It's very hard to uphold individual liberty when the person you're representing is often a crook.
Jed S. Rakoff
Judges have to be neutral, but they don't have to be eunuchs.
An application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous. If its deployment does not rest on facts - cold, hard, solid facts, established either by admissions or by trials - it serves no lawful or moral purpose and is simply an engine of oppression.
I've never been impressed with bureaucratic tradition. I don't like it when the parties come to me and say, 'This is the way that it's always done, judge.' I never found anything in the oath I took or the statutes I was asked to look at that said, 'Judge, stop thinking, because this is the way it was done before.'
Companies do not commit crimes; only their agents do. And while a company might get the benefit of some such crimes, prosecuting the company would inevitably punish, directly or indirectly, the many employees and shareholders who were totally innocent.
I admired Truman, among many other things, because he integrated the Army. I admired JFK because the very first civil rights legislation was passed at his insistence. JFK showed what you could do, though he was a deeply flawed person, as we all now know.
If, in the name of combating terrorism, we so restrict our own freedom, have we not thereby lost part of the very battle we seek to win?
I was always attracted to taking a novel position, but one grounded in the materials I'd been given, not made up out of whole cloth.
Everything needs to be public. The legitimacy of the courts comes from the fact that they reason openly, on the record, based on facts.
Judges are the people who have to protect the rights of individuals, have to protect the rights of minorities, have to protect the rights in the Constitution, have to protect the requirement that the executive and the legislature not simply exercise raw power but adhere to standards of reasonableness and constitutionality.
I don't have any respect for judges who arrive at the result first, and then try to figure out some way they can bend the law to reach their particular predilections.
In my experience, most federal prosecutors, at every level, are seeking to make a name for themselves, and the best way to do that is by prosecuting some high-level person. While companies that are indicted almost always settle, individual defendants whose careers are at stake will often go to trial.
If crimes are committed, they are committed by people; they are not committed by some free-floating entity. These companies and other entities don't operate on automatic pilot. There are individuals that make decisions - and some make the right decisions, and some make the wrong decisions.
Why should the court impose a judgment in a case in which the SEC alleges a serious securities fraud, but the defendant neither admits nor denies wrongdoing?
The price of being a nice guy is too high - much too high - in terms of the system of justice.
When I was a kid, and for many years after, I was your classic afraid-to-dance-type person.
I have huge respect for Preet Bharara, a great U.S. Attorney by any measure. But even great men can make mistakes.
If you prosecute a CEO or other senior executive and send him or her to jail for committing a crime, the deterrent effect in my view vastly outweighs even the best compliance program you can put in place.
I think it's common sense to say that the longer away from a crime it gets prosecuted, the less deterrent effect there is.
I have a past of making a fool of myself.
One of the many things I like about baseball is how it combines individual talent and teamsmanship.
In baseball you have individual responsibility, and if you fail it, you get an error. But at the same time, your focus is on the common goal of the team to win. This is part of what resonates with people about baseball. This is how they would like society to work.
Once I really got into securities fraud prosecutions, I came to realize how central they were to the maintenance of a free market and how, in many ways, they are far more important to the welfare of our society than many of the more sensational criminal cases that one hears about.
