michigan Supreme Court Justice Diane Hathaway pleaded guilty Tuesday to bank fraud and could face up to 18 months in prison.

Hathaway negotiated a guilty plea with federal prosecutors and waived her right to indictment or trial. She appeared before U.S. District Court John Corbett O'Meara in his Ann Arbor courthouse just eight days after stepping down from the high court.

"Do you still ask me to accept your guilty plea?" O'Meara asked Hathaway.

"Yes, your honor," she replied.

O'Meara set a May 28 sentencing date. Depending on how much the judge rules Hathaway defrauded her bank in a scheme to get a short sale, she'll pay up to $90,000 in restitution, according to her attorney, Steve Fishman.

Federal prosecutors have accused Hathaway of concealing assets and transferring homes to stepchildren in a scheme to get mortgage lender ING Direct to forgive $600,000 owed on a $1.5 million Grosse Pointe Park home and unload the lakefront property in a November 2011 short sale.

Fishman could not explain why his client shuffled the homes around, resulting in the fraud.

"It was dumb," Fishman told reporters. "There wasn't any reason for it. It made no sense." . . .

Under the plea agreement, Hathaway could face 12 to 18 months in prison and have to pay the bank $90,000 in restitution, said Assistant U.S. Attorney Daniel Lemisch.

Categories: External Articles

Justice Sotomayor Speaks About the Beneficial Role of Affirmative Action in Her Life


by Publius
Posted January 29, 2013, 10:55 AM

According to the San Francisco Chronicle:

Supreme Court Justice Sonia Sotomayor, in town Monday to promote her newly released memoir, said she couldn't talk about affirmative action because of a pending court case. In the next breath, she talked about what it had meant to her - admission to Princeton and Yale Law School and the launching of a legal career.

"I was given the chance to get to the start of the race and it changed my life," the 58-year-old justice told a sold-out Commonwealth Club audience at the Herbst Theatre in San Francisco.

When she entered Princeton on a scholarship in 1972 despite unspectacular test scores, she recalled, the school was in only its third year of admitting women and had barely a handful of minority students.

She graduated with honors, then had much the same experience as a Yale law student before becoming a New York prosecutor, a private lawyer and a federal judge. When President Obama appointed her to the Supreme Court in 2009, she became its third-ever female justice and first Latina.

"Yes, I needed help, but once I got there, I worked at it and I proved myself worthy," Sotomayor said. She said she wants to tell "people who have been accused of getting in because of special favors not to feel ashamed" of what they achieve on their own.

Her views contrast with those of the court's other minority justice, Clarence Thomas, whose race had earlier helped him gain admission to Yale Law School. No matter what he accomplished, Thomas wrote in a 2007 memoir, "it was futile for me to suppose that I could escape the stigmatizing effects of racial preference."

Such programs may soon be restricted or outlawed by the Supreme Court, which heard arguments in a University of Texas case in October. As usual, the liberal Sotomayor and conservative Thomas are likely to wind up on opposite sides. . . .

Last October, the Federalist Society producted a podcast on the subject "Fisher v. University of Texas: Affirmative Action Revisited by the Supreme Court" with Professor Gail Heriot fo the University of San Diego School of Law. Dean Reuter, the Federalist Society's Vice President & Director of Practice Groups, was the moderator. You can listen to the recording here.

Categories: External Articles

NLRB Ignores D.C. Circuit’s Recess Appointment Decision


by Publius
Posted January 29, 2013, 9:52 AM

According to a Wall Street Journal editorial:

President Obama's second term could really be something. In the latest disdain for the Constitution's checks and balances, the National Labor Relations Board has declared that it doesn't like the D.C. Circuit Court of Appeals Friday ruling that three board members were illegally appointed so it plans to ignore it.

"The Board respectfully disagrees with today's decision and believes that the President's position in the matter will ultimately be upheld," Chairman Mark Pearce said in a statement. "It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

"In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions."

So, let's see. First, President Obama bypasses the Senate's advice and consent power by making "recess" appointments while the Senate was in pro-forma session specifically to prevent recess appointments. Then when a federal court rules the recess appointments illegal, the NLRB declares that it will keep doing business as if nothing happened.

Without Mr. Obama's illegal appointments, the board would have been without a quorum and unable to decide a single case. That lawless behavior means more than 200 of the NLRB's rulings in the past year are in limbo. It's bad enough to force those 200 litigants to appeal rulings that are sure to be overturned. But the board wants to keep issuing new rulings though it now knows that a unanimous appeals court has declared them illegal, pending a Supreme Court review that may never happen.

Mr. Obama can legally reconstitute the NLRB by getting his appointees confirmed by the Senate. Meantime, Nebraska Senator Mike Johanns is right to call on the illegal members to resign. If they won't, Congress should stop funding the NLRB as soon as the continuing spending resolution expires in March.


Categories: External Articles

New SCOTUScast: Lozman v. City of Riviera Beach, Florida


by SCOTUScaster
Posted January 28, 2013, 4:55 PM

On January 15, the Supreme Court announced its decision in Lozman v. City of Riviera Beach, Florida. The case considers whether a floating home that was unable to navigate and indefinitely attached to a dock constituted a “vessel” for purposes of federal maritime law.  Although the City had obtained a court order requiring the sale of the home (due to non-payment of bills for city services) and then purchased it at the subsequent auction, the disposition of a bond the City posted in the course of the litigation remained in question.

In an opinion delivered by Justice Breyer, the Court held by a vote of 7-2 that such a floating structure does not constitute a "vessel" because a reasonable observer would not conclude it was such, and thus does not fall within the scope of federal maritime law.  Justice Sotomayor filed a dissenting opinion, which was joined by Justice Kennedy.

To discuss the case, we have Rod Sullivan, an associate professor at Florida Coastal School of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

FEC Not Liable for Failed Oversight of Madoff Fraud


by Publius
Posted January 28, 2013, 3:17 PM

According to the Trial Insider blog:

Victims of the Bernie Madoff Ponzi scheme cannot use the Federal Tort Claims Act to sue the U.S. government and the Securities and Exchange Commission for failing to uncover Madoff’s massive fraud, the 9th U.S. Circuit Court of Appeals ruled Monday.

The Dichter-Mad family Partners, a Florida partnership that invested with Madoff, argued the SEC had a duty of reasonable care for the public and investors and thus should be held to account under the FTCA.

The appeals court upheld dismissal of the suit on the grounds that the court lacks jurisdiction because the actions of the SEC and government “fall within the ‘discretionary function’ exception to the act.

The suit was brought by a group of investors in Madoff’s Ponzi scheme, including Florida partnership, which includes Philip Dichter, a lawyer representing himself and Richard M. Gordon, an other lawyer representing himself.

Madoff ran what became the largest Ponzi scheme in history. The former chairman of NASDAQ and highly regarded investment advisory pleaded guilty to 11 federal felonies in 2009 and bilking thousands of investors of $18 billion. The clients not only lost their original investments but many thought they had far more money in fabricated gains, roughly $65 billion.

His sons went to authorities in December 2008 saying their father confessed that his asset management unit was a Ponzi scheme. He was arrested the next day.

Although a financial analyst Harry Markopolos told the SEC in 1999 he suspected that Madoff’s investment returns were mathematically impossible, the SEC did little to investigate.

In June 2009 he was sentenced to 150 years in prison.

The appeals court’s three-page decision also attaches the 79-page dismissal by U.S. District Judge Stephen V. Wilson in Los Angeles.

Wilson concluded back in 2010 that, despite a 450-page decision by the SEC’s inspector general pointing out the failure of the SEC to uncover Madoff, that the agency acted within its descretion when it set the level of inquiry.

Joining in the decision were Judges Stephen Reinhardt, Kim Wardlaw and Richard Paez.


Categories: External Articles

Boston FedSoc Chair Teaches the Legal Lessons of Shakespeare


by Publius
Posted January 28, 2013, 11:57 AM

The Boston Globe reports on an all-star Federalist Society performance of Shakespeare:

“The first thing we do, let’s kill all the lawyers.” When people gleefully quote that line from Shakespeare, or print it on T-shirts, they might not realize that the playwright actually showed a deep and abiding interest in the law. Lawyers have returned the favor, citing and debating points made by Shakespeare or his characters in court, in articles, and in judicial opinions.

To this day, humanitarian lawyers cite the English rage over the French slaughter of unarmed English boys in “Henry V” as an important instance of how moral norms exist even during brutal combat. The entire plot of “The Merchant of Venice” hinges on a breach-of-contract dispute, with Shylock demanding cruel justice when a loan he makes goes unpaid. Portia, who presides over the trial Shylock instigates, gives a speech about tempering the letter of law with mercy that is a touchstone for contemporary jurists.

Since 2001, Daniel Kelly, a partner at the Boston law firm McCarter & English, has overseen an annual event, “Shakespeare and the Law,” aimed at unlocking what Shakespeare can teach us about legal thinking, and how the legal themes of the plays illuminate current events. Kelly is also an adjunct faculty member at Suffolk University, which hosted the event this year, and an avid amateur actor who frequently plays Shakespearean characters in local theater. As the chairman of the Boston lawyers’ chapter of the Federalist Society, a conservative group, Kelly was searching for ways to bring together liberals and conservatives to debate the big legal issues of the day. Who better to serve as a lure than the Bard?

The event he concocted, with the assistance of the Commonwealth Shakespeare Company, has drawn national and local legal and political eminences to perform staged readings of plays and discuss their legal themes. For this year’s session, held Jan. 17, C. Boyden Gray, White House counsel to President George H.W. Bush, served as host and moderator; among the panelists and performers were the federal judges Nathaniel M. Gorton, Dennis Saylor IV, Douglas P. Woodlock, and Rya W. Zobel, and the retired federal judge (now Harvard professor) Nancy Gertner, who played King Richard II. . . .




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