Leave aside that the article hits the tired drum that more people should have gone to prison after the financial crisis – because, of course, the only thing that causes an economic downturn is crime.
Instead, check out how SIGTARP shows us that they’re doing good work as a law enforcement agency.
[Special Inspector General Christy] Romero noted that the average prison sentence imposed by courts for crimes investigated by SIGTARP is five years and nine months — nearly twice the national average for white-collar fraud.
Right – SIGTARP is a serious player because it’s getting serious prison time…
Ed. note:Matt Kaiser founded The Kaiser Law Firm PLLC, a white-collar boutique in Washington, D.C., and will now be writing a weekly column for us about white-collar practice and his adventures in building a law firm. Matt previously covered the Supreme Court for us. This is the second installment of his new column.
Suppose you’re a fourth-year associate in a litigation department in a large firm on one of the coasts. You’ve worked on a lot of different matters — you’ve done document review for commercial litigation. You put together a privilege log for some patent litigation (who says patent litigation is specialized?). You waded through documents in an FCPA case. You even got to do some deposition digesting for a reinsurance lawsuit!
You really liked your work on the FCPA document review. You noticed that the documents related to a foreign country, which sounded exotic. You could sit in your office, staring at the brick wall on the other side of the alley, and imagine that you were an extra in Casablanca, with a view toward how the world really works overseas.
Perhaps most importantly, you loved how your friends from law school reacted when you told them you were working on an FCPA matter. Cocktail parties became more interesting when people thought of you as a white-collar criminal defense lawyer, rather than the reinsurance guy. You resolved that you’d do more white-collar work and perhaps make this noble practice area the focus of your career.
Ed. note:Matt Kaiser founded The Kaiser Law Firm PLLC, a white-collar boutique in Washington, D.C., and will now be writing a weekly column for us about white-collar practice and his adventures in building a law firm. Matt previously covered the Supreme Court for us. This is the first installment of his new column.
When I meet non-lawyers — a rare and jolting occurrence -– or talk to lawyers who don’t practice in the white-collar criminal space, I’m frequently surprised at how few of them know what “white-collar criminal defense” means.
Yet, whatever it is, white-collar work is seen as sexy. Just about any fifth-year associate who has reviewed documents as a part of an FCPA investigation has “white-collar criminal defense” listed as a practice area on his firm bio. Fewer, I suspect, have a clear understanding of what white-collar work is.
There are clear cases. The prosecution of John Edwards is classically a white-collar case: it involved campaign finance, was in federal court, was litigated like a civil case, and Abbe Lowell represented the defendant (any case involving Abbe Lowell is per se white-collar).
The front of the Supreme Court building: ‘Equal Justice Under Law.’ (Click to enlarge.)
The Supreme Court was called to order at 10:00 a.m. sharp. The Chief Justice announced, “Justice Kennedy has our first opinion of the day in case number 12-307, United States v. Windsor. Everyone, in the bar members section at least, knew that this was the Defense of Marriage Act case.
That Justice Kennedy was announcing the opinion was significant; he wrote Lawrence v. Texas. Still, no one knew if the Court would reach the merits, since the Solicitor General had announced that the Executive Branch would not defend the constitutionality of DOMA.
Justice Kennedy is an orderly man. He set out the procedural background – Edith Windsor and Thea Spyer were married legally in Canada, then came home to New York. Their same-sex marriage is lawful where it was performed and where they lived. Spyer died and left her estate to Windsor. Windsor sought to claim an estate tax exemption for the death of a spouse. DOMA prevented the IRS from recognizing Spyer as Windsor’s spouse. Windsor paid the tax, then challenged DOMA. She won in the district court and the Second Circuit. Justice Kennedy explained how a bipartisan committee found counsel to defend DOMA, and how DOMA was defended ably in the Supreme Court.
(As an aside, Paul Clement took heat for defending DOMA for Congress. When you think about it, if he hadn’t defended it well, the Supreme Court may not have thought it could reach the issue. Paul Clement may be the unsung hero of the DOMA decision.)
So, Kennedy concluded, the Court could reach the merits of whether DOMA is constitutional.
Though a hopeful sign for those who would cheer the demise of DOMA, the decision wasn’t entirely clear….
Not the whole act, mind you. The prohibition on any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” is still constitutionally permissible. And folks can sue to enforce that.
But the preclearance requbirement is now effectively gone. That’s the rule that the federal government has to approve changes to voting laws in certain jurisdictions that haven’t been so great about race – in that folks registering black people to vote had been murdered in there, or, they’d had really bad records of African-American voter turnout in the past.
Strictly speaking, the preclearance requirement is not gone — it just no longer applies to any jurisdiction in the country any longer. The Court invalidated the method by which it is determined which jurisdictions are subject to preclearance, rather than preclearance itself. So, now no jurisdiction is subject to preclearance — the preclearance formula is gone.
Many people who are concerned about whether black people are allowed to vote think that the preclearance requirement has been an important tool to make sure black people enjoy the right to vote.
The front of the Supreme Court building: ‘Equal Justice Under Law.’ (Click to enlarge.)
Justice O’Connor, Justice Stevens, Ted Olson, David Boies, Jeffrey Toobin.
All of them were at the Supreme Court today, eager to hear what the Court had to say. New gay-marriage crusading BFFs Olson and Boies sat together. Also in attendance were lots of other fancy folks — like Solicitor General Don Verrilli and Nina Totenberg — who are there more often.
There’s nothing like late June at One First Street.
At the start of the day, 11 cases remained to be decided, four of them blockbusters. The issues on deck: the Defense of Marriage Act, Prop 8, the Voting Rights Act, and the University of Texas’s use of a form of affirmative action. Today, one of the big cases was resolved; with five others coming out, there are only six remaining.
Today, the Supreme Court, in an opinion by Justice Kennedy, addressed the University of Texas’s use of affirmative action. As the Chief Justice announced that Justice Kennedy had the opinion and would start reading it, a rush swept through the courtroom. People leaned forward. Papers rustled….
The third week of June is a frustrating time to follow the Supreme Court.
If there’s any institution in contemporary America that understands ceremony, it’s the Court. Such a self-consciously dramatic institution is, in no way, going to underestimate the importance of timing in issuing opinions. The Justices know that there’s a big difference between a story — or a history book — that starts “On the last day of the Term, the Supreme Court decided,” versus “On the third to last day of the Term….”
There is, in short, just about zero chance that this close to the end, yet not quite at the end, the Supreme Court is going to issue an opinion in the Texas affirmative action case, the Voting Rights Act case, the challenge to the Defense of Marriage Act, or the California Proposition 8 case.
And yet, the Court still issues opinions. And we still line up to hear them, or push SCOTUSblog’s liveblog viewer-count to even higher numbers, even if we all know, or should know, that the opinions we get are not opinions that will resonate through the ages.
Today, the Supreme Court did issue three opinions. And one of them is important, if only for disaffected teenagers. The rest you may not care about, unless you’re a felon with a gun or you ever signed an arbitration agreement….
(1) Monopolies are generally illegal.
(2) Like baseball, patents make monopoly laws get a little funky.
(3) Courts really really really like to encourage settlements.
So, when two companies get together, and work out a settlement that makes a whole patent infringement lawsuit go away, and the only objection is that pesky Federal Trade Commission complaining that the settlement is anticompetitive, you can understand why a federal court could meditate on points (2) and (3) and dismiss that FTC complaint.
Yet, in FTC v. Actavis, the Supreme Court yesterday made it harder to settle some patent infringement suits, saying that sometimes a settlement of a lawsuit can be an antitrust problem.
If you’ve been arrested, and the police want to interrogate you, they will tell you that you have the right to remain silent.
How do you assert that right?
One way would be to say something like “I would like to remain silent.” Saying “I want a lawyer” should also stop the questioning.
But today, in Salinas v. Texas, the Supreme Court of the United States held that you do not assert your right to remain silent by remaining silent. If you want to remain silent, you’ll need to be prepared to talk about it.
No one will be surprised that this result came from the Justice least likely to be voted most beloved by those in our nation’s prison systems, Justice Alito.
It used to be, back before 2005, that the federal sentencing guidelines were mandatory. If you were going to be checking into the United States Bureau of Prisons, the sentencing guidelines determined how long your reservation would be for.
And, it used to be, that if you committed a federal crime, and, between when you committed the crime and were sentenced, the sentencing guidelines went up, the judge had to apply the lower sentencing guidelines from when you committed the crime.
To do otherwise would violate the Ex Post Facto clause.
The sentencing guidelines changed, though, with Booker. Now they aren’t mandatory – they’re just something important that a federal judge has to look at and a federal judge may be risking reversal if she doesn’t follow them.
Got that? The guidelines are totally discretionary. But for the appellate review. Also most federal judges follow the guidelines almost every time. But that’s just a coincidence.
So, since the guidelines are no longer mandatory, but, rather, now just followed in the vast majority of cases, what happens to the Ex Post Facto clause?
The legal industry is being disrupted at every level by technological advances. While legal tech entrepreneurs and innovators are racing to create a more efficient and productive future, there is widespread indifference on the part of attorneys toward these emerging technologies.
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past seven years. You can reach them by email: firstname.lastname@example.org.
We at Kinney Asia have made a number of FCPA / White Collar US associate placements in Hong Kong / China thus far in 2014. Most of such placements have been commercial litigation associates from major US markets, fluent in Mandarin, switching to FCPA / White Collar litigation. Some have already had FCPA experience, but those are difficult candidates for firms to find (this will change in coming years as US firms are now promoting FCPA / White Collar to their 2L summers who are fluent in Mandarin and have an interest in transferring to China at some point).
Legal Week quoted Kinney’s Head of Asia, Evan Jowers, extensively in the following relevant article here.
There is a new trend in the market, though, where mid-level transactional US associates, fluent in spoken Mandarin and written Chinese, are interviewing for and in some cases landing junior FCPA / White Collar spots in Hong Kong / China at very top tier US firms.
When the LexisNexis Cloud Technology Survey results were reported earlier this year, it showed that attorneys were starting to peer less skeptically into the future, and slowly but surely leaning more toward all the benefits the law cloud has to offer.
Because let’s face it, plenty of attorneys are perhaps a bit too comfortable with their “system” of practice management, which may or may not include neon highlighters, sticky notes, dog-eared file folders, and a word processing program that was last updated when the term “raise the roof” was still de rigueur.