Title IX: Fair Campus, Foul Weather

Or, maybe not.

With Education Secretary Betsey Devos much in the news  over possible changes to the Dear Colleague letter promulgated by the DOE’s Office of Civil Rights, this note by me and my Lightfoot colleagues  Brandon Essig and Clint Speegle in University Business is timely:

High-profile lawsuits, OCR investigations and new congressional legislative interest have all conspired to mean that colleges and universities ignore the Dear Colleague situation to their peril. Unlike the disciplinary process for a cheating scandal, the resolution of a sexual assault case is a classic “parallel-proceedings” scenario.

At any moment there may be an administrative proceeding (by the university), as well as a criminal investigation (by external law enforcement) and potential civil lawsuits by either the accuser or the respondent. In the university disciplinary context, parallel proceedings raise at least two often troubling—and sometimes disastrous—special issues.

Read the full article here.

More articles by Sharman. Thank goodness.

We have written extensively before about Title IX here.  It’s a topic not likely to go away soon.


Lauren Bacall and The Big Sleep: Film Noir Cool, White Collar Crime, Cocktail Cold

Lauren Bacall

Lauren Bacall

To the extent that it reflected crime, Lauren Bacall’s work was noir, not white-collar; black, not white; guns, not accounting fraud.  Yet, there was an elegance and a fierceness about her films – especially those with Humphrey Bogart – that are familiar to those who work in a white-collar crime landscape.

David Brooks, writing in the New York Times, reflects on The Bacall Standard.  In particular:

[Raymond] Chandler was not particularly kind to women, though. It was up to the director Howard Hawks and his star, Lauren Bacall — who died this week — to give that era a counterpart female ideal, a hero both tough and tender, urbane and fast-talking, but also vulnerable and amusing.

Vivian Rutledge, the lead female character in the movie version of Chandler’s “The Big Sleep,” is stuck in a classic film noir world. Every situation is confusing, shadowed and ambiguous. Every person is dappled with virtue and vice. Society rewards the wrong things, so the ruthless often get rich while the innocent get it in the neck.

The lead character, played by Bacall, emerges from an ambiguous past, but rises aristocratically above it. She has her foibles; she’s manipulative and spoiled. But she’s strong. She seems physically towering, with broad shoulders and a rich, mature voice that is astounding, given that Bacall was all of 20 years old when she made the picture.

We’ve written about Chandler before: Browning (The Poet, Not The Automatic).  Speaking of Chandler’s dialogue in The Big Sleep (both the book and the film), Brooks notes:

The heiress greets Marlowe with a put-down: “So you’re a private detective. I didn’t know they existed, except in books, or else they were greasy little men snooping around hotel corridors.”

But he’s self-sufficient enough to stand up to her. He wins her over with a series of small rejections. And he can match her verbal pyrotechnics. When she says she doesn’t like his manners, he comes straight back at her: “I’m not crazy about yours. … I don’t mind if you don’t like my manners. I don’t like them myself. They’re pretty bad. I grieve over them long winter evenings.”


Here is a detailed Becall piece from The Rap Sheet, an excellent crime-fiction blog.  An excerpt:

A former theater usher and fashion model, Bacall first came to prominence in 1944, when, at age 19, she starred with 44-year-old Humphrey Bogart in To Have and Have Not, a film based loosely on Ernest Hemingway’s 1937 novel of the same name. Her famous double entendre-laced line, delivered to a smoking, reclining Bogie–“You know how to whistle, don’t you, Steve? You just put your lips together and … blow”–knocked out movie-going audiences everywhere, and had no less impact on Bogart himself. At the time he was already on his third marriage, to actress Mayo Methot, but he divorced her the next year to wed Bacall, or “Baby” as he called her. The pair were together only until his death in 1957, but if Bogie’s ghost is still anywhere around today, he’s whistling for her to join him today.

Ghosts.  Noir fiction and films worked on many levels, not least the theological (as we discussed in Red Harvest: Crime Fiction and Gospel Conviction).   And, at their best, they are art, as Chandler wrote in The Simple Art of Murder:

In everything that can be called art there is a quality of redemption. It may be pure tragedy, if it is high tragedy, and it may be pity and irony, and it may be the raucous laughter of the strong man. But down these mean streets a man must go who is not himself mean, who is neither tarnished nor afraid. The detective in this kind of story must be such a man. He is the hero, he is everything. He must be a complete man and a common man and yet an unusual man. He must be, to use a rather weathered phrase, a man of honor, by instinct, by inevitability, without thought of it, and certainly without saying it. He must be the best man in his world and a good enough man for any world. I do not care much about his private life; he is neither a eunuch nor a satyr; I think he might seduce a duchess and I am quite sure he would not spoil a virgin; if he is a man of honor in one thing, he is that in all things. He is a relatively poor man, or he would not be a detective at all. He is a common man or he could not go among common people. He has a sense of character, or he would not know his job. He will take no man’s money dishonestly and no man’s insolence without a due and dispassionate revenge. He is a lonely man and his pride is that you will treat him as a proud man or be very sorry you ever saw him. He talks as the man of his age talks, that is, with rude wit, a lively sense of the grotesque, a disgust for sham, and a contempt for pettiness. The story is his adventure in search of a hidden truth, and it would be no adventure if it did not happen to a man fit for adventure. He has a range of awareness that startles you, but it belongs to him by right, because it belongs to the world he lives in.

David Brooks gets the next-to-last word:

The feminine ideal in “The Big Sleep” is, of course, dated now. But what’s lasting is a way of being in a time of disillusion. At a cynical moment when many had come to distrust institutions, and when the world seemed incoherent, Bacall and Bogart created a non-self-righteous way to care about virtue. Their characters weren’t prissy or snobbish in the slightest. They were redeemed by their own honor code, which they kept up, cocktail after cocktail.

 

Speaking of cocktails.

Speaking of cocktails.

In the scene from The Big Sleep with the bookshop girl (played by Sonia Darrin), Bogart mentions that he has a bottle of rye in his pocket:

For some background on rye, an article from The AtlanticHow Rye Came Back.

In Bacall’s memory, here’s a recipe for a rye Manhattan.  Have one tonight.

Noir or white-collar, it's the rye Manhattan.

Noir or white-collar, it’s the rye Manhattan.


Impeachment Lessons and The Midnight Special

(1973-1981)

This post will eventually test your affinity for the 1970s, which featured both Richard Nixon and The Midnight Special. The Special was formative in my teenage years, which explains a great deal.

But first, many thanks to the Network of Trial Law Firms for the opportunity to speak in New York on “Impeachment Lessons for Internal Investigations”:

People sometimes ask for good basic texts about impeachment generally.  Here are a few suggestions:

Impeachment: A Handbook by Charles Black.  This slender, clear, nuanced volume is where you should start. As noted by Lawfare blog:

The most important book ever written on presidential impeachment is only 69 pages long. Charles Black, Jr.,’s Impeachment: A Handbook was published in the summer of 1974, at the height of the Watergate crisis, and reissued in October 1998, two months before Bill Clinton became the second president in U.S. history to be impeached.

Read the full post here.

Impeachment: The Constitutional Problems by Raoul Berger.  From the Amazon review:

The little understood yet volcanic power of impeachment lodged in the Congress is dissected through history by the nation’s leading legal scholar on the subject. Berger offers authoritative insight into “high crimes and misdemeanors.” He sheds new light on whether impeachment is limited to indictable crimes, on whether there is jurisdiction to impeach for misconduct outside of office, and on whether impeachment must precede indictment. In an addition to the book, Berger finds firm footing in contesting the views of one-time Judge Robert Bork and President Nixon’s lawyer, James St. Clair.

Presidential Impeachment by John Labovitz.  From the Yale University Press blurb:

In this thorough and thoughtful examination of the constitutional issues involved in the impeachment of a president, Labovitz, a lawyer who served on the impeachment inquiry staff of the House Judiciary Committee in 1974, incorporates the Nixon experience into American history over the last two hundred years.

High Crimes and Misdemeanors by Howard Fields, a UPI reporter.  Not the best on this list, but useful.

An Affair of State by Judge Richard A. Posner.  From the Harvard University Press description:

President Bill Clinton’s year of crisis, which began when his affair with Monica Lewinsky hit the front pages in January 1998, engendered a host of important questions of criminal and constitutional law, public and private morality, and political and cultural conflict.

In a book written while the events of the year were unfolding, Richard Posner presents a balanced and scholarly understanding of the crisis that also has the freshness and immediacy of journalism. Posner clarifies the issues and eliminates misunderstandings concerning facts and the law that were relevant to the investigation by Independent Counsel Kenneth Starr and to the impeachment proceeding itself. He explains the legal definitions of obstruction of justice and perjury, which even many lawyers are unfamiliar with. He carefully assesses the conduct of Starr and his prosecutors, including their contacts with the lawyers for Paula Jones and their hardball tactics with Monica Lewinsky and her mother. He compares and contrasts the Clinton affair with Watergate, Iran–Contra, and the impeachment of Andrew Johnson, exploring the subtle relationship between public and private morality. And he examines the place of impeachment in the American constitutional scheme, the pros and cons of impeaching President Clinton, and the major procedural issues raised by both the impeachment in the House and the trial in the Senate. This book, reflecting the breadth of Posner’s experience and expertise, will be the essential foundation for anyone who wants to understand President Clinton’s impeachment ordeal.

Pointing the way.

For hardcore constitutional analysis, your bookshelf should also contain Constitutional Grounds for Presidential Impeachment, the 1974 volume by the staff of the House Judiciary Committee with regard to President  Nixon.

Finally, to get the weekend started, nothing is better than The Emotions and “Best of My Love”:

 

 


Gin Van, Joan Collins and Rare Earth

Friday is upon us, so a few notes about cocktails.

Blue Hawaiian, anyone?

The cocktail snob is suffering a (deserved) backlash, as Robert O. Simonson of the New York Times points out in When Bad Drinks Go Good:

Just as the cocktail renaissance has brought renewed fame to classics like the martini, the Manhattan and the Negroni, it has heaped fresh infamy on a rogues’ gallery of less classy concoctions, most of which emerged during the final decades of the last century.

Now a backlash of sorts has begun, as some high-end bartenders apply their skills to a new challenge: doing bad drinks well.

Bars like Holiday Cocktail Lounge in New York; Pépé Le Moko in Portland, Oregon; and the Automatic in Cambridge, Massachusetts, where the martini shares space on the menu with a blue margarita, have risen to this curious challenge.

Whenever I see the Blue Hawaiian cocktail, which is not often, I compusively think of Elvis in Blue Hawaii (1961):

Superb sash.

Two by two.

The martini is not a complex drink.

Mercifully, this article keeps the options simple:

The cocktail world is divided into two camps: those who order martinis and those who don’t. And for those who don’t, it may be because they just haven’t found their best martini yet.

There are many different ways to mix this cocktail, and there’s a recipe out there for everyone ― you just have to know what to ask for when you stroll up to the bar. 

Classically, a martini is one part dry vermouth to four parts gin. But that recipe is not set in stone ― here are eight different ways you can order the cocktail. Figure out what’s right for you and have a better happy hour.

Read the entire article: How To Order A Martini Like A Total Pro.

Gin van (New World Trading Company)

A great concept from the United Kingdom: a mobile gin van:

Forget hosting a BYOB gathering, you can now pay for a mobile gin van to deliver delicious drinks straight to your party. The catch is that you can’t have the van, called The Wanderer, on speed dial for a quick drink or two.

Instead, the van, created by New World Trading Company (NWTC), has to be hired as a fully-kitted mobile bar, so it’s more suitable for weddings and big celebrations than your average house party.

Still, dedicated gin fans may be tempted to club together for an extravagant Saturday night after hearing what the van offers.

Read the article by Rachel Moss: This Mobile Gin Van Will Deliver Cocktails Straight To Your Party (But There’s A Catch).

From the UK’s Daily Mail, an article on retro drinks and the current popularity of bitter drinks (the Negroni) and ingredients (such as Campari, Cinzano and Aperol):

Speaking about the new trend, John Vine, drinks buyer at Waitrose, said: ‘Bitter notes can be refreshing and act as a foil to sweetness , the right balance makes for the perfect cocktail.’

His comments correspond with data from the store, which shows a thirty five per cent sales increase in sales of Cinzano, which is perhaps best known for its placement in the iconic TV advert featuring Leonard Rossiter and Joan Collins.

I am a fan of bitter cocktails and have written previously about the Negroni.  Such drinks reflect, in some ways, this vale of tears through which we pass.

Failing to recall the “iconic TV ad,” I looked it up:

Outstanding.  According to the Campari corporate website:

Rated 11th best TV commercial of all time, the most famous Cinzano TV ads were those of Leonard Rossiter and Joan Collins during the 1970s. The infamous couple engaged in 10 unforgettable slapstick sketches that always ended in Rossiter pouring a glass of Cinzano on a progressively more resigned Joan Collins.

Here is another one, this time about rose.

The Gin Corner

Rose be damned.  I am partial to gin.  Spaniards apparently take their gin and tonic seriously:

“In Spain, gin-tonic is not just a cocktail, 
it is an obsession,” says José Andrés. Here’s everything you need to know to nail this iconic drink at home—and six places in the States with excellent G&T options.

  • In Spain, fresh herbs (lemon verbena, rosemary or lavender), 
lemon peel, juniper berries, edible flowers and even whole spices are used to enhance the gin’s botanicals.
  • Spanish bars stock as many as 50 different gins. Our choice: a London dry style. José’s two favorites: Rives Special Premium Tridestilada from Andalusia and Xoriguer Gin de Mahón from Menorca.
  • Amplify the aroma of the 
gin and the garnishes with a large wine glass or goblet.
  • Big ice cubes keep your gin-tonic chilled without watering 
it down.
  • Look for tonic made with cane sugar or agave (not high-fructose syrup), such as Q, Fever-Tree or Fentimans, for 
a balanced mix 
of sweetness 
cut with quinine bitterness.

In particular, I endorse lemon (rather than lime); lots of ice (most G&Ts are insufficiently cold); and high-quality, non-syrupy tonic.

Read the full article here: How to Make the Perfect Gin and Tonic, According to José Andrés.

Also, from the Boston Globe, a recipe-filled article for new gin cocktails from New England distillers.

The Joy Division (via Liquor.com)

Finally, here is a recipe for the Joy Division cocktail.  This may be worthy of a try: at times, I will rinse the inside of a martini glass with absinthe, which manages to simultaneously slow down and speed up the gin.

I know little of the post-punk English band from which the cocktail takes its name, although one of my favorite crime writers, Ian Rankin, used the title of one of their songs for a book title.

More to my taste, and to start you into your weekend, is Rare Earth’s 1970 version of “Get Ready”:

Preview (opens in a new window)


White-Collar Motive, Gun Crazy Movie

Gun Crazy (1950)

In 1950, producers Frank and Maurice King released Gun Crazy, a sometimes surreal Bonnie-and-Clyde story with an introverted, pacifist gun lover (Barton Tare, played by John Dall) and an English femme fatale sharpshooter  (Annie Laurie Starr, played by Peggy Cummins).  Carried forward by his lust for and fascination with Annie, the non-violent Bart — without thinking or planning — becomes a robber and, eventually, an accessory to murder.

A classic American film noir, Gun Crazy has merited a book (Eddie Mueller’s Gun Crazy: The Origin of American Outlaw Cinema) and much commentary by film buffs.  It also gives us insight into a common question in white-collar cases: “Why did he [or she, but usually he] do it?”

The question of motive in white-collar cases is not an idle one but, rather, has implications for how prosecutors charge; how juries hear evidence; how defense lawyers defend; and how judges sentence.

But first, a little about this very strange, very cool movie.

The most famous scene is the bank robbery, which is one, long 7-minute shot.  It’s long, so you may want to come back to it:

 According to Wikipedia:

The bank heist sequence was shot entirely in one long take in Montrose, California, with no one besides the principal actors and people inside the bank alerted to the operation. This one-take shot included the sequence of driving into town to the bank, distracting and then knocking out a patrolman, and making the get-away. This was done by simulating the interior of a sedan with a stretch Cadillac with room enough to mount the camera and a jockey’s saddle for the cameraman on a greased two-by-twelve board in the back. [The director] kept it fresh by having the actors improvise their dialogue.

In other words, when actor John Dall hopes aloud that there is parking place, he isn’t kidding: other than the people inside the bank, nobody knew that there was a movie being made or a bank robbery about to be staged, and no parking space had been reserved.

And what is the point of this for us white-collar readers?

The point is that almost nobody starts out to be a white-collar offender, any more than Bart starts out to be a bank robber.  People rarely say on Monday: “Note to self – commit mail fraud by the end of the week.”  The question is less one of “intent” and more one of “motive.”

Academic analysis bears upon the question of motive in ways inconsistent with popular thinking.  Consider Harvard Business School professor Eugene Soltes, from the introduction to his fine volume Why They Do It: Inside the Mind of the White-Collar Criminal (2016):

Many people, federal prosecutors, scholars, and media commentators claim that executives make decisions, including criminal ones, through explicit cost – benefit calculation.  Although such deliberate reasoning is consistent with the way many business decisions are made, this exclamation seems that odds with how these former leaders made the choices that eventually led them to prison.  Mini we’re not mindfully weighing the expected benefits against the expected costs. If they had been, even the remote chance of being caught and sent to prison, upending their otherwise comfortable lives, would have weighed heavily on their conscience.  But I didn’t see this. Instead, I found that they expanded surprisingly little effort deliberating the consequences of their actions. They seem to have reached their decisions to commit crimes with little thought or reflection. In many cases, it was difficult to say that they had ever really “decided” to commit a crime at all.

Business crime?

Soltes goes on to say later in the book:

The prevailing ideas around reducing white – collar criminality rely on the assessment that executives are reasoning and calculative when they decide to commit and illegal act.

The emphasis on viewing cost – benefit analysis as a psychological model of choice rather than as simply a description of behavior has led to a particular notion of why once successful and intelligent executives commit white – collar crime long – namely, that these executives make thoughtful and deliberative calculations to break the law when doing so serves their needs and desires.  They are not making hasty decisions with clouded judgment.  Their personal failure lies in reasoning that the illicit choice is the ” appropriate” one.

 [T]he trouble with this theory is that it doesn’t seem to match especially well with how executives who engage in white-collar crime actually think.

Why does this matter?

After all, many people (and almost all prosecutors) would argue that the “why” of things does not matter in the criminal context.  In other words, they say, although “intent” is relevant, “motive” is not.  The only important question, under this approach, is whether the person charged had sufficient “culpable intent” or a “guilty mind.”  Under this view, “motive” is neither inculpatory nor exculpatory, even though the Federal Rules of evidence do allow, under certain circumstances, evidence to be admitted as proof of motive.  (Consider Federal Rule of Evidence 404(b), which allows bad acts to be offered as evidence of motive).

But motive does matter.  It matters for charging decisions.  It matters for how juries hear evidence in the courtroom and how lawyers speak with them.  And it matters for sentencing.

Closed-door proceedings.

Charging Decisions

Prosecutors have discretion, as they should, with regard to whom to charge (and for what).  If the cost-benefit model that Soltes describes is the governing lens through which a charging decision is made, then it is reasonable to expect that there will be over-charging (or at least more aggressive charging) as compared to an approach that, in a more nuanced fashion, appreciates the way business people actually make decisions.  If I believe that your action is the result of a careful, cold cost-benefit analysis, I will conclude, other things being equal, that a more serious charge is due.  As you sow, so shall you reap.

On the other hand, if I understand that rather than cost-benefit analysis what I am seeing is something more akin to business negligence, I may reasonably decide that a less serious charge (or no charge at all) is due. In Soltes’s words, if what I as the prosecutor see is “little effort deliberating the consequences of [one’s] actions,” I may think differently: after all, negligence, even gross negligence, is not normally the province of the criminal courts.

Maybe a cutaway would help.

How Juries Hear

Motive colors the jury’s intake of evidence, and the prevailing zeitgeist of cost-benefit analysis works against the presumption of innocence (itself a largely extinct species, as I have discussed here and here and here.

Why is this so?

Distrust of business — and especially of large organizations, global institutions and the financial-services industry — is high among jurors across multiple demographics and political orientations.  The caricature of the cold, calculating “fat cat” businessperson fits neatly with popular suppositions — and, sometimes, conspiracy theories — about business and finance.  No amount of pretrial questionnaires or voir dire can address these deep-seated concerns with any regular success.  At trial, the Government understandably seeks to tap into these veins of distrust and fear.  And, once the jury hears at least some evidence confirming its initial biases, it is almost impossible, even for the most skilled defense lawyer, to turn them around.

On the other hand, if the jury rejects “cost-benefit” assumptions and believes that, in general, most white-collar defendants are not “reasoning and calculative” when they act (Soltes again), two things may happen.

First, the near-extinct presumption of innocence may be revived.

Second, if even some members of the jury conclude that the defendant was mindless (or just stupid), the chances increase that evidence offered by the Government will be examined more critically.

Just do the math.

Sentencing

If cost-benefit analysis is a religion in white-collar cases, the fraud tables and the concept of “loss” in the federal Sentencing Guidelines constitute its liturgy.  Were we to adopt a more realistic understanding of business decisionmaking in the context of white-collar offenses, we would reconsider the content and deployment of at least portions of the Guidelines.

The loss table in USSG 2B1.1.(b) is just math, a form of cost-benefit bracketing. The table attempts to impose a “cost” to a victim that it considers (or the Sentencing Commission considers) commensurate with a defendant’s “benefit.”

Laypersons are always surprised to learn that “loss” under the Guidelines does not mean “loss.”  In fact, “loss” can mean “no loss.”  (The dollar amount of loss to someone that the court believes the defendant “intended” to cause can be sufficient, even if there is no actual dollar loss to anyone). In a cost-benefit analytical regime, this idea of notional loss may be tolerable: we assume a calculation on the part of the business defendant and thus are more willing to accept a notional loss.

A more realistic view of business decisonmaking would go a long way towards restoring balance is an unbalanced white-collar system.

And, even if you disagree with me, you really should watch Gun Crazy.

Perhaps, like Annie, we all just “want things, a lot of things, big things.”  The question is: When do we go to prison for it?

 


Search Warrants and Russia Raids

Look sharp, feel sharp.

The execution of a search warrant on a residence owned by Paul Manafort, President Trump’s former campaign director, raises some interesting questions.  Search warrants are rarely necessary in white-collar cases, yet their use seems to be more and more common.

Here was my take on Brian Williams’s MSNBC show The 11th Hour:

As I told Michael Schmidt of the New York Times:

“A search warrant is very bracing for the person who is being searched,” said Jack Sharman, the former special counsel to the House Banking Committee during its Whitewater investigation of President Bill Clinton in the 1990s. “It’s very invasive and sends a loud statement from the prosecutors to the person that there should be no doubts about the seriousness of the investigation.”

“The government will be investigating something like public corruption, and it knows that you know something about it,” said Mr. Sharman, now a white-collar criminal defense lawyer at Lightfoot, Franklin & White. “The government will then come after you on something unrelated, where you have criminal exposure, in the hopes that you will cooperate on their public corruption investigation.”

Read the full article here.

And here, for Amber Phillips of the Washington Post:

He’s also the perfect target to send a message to the rest of Washington that the special counsel investigation means business, said Jack Sharman, a white-collar lawyer in Alabama and former special counsel for Congress during the Bill Clinton Whitewater investigation.

“One purpose of such a raid is to bring home to the target the fact that the federal prosecution team is moving forward and is not going to defer to or rely on Congress,” he said.

Read the entire article here.

Finally, for all you Grateful Dead fans, I have written about search warrants before and provided additional compelling video: Subpoenas, Search Warrants and the Dead.

The video (with less gray hair and longer tie) is here:

 

 


Summer Crime, “Young Lawyers,” Martinis

Casual Friday.

Summer’s heat is fully upon us.  Let us take a moment for crime fiction and cocktails.

For recent crime-fiction releases, take a look at Midmonth Book Notes  from The Poisoned Pen bookstore.

Also, here is a useful “review of reviewers” from The Rap Sheet blog.  And, for the visually-oriented, The Rap Sheet has a YouTube channel.  One clip I found there was for a show called “The Young Lawyers,” which ran from 1969 to 1971 and which I vaguely recall.  As described by IMDb:

David Barrett [a young-looking Lee J. Cobb] heads an organization in Boston that supports poor and indigent clients with the aid of young lawyers, Aaron Silverman is the young idealist, Pat Walters is the black street-smart lawyer and Chris Blake is the WASP added to balance the cast.

The opening credits are outstanding, and show some sharp dressing across Harvard Yard:

 

Management course?

Inasmuch as White Collar Wire focuses on white-collar crime, this post by J. Kingston Pierce (the publisher of The Rap Sheet) about “business” in crime-novel titles fits well:

While contemplating the imminent release, in late July, of Killing Is My Business (Tor), Adam Christopher’s second novel in his speculative-fiction/crime-fiction series starring steely eyed, tough-talking robot private investigator Raymond Electromatic, I got to thinking about how many other imaginative yarns based in the realm of crime and corruption have included the word “business” in their titles. At least a good handful, it seems.

Plus, the book-covers are outstanding.

Better late than never, I came across Tipping My Fedora, a detective-fiction, all-media blog which has some fine entries.

 

Not casual Friday.

As long as we are on the subject of books, my favorite photo-book on the martini is The Martini: An Illustrated History of an American Classic by Barnaby Conrad III.  From the Amazon review:

A chilled, crystal glass; the purest gin; a touch of dry vermouth–vigorously shaken, not stirred–and a plump, green olive. The martini was and still is more than just a cocktail. Originally mixed in the nineteenth century, it became an American icon in the twentieth, and the favorite drink of such luminaries as Franklin D. Roosevelt, Winston Churchill, Jack London, and Ernest Hemingway. Bernard De Voto called the martini “the supreme American gift to world culture,” while H. L. Mencken declared it “the only American invention as perfect as a sonnet.”

The first book of its kind to explore the drink’s wide appeal, this volume serves up a fabulous cocktail of martini-inspired art, cartoons, collectibles, advertisements, and film stills that reveal how deeply this classic has permeated every aspect of American culture, from literature and film to politics and high society. Complete with bartending lore, traditional martini recipes, literary excerpts, memorable scenes from James Bond movies, and more, The Martini offers a toast to this intoxicating symbol of the American dream.

Bernard DeVoto.

For a mature understanding of the martini, however, there is no peer to The Hour: A Cocktail Manifesto by critic Bernard DeVoto (1897-1955).  The Amazon review:

One part celebration, one part history, two parts manifesto, Bernard DeVoto’s The Hour is a comic and unequivocal treatise on how and why we drink―properly. The Pulitzer Prize and National Book Award–winning author turns his shrewd wit on the spirits and attitudes that cause his stomach to turn and his eyes to roll (Warning: this book is NOT for rum drinkers). DeVoto instructs his readers on how to drink like gentlemen and sheds new light on the simple joys of the cocktail hour. Daniel Handler’s introduction to this reprint of the 1950s classic provides a humorous framework for the modern reader.

The Hour is to the martini as The Elements of Style is to composition.  DeVoto hated olives (lemon twist instead) and railed against shaking (preferring the stirred martini, as do I).  People will call all sorts of messes a “martini,” but in these days of alleged “fake news” we do well to remember that a martini is a stirred gin cocktail.

 


Booze Beats Law: Subscribe to White Collar Wire

Please take a moment to subscribe to White Collar Wire’s email newsletter.  You’ll get notice of articles before anyone else in the Western world.

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Just push the little button, son.

If you are a mission-statement type, here’s ours:

This is a blog about business crime.  We post stories about news, cases, judicial opinions, practical tips and scholarly work regarding white-collar criminal and civil enforcement, grand jury investigations and regulatory compliance.  We want to be useful to businesspeople, internal counsel, defense lawyers in private practice, prosecutors and law-school teachers.

Sometimes, we write about crime fiction, cocktails and theology.  As anyone who’s ever been involved in the defense or prosecution of a white-collar case can testify, all three come in handy.

Don’t read us because you’re a criminal.  Read us because, some time or other, someone may think you are.

You’ll get articles about lots of subjects.

Definitions first.

I would like you to believe that the thoughtful law-and-policy posts get the most views.

Do not be over-served.

In truth, the metrics say that it’s the cocktail articles that get the most readers.

In any event, here’s what you might see:

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13 Books Every White-Collar Lawyer Should Read

Of the making of lists of books, there shall be no end. Nevertheless, here is one more.

Set out below are 13 works that every white-collar lawyer – defense counsel, prosecutor or judge – should read.

Why take on such a presumptuous project? Three good reasons.

First, lists start conversations. Although law is (or was) a “learned profession,” relatively few lawyers in my experience have read broadly or deeply since college.  The press of work does not allow otherwise.  Our professional learning is utilitarian, narrow, cramped and quickly (or gratefully) forgotten.

Second, the proponent of such a list (that is, me) must review, reconsider or even reread works first encountered years or decades in the past. If the list does not help you, it may help me.

Third, the list makes us think why it is, exactly, we do what we do. The usual concepts – justice, productivity, money, honor – are not well-explored in the day-in, day-out of law practice.

A few caveats are in order.

First, this is a personal, idiosyncratic (or eccentric) list. If you want a survey course, go to a community college.

Second, I have made little effort to be “fair,” at least at that term is understood politically today. I have not tried to equally represent time periods, genres, genders or ethnicities. I realize that the list is populated with white males, most of whom are dead or will be soon. Could someone make a list of 13 books written by others? Very much so, and more power to them.

Third, a great many books are not eligible by my own fiat for this list. How so?

I have excluded all biographies and autobiographies of lawyers, even though there are some superb ones. Two that come to mind, for example, are Evan Thomas’s The Man To See (1992) (about Edward Bennett Williams) and Louis Nizer’s  My Life In Court (1961).

I have also excluded all how-to books, even though there are a number of excellent ones.  My favorite is Herbert J. Stein and Stephen A. Saltzburg’s Trying Cases to Win (2013) (one volume).

There is a lot of dreck written about white-collar criminals and the white collar “mind,” and it was for the most part a pleasure to exclude that sub-genre. Nevertheless, there are some admirable works including, very recently, Harvard Business School professor Eugene Soltes’s Why They Do It  and Duke professor (and former Enron prosecutor) Sam Buell’s Capital Offenses.

Like the poet Dante, you have been warned before you enter the gates. Let us turn to 13 books that every white-collar lawyer should read.

 

A short Gitane, no? A big retainer, yes?

Albert Camus, The Fall | Best known for The Stranger, French novelist Albert Camus (1913-1960) careens in and out of literary fashion.  Admittedly, French existentialism is sometimes little more than navel-gazing with bad breath, but Camus at his best is incandescent (and, at his worst, is far better than Stalinist puppets like Jean-Paul Sartre and Simone de Beauvoir).

The Fall (1956) is narrated by a disgraced lawyer sitting in a Dutch bar. His insights into how we fall from grace and face daily judgment are dark but powerful.

Good vision.

F. Scott Fitzgerald, The Great Gatsby | There is only a little bit of crime in The Great Gatsby (1925) : Jay turns out to be in the “numbers racket,” and Myrtle is the victim of vehicular homicide. The compelling white-collar aspect of this greatest of 20th-cntury American novels is its study of money and power, as the narrator, Nick Carraway, sets out in the opening:

When I came back from the East last autumn I felt that I wanted the world to be in uniform and at a sort of moral attention forever; I wanted no more riotous excursions with privileged glimpses into the human heart. Only Gatsby, the man who gives his name to this book, was exempt from my reaction — Gatsby, who represented everything for which I have an unaffected scorn. If personality is an unbroken series of successful gestures, then there was something gorgeous about him, some heightened sensitivity to the promises of life, as if he were related to one of those intricate machines that register earthquakes ten thousand miles away. This responsiveness had nothing to do with that flabby impressionability which is dignified under the name of the “creative temperament.”— it was an extraordinary gift for hope, a romantic readiness such as I have never found in any other person and which it is not likely I shall ever find again. No — Gatsby turned out all right at the end; it is what preyed on Gatsby, what foul dust floated in the wake of his dreams that temporarily closed out my interest in the abortive sorrows and short-winded elations of men.

Witness statement.

Saint Paul, Letter to the Romans | On the road to Damascus, Saul famously became Paul.  The most powerful of the Pauline letters is the one he wrote to the new Christians living in Rome.  Even for the non-Christian or the secular, his analysis of law and grace is unparalleled, especially in chapter 7:

15 For I do not understand my own actions. For I do not do what I want, but I do the very thing I hate. 16 Now if I do what I do not want, I agree with the law, that it is good. 17 So now it is no longer I who do it, but sin that dwells within me. 18 For I know that nothing good dwells in me, that is, in my flesh. For I have the desire to do what is right, but not the ability to carry it out. 19 For I do not do the good I want, but the evil I do not want is what I keep on doing. 20 Now if I do what I do not want, it is no longer I who do it, but sin that dwells within me.

21 So I find it to be a law that when I want to do right, evil lies close at hand. 22 For I delight in the law of God, in my inner being, 23 but I see in my members another law waging war against the law of my mind and making me captive to the law of sin that dwells in my members. 24 Wretched man that I am! Who will deliver me from this body of death? 25 Thanks be to God through Jesus Christ our Lord! So then, I myself serve the law of God with my mind, but with my flesh I serve the law of sin.

In our own law practices, we may ask of ourselves what we seek to understand about our clients:  Who do we serve with our mind, and who do we serve with our flesh?

Time to do a deal.

Scott Turow, Personal Injuries | As a novelist of popular law-oriented contemporary fiction, Turow towers over most others. His 1999 novel Personal Injuries is agonizing (and agonizingly familiar to white-collar lawyers) in its description of lawyer Robbie Feaver’s downfall.  As Publishers Weekly noted at the time:

Unlike most of his fellow lawyer-novelists, Turow has always been more interested in character than plot, and in Robbie Feaver, a lawyer on the make who ends up fighting for his life, he has created his richest and most compelling figure yet. For years, Robbie has been paying off judges and squirreling away part of the riches he earns as a highly successful trial lawyer. When the IRS happens upon the money trail, and a top prosecutor leans on him to turn state’s evidence and finger some of the corrupt justices, Robbie calls on George Mason, veteran Kindle County lawyer, to represent him and win the best deal he can. A complicating element in the case is Evon Miller, Mormon-born FBI agent in deep undercover, who is assigned to watch Feaver and finds herself, against her better inclinations, drawn to him–for Feaver is a character of almost Shakespearean contradictions. A charming, brash womanizer who nevertheless shows superhuman reserves of love and patience to his dying wife at home, he is always several jumps ahead of the prosecutors, the FBI and the reader, winning sympathy, even admiration, where there should be none.

Read the full review here.

Paging Captain Jean-Luc Picard.

William Shakespeare, Macbeth | There are lots of lawyers, law-language and legal proceedings in Shakespeare’s work, but for the white-collar lawyer there is no match for Macbeth. Its themes of power, overreach, ambition and guilt form part of the Western consciousness and are timeless:

Will all great Neptune’s ocean wash this blood clean from my hand? No, this my hand will rather the multitudinous seas incarnadine, making the green one red.

(Macbeth 2.2.57-60 — otherwise known as a Fed.R.Crim.P. 11 “colloquy”).

 

Beach reading. Russian beach.

Fyodor Dostoyevsky, Crime and Punishment | What, exactly, to say about  Crime and Punishment (1866)? As noted by translator David McDuff:

Few works of fiction have attracted so many widely divergent interpretations as Crime and Punishment. It has been seen as a detective novel, an attack on radical youth, a study in “alienation” and criminal psychopathology, a work of prophecy (the attempt on the life of Tsar Alexander II by the nihilist student Dimitri Karakosov took place while the book was at the printer’s, and some even saw the Tsar’s murder in 1881 as a fulfillment of Dostoyevsky’s warning), an indictment of urban social conditions in 19th century Russia, a religious epic and a proto – Nietzschean analysis of the “will to power.” It is, of course, all these things – but it is more.

Like all of us, Raskolnikov – the nihilist student who without any real reason kills an old  woman – is guilty of original sin and saved, so to speak, only by suffering. What are the things that bring home to white-collar lawyers the notions of original sin and expiation by suffering?  For me, they may be the first meeting with the client; or the second meeting with the client (when the omissions from the first meeting come out); or the decision to plead or go to trial; or the moment when the jury returns with a verdict.

 

And the good lawyer?

Craig Nova, The Good Son | White-collar lawyers often represent wealthy, powerful men (at least, they hope the people they represent are wealthy).  Nova’s depiction of power and wealth, fathers and sons, is extraordinary.  If anybody needed good counselors, it’s Nova’s white-collar people in The Good Son (1982).

From novelist John Irving’s 1982 review:

Pop MacKinnon – ”a coarse, charming man, a lawyer, and a good one” – wants his sons to follow his path: to be lawyers who know how to hunt and marry well; to be gentlemen who join that unassailable aristocracy which is earned by tough, no-nonsense cleverness and is protected by money. Son John disappoints Pop; he is killed in World War II. So son Chip – a fighter pilot who was shot down in the war but survived as a P.O.W. – becomes the title character of ”The Good Son,” Craig Nova’s fourth novel. In this dark, deep story of a father and son who love (and love to fight) each other, the good son is the one who will defeat, or even kill, his father with the father’s own weapons.

In this exquisitely delineated battle between father and son, both men are consumed and changed; each gets his own way but both victors pay a price. ”When my boys were younger I sent them to Yale,” Pop Mackinnon says, ”because I wanted all the nonsense knocked out of them. A passing appreciation of books and so on, but no more. I wanted my sons to have sensible ideas.” Pop means the law: ”because law is the thing, the most sensible of all, because it works like a boa constrictor, the best of all snakes. My favorite. A boa doesn’t actually squeeze anything. The snake just wraps itself around a man or a lamb or some unfortunate creature and waits for whatever it’s wrapped around to exhale: the boa then takes up the slack. It’s a procedure, and the law is nothing else if it’s not a procedure. You can trust a snake, especially a nice Harvard one, so that’s why, after the war (after having all the nonsense knocked out of him in New Haven) I sent Chip to law school in Cambridge.”

Read the entire review here.

Peter Taylor (1917-1994)

Peter Taylor, “The Gift of the Prodigal” | Taylor was one of the best American short story writers of the 20th century, and “The Gift of the Prodigal” (published in the New Yorker in 1981 and included in Taylor’s 1996 collection The Old Forest and Other Stories) is a jewel. Narrated by an aging widower in Charlottesville, the short story turns the New Testament parable and has the prodigal, his son Ricky — twice-divorced and frequently in trouble with the law or lovers — bringing a gift to the father as none of his other grown children can.

 

L.A. Law it is not.

James Ellroy, The Black Dahlia |  Although Ellroy’s later work is sometimes frenetic and turgid, his earlier works – especially The Big Nowhere (1988) and The Black Dahlia (1987) – are taut, violent, overwhelming portraits of L.A. noir.  The Black Dahlia is based on the 1947 murder of Elizabeth Short in Los Angeles.  There are not many true “white collar” criminals in Ellroy’s early work, but few novelists set out the dark hearts of law-enforcement, prosecutors and defense lawyers better.

 

No need for a jury consultant.

Alexandr Solzhenitsyn, The Gulag Archipelago  | With the demise of the Soviet Union, Solzhenitsyn has receded from the preeminence he had as a dissident, exile, novelist and philosopher in the 1970s.   He was, however, one of the great moral figures of the 20th century. Now condensed into a more manageable one volume, The Gulag Archipelago  (1973) describes the Soviet “gulags” – the prison camps for political prisoners and others – from the very beginnings of the Revolution to the 1950s.  With Communism vanquished, we too often forget what totalitarianism really was. One of its characteristics is the pretense of law used to deprive people of liberty for the benefit of the state.  We in the white-collar world are well advised to not forget the grim fact.

 

Twelve books in one.

John Milton, Paradise Lost | In 1667, John Milton undertook to “justifye the wayes of God to men.”  Rebellion and the fall, heaven and hell, perfect justice and marring sin — all remain as vibrant as they were centuries ago.

 

 

 

T.S. Eliot, Murder In The Cathedral | Murder In The Cathedral  (1935) is a play in verse, not a book, but it made the list anyway.

Not a street crime.

Eliot, one of the great modern poets and the author of “The Waste Land,” deserves to read for this story of the Christmas Eve murder of the Archbishop of Canterbury, Thomas a’ Becket:

Now is my way clear, now is the meaning plain:
Temptation shall not come in this kind again.
The last temptation is the greatest treason:
To do the right deed for the wrong reason.

And, of course, there is the 1964 film Becket with Richard Burton as the Archbishop of Canterbury and Peter O’Toole as King Henry II:

 

Still got pop.

George V. Higgins, The Friends of Eddie Coyle | Nobody in American fiction did the  dialogue of criminals, law-enforcement and lawyers better than George V. Higgins. Higgins, a one-time AUSA in Boston, apparently honed his craft early by listening to thousands of hours of undercover tape recordings.  His first novel, The Friends of Eddie Coyle (1970), is a foundation of contemporary crime fiction.

I have written before about Higgins here . . .

George V. Higgins and the Archeology of White-Collar Crime

and also here . . .

Why Innocent People Plead Guilty: Judge Rakoff, Eddie Coyle, Albert Camus and Sweet Dreams of Oppression

Finally, I would be remiss if we did not watch the the wonderful trailer from the 1973 film starring Robert Mitchum as Eddie Coyle:

Here endeth the reading.

 

 

 


Risk, Reward and Pain: Doctor Lessons from An Opioid Trial

Nope. No opioids here.

Opioid medications continue to be in the news, as demonstrated by the recent nationwide state attorneys-general investigation.  This situation only demands more attention from physicians and other healthcare providers who may face significant criminal sanctions.

Brandon Essig

My law partner Brandon Essig recently wrote in Medical Economics:

Over the past three decades, opioids have become a standard and effective component of pain management for many practitioners. They are effectively and safely prescribed in every conceivable clinical environment—primary care facilities, hospitals, pain management clinics and even dentist offices. They are prescribed to treat chronic and intractable pain, such as advanced stage cancer pain or severe burns, but they are also prescribed to treat soft tissue injuries and even prophylactically for post-operative situations where the practitioner knows that the recovery typically, but not always, involves pain. 

However, the medical community in the United States, and indeed society as a whole, is also now facing the reality that the side effects of opioid medications can be devastating. When misused and abused, opioids can have the same ill effects on society as any other illicit drug—addiction, crime, overdose, massive public health costs and death. In other words, society is now grappling with the dual realities of opioid medication: 1 – its use as an effective pain management tool is proven and here to stay; and 2 – its dangers and risks are also proven and must be contained. 

Medical practitioners who prescribe opioid medications as part of their treatment of patients in pain are caught in the middle of this struggle. Unfortunately for them, one of the primary ways society has chosen to address the dangers and risks of opioids is through legal action—both civil and criminal—against the healthcare practitioners who prescribe them to their patients. Therefore, physicians and other practitioners who prescribe controlled substances are participating in what is perhaps the most high-risk practice of medicine today. 

Read the entire article here.  (The byline also bears my name, but all I did was review the draft with a see-through in hand).

The opioid issue is not going away.  As  Caleb Hawley notes, “we all got problems/we all got pain”: