SCOTUS granted cert on my issue. No word on when arguments will be.

Darn. I knew the risk, but I wanted to be cool and have something published before they looked at the issue, because then I would have been the only article out there on it. Yeah.


This isn’t my own creative work, but it amused me. It was posted on the Lawrence Journal-World website. Here’s a haiku in response to the Heller decision.

Hand me my shotgun.
I need to go kill a bear,
then I’ll have bear arms.


Thank you, Mom, for teaching me how to flirt. Because of it, I managed to be alone in the courtroom of the Supreme Court of the United States.


Chief Justice Roberts visited KU

Last night, CJ Roberts gave a lecture through the business school. It was fairly disappointing, honestly. He read his talk, and he talked about the Louisiana Purchase. He also spent a long time on the mechanics of the Supreme Court. I understand that the audience was made up of many lay people and that he couldn’t actually talk about many of the things we really wanted to hear about (e.g., Heller), but I guess I expected a little more.

Today, however, he had a Q&A session for law students. I got there 1 1/2 hours early, so I was first in line. He actually walked in while I was in line, and he said hi. It was quite the moment. I got to sit in the front row, and the session was just great. People asked all sorts of things, from what he considers when deciding a case to his view on the Constitution (although that question was also asked last night by Adam Davis and received by the audience with resounding applause) to advice for aspiring advocates.

I asked the second question. I asked him about the Medellin case. In that one, which came out just over a month ago, he wrote the opinion for five justices (the conservative ones), in which the Court held that an ICJ decision (that a certain treaty required the government to notify the Mexican government of the charging of Mexican nationals) was not binding on the individual states, and so the habeas petitions filed by 51 Mexican nationals were rightfully denied. In the analysis, the majority looked to the text of the treaty, and the Vienna Convention on the Law of Treaties, and the US Constitution, and found that ICJ decisions were not self-executing treaties and could not be binding unless the Senate ratified them. My question was whether he would advise countries developing independent judiciaries to include something in their constitutions that would make ICJ decisions binding on the individual parts of the country. He didn’t directly answer this, saying that it was up to the country and he couldn’t advise them one way or the other, but he also said that if the country decides it wants to be bound by a bunch of judges far away, it’s that country’s own perogative. That seems clear enough to me.

So then he taught the constitutional law class, which I unfortunately could not attend. I heard it was great. But then, in the afternoon, he and four judges who sit in Kansas (two 10th Circuit judges, a District of Kansas judge, and a Kansas Supreme Court justice) judged the final round of our in-house moot court competition. There were probably 100 students there, a number of professors, a handful of local judges, and lawyers from the firm (Foulston Siefkin) that sponsors the prizes for the in-house competition. The student advocates were excellent. The bench was really hot. The justices usually didn’t let the advocates speak for more than 15 or 20 seconds without interrupting them. The few times they didn’t interrupt, the advocates were kind of thrown off. But everyone did a really great job of advocating, especially under such intimidating circumstances. All of the judges/justices-for-the-moment gushed about how wonderful the advocates were, and Judge Tacha even said they did as well if not better than the final round in the national competition, whose problem we used. I was thrilled for the team that won – Dani and I were rooting for them from the beginning – but I was still a little bummed that it wasn’t the two of us up there.

After the competition, there was a reception in the informal commons. Lots of men in suits (and not just federal marshalls) were trying to get close to Roberts, but I managed to get pretty close to him. And then he turned towards me! And he shook my hand and thanked me for my question! It was a very proud moment for me, even if it was just what the situation required.

I know CJ Roberts is a conservative judge, and I don’t necessarily agree with his opinions (including the opinion he wrote for Medellin), but he’s brilliant, his credentials are absolutely outstanding, and he’s kind of dreamy. I’ve been joking about swooning. Ah, men with power. That is probably slightly inappropriate for a legal blog, but oh well.

It’s been an exciting day and a half. (And today was the last day of classes, which made it even better.)

protecting the innocent… corporations?

I didn’t realize the significance of this case until I read a blurb about it in the Economist this week. The US Supreme Court came down recently with the decision in Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., — S. Ct. —, 2008 WL 123801 (2008). Kennedy wrote the opinion, joined by all the conservatives, and Stevens wrote a dissenting opinion, joined by Souter and Ginsburg. Breyer recused himself from the beginning because of stock he owns. Roberts initially did, but I guess he sold his stock so he could be part of the opinion. On to the opinion itself:

Investors (led by Stoneridge Investment Partners) sued a cable company (Charter Communications, Inc.), its executives, its independent auditor (Arthur Andersen, poor souls), and the company’s vendors and customers. The investors said the company made sham transactions that inflated its reported revenues and cash flow. The investors wanted the customers and suppliers to be liable for the sham transactions they agreed to. Scientific-Atlanta and Motorola were suppliers and then customers of Charter.

The Court assumed that Arthur Andersen had been misled, though it made no controlling decision on that point. Id. at *3. That’s good for Arthur Andersen, at least. Charter entered into a deal with both Scientific-Atlanta and Motorola to pay more for digital cable converters that it purchased from them, and they would then buy advertising (at higher prices) from Charter. Id. Charter drafted documents to mislead Arthur Andersen in its transactions with Motorola and Scientific-Atlanta and make it appear that the transactions were unrelated by backdating the purchase agreements to a month before the advertising agreements. Id. Charter showed an increase in revenue and cash flow of $17 million, which it reported to the SEC and the public. Id. The investors said Scientific-Atlanta and Motorola had a duty to disclose the transactions. Id. at *4.

The Court had previously held that, when suing for deceptive practices in the selling of securities, liability does not extend to aiders and abettors. Id. at *5 (citing Central Bank v. First Interstate Bank, 511 U.S. 164, 177 (1994)). The idea was that a company had to make statements or actions that the plaintiff directly relied upon before there could be any liability. Id. The Court decided in this case that, because “[n]o member of the investing public had knowledge, either actual or presumed, of [Scientific-Atlanta’s or Motorola’s] deceptive acts during the relevant times,” the investors “cannot show reliance upon any of [those] actions except in an indirect chain . . . too remote for liability.” Id. at *6. The Court did point out that secondary actors (including aiders and abettors) can be subject to criminal penalties and civil enforcement by the SEC, but that there is not always a private right of action against those secondary actors. Id. at *11.

In the dissent, the liberals were rather vehement about the majority being incorrect. Stevens wrote that the actions of Scientific-Atlanta and Motorola “had the foreseeable effect of causing [the investors] to engage in the relevant securities transactions.” Id. at *13. The majority, in stark contrast to this, requires an action that makes it “necessary or inevitable” for the issuer to deceive as it did. Id. at *7. This is the really interesting point of contention to me.

Should we hold people and companies to a high standard of morality in business practices? Every action has a foreseeable effect, usually many foreseeable effects, but being foreseeable does not make an effect inevitable. I’ve been analogizing a lot of situations to raising children lately, although I have no experience with that, so here’s another one: If your child asked for $10 to buy a birthday present for a friend, and you knew that what your child wanted to buy really cost $5, and you suspected your child wanted the $10 to spend the extra money on something you disapproved of, would you be at fault by giving your child $10? Giving a child more money than you suspect is necessary may have the foreseeable effect of your child spending it on something you disapprove of, but it’s not an inevitable effect. If children can choose what to do with their money, shouldn’t corporations be able to choose as well? We cannot be responsible for the bad things other people do unless we are directly involved. That may not apply to criminal law very well, but I do think that in this time where independence is valued more than most other things, we cannot treat people, or companies, as a community that is collectively responsible for the faults of one when it is convenient.