From the Inside Out—a Law Student’s Perspective

“The Law is full of phraseology drawn from morals, and by mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.” 

 –Oliver Wendell Holmes Jr., The Path of the Law

While writing my Honors Scholar Thesis my senior year at DePauw University, Justice Holmes’ words became the perfect frame for my interdisciplinary study of legal ethics. This quote was taken from an address from an 1897 Harvard Law Review, The Path of the Law, 10 Harv. L. Rev. 457, (1897), in which Holmes offers a piece of pragmatic wisdom to the practicing lawyer. In essence, the lawyer should assume the role of “the bad man” who is not concerned with principles of ethics, axioms and systematic reasoning. Instead, the lawyer should be concerned with self-interest, preservation, and the immediate consequences influencing one’s actions. From this perspective, the lawyer better positions himself to protect those interests that “the bad man” might have in predicting how the court will respond, given the facts and circumstances that surround a particular case. As a somewhat critical undergraduate student, I noted that this perspective makes broad, “questionable” assumptions about the client while offering a somewhat cynical philosophy for the role that the lawyer must play for a successful study and practice of law. The emphasis on practice and prediction is a hallmark of Holmes’ pragmatic view of the law with experience at the foundation.

Holmes represented a critical juncture in the theory and practice of law, drawing attention to the intellectual content of the law, reviving historical relationships between law, ethics, and practical wisdom. Holmes believed in demystifying the law, removing notions of omnipresent knowledge and appeals to “the infinite” in order to focus on practical application and reasonable prediction. As a philosophy student, with a focus in ethics and morality, I was never a fan of pragmatism. In fact, I was rather perturbed by Holmes’ candid admission. Nonetheless, I found Holmes’ position to be “reasonable” and incredibly helpful as I embarked on my interdisciplinary study of legal ethics, specifically focusing on the duty to protect client confidences.

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Why Does Wisconsin Arrest Twice as Many People for Marijuana Possession as Minnesota?

In 2010, Wisconsin law enforcement agencies reported 16,111 arrests for simple possession of marijuana, including both adult and juvenile offenders. The same year, Minnesota agencies reported only 7,453. With this one glaring exception, Wisconsin is not otherwise noticeably more aggressive about making drug arrests. Wisconsin also made more possession arrests for other drugs than did Minnesota, but the gap was much less pronounced (4,807 to 3,737), while Minnesota actually outstripped Wisconsin by a considerable margin when it came to arrests for drug trafficking (6,382 to 4,832). So, it is not as if our neighbors to the west have declared a general truce in the War on Drugs, while we have doggedly fought on. Rather, there seems something specific about marijuana possession that is differentiating the two states.

It seems unlikely that differences in marijuana use could account for such a large difference in the arrest rates. Indeed, based on the National Survey of Drug Use and Health, it appears that marijuana use in Minnesota is, if anything, slightly higher than in Wisconsin. So, the differences in arrest rates probably result to a significant degree from differences in police behavior. What drives those differences is not immediately apparent from any data that I have seen.

As I have observed in earlier posts, differences in criminal-justice outputs between the two states cry out for justification because the two states are so similar in population size and crime rate. 

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Money, Art and Crime

Crime often pays, and sometimes pays very well. Both the drug dealer with a pile of cash in the basement and the insider trader with a huge portfolio in an off-shore account face a common problem: How to use the cash without being targeted by law enforcement or tax collectors. The solution is “money laundering,” a banal phrase that accurately conveys how illegitimate wealth is cleaned and pressed to appear lawful – and hence useable.

On September 5, 2012 the Law School hosted a packed lecture, “Money Laundering Perfected by Art,” presented by the Hon. Fausto Martin De Sanctis, a leading federal judge from Brazil, and Karine Moreno-Taxman, an assistant United States Attorney in the Eastern District of Wisconsin. Currently a fellow at the Federal Judicial Center in Washington D.C., Judge De Sanctis has been in the forefront of Brazil’s efforts to crackdown on international and domestic money laundering. Judge De Sanctis described the myriad forms that money laundering can assume, especially through the use of museum-quality art. Paintings and sculptures, for example, leave no money trails. Art dealers jealously guard the confidentiality of their patrons, which only facilitates stealth transactions. Judge De Sanctis talked about the legal battles involving Jean Michel Basquiat’s “Hannibal” (see image), an $8 million painting smuggled from Brazil to the U.S. by persons implicated in the Banco Santos financial scandal (Brazil’s answer to Bernie Madoff). 

Attorney Moreno-Taxman, who translated for Judge De Sanctis, also talked about gaps in domestic (U.S.) and international law which make these crimes hard to detect and complicate the recovery of tainted art, like “Hannibal.” An interesting subtheme was Brazil’s efforts to implement the rule of law since 1988, when it abandoned its military dictatorship and adopted a written constitution.

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