Brett Stuff
Judging the Judges
Term Year: 2018

Francis V. Lorenzo, Petitioner v. Securities and Exchange Commission

Summary Analysis

DATE: 2019-03-27
DOCKET: 17-1077
NAME: Francis V. Lorenzo, Petitioner v. Securities and Exchange Commission

   AUTHOR: Breyer
   JOINING: Roberts, Ginsburg, Alito, Sotomayor, Kagan
   GOOD: Yes

OPINION: Dissenting
   AUTHOR: Thomas
   JOINING: Gorsuch
   GOOD: No

Case Commentary

Let me start with some sort of sweeping statement about how if you care about the truth, please look at the original Supreme Court Slip, as I have been known to misunderstand things and make mistakes. Thus (as with all these Judging the Judges posts), reader beware.

I believe, given the following listing, it is clear I am abstracting from reality, just a little.
  1. Employ
  2. Make
  3. Engage
Deconstructing this listing is what this case is all about.

If The Law were a Programming Language, we would know what type of listing that is. Is it Ordered? A Set? Comprehensive? Or Partial?

Eh, that might not be entirely true. Programs and Programming Languages have problems all of their own. And given listing = [], one can hardly be expected to know the structure of the data that is to be held within the brackets. But at some point, the programmer should know. And at some point, the programmer should tell both the compiler and any other human readers of the program's intent.

Of course, Duck Typed Languages don't bother with this nicety. Come on, Compiler, figure it out! And neither (would it appear) does The Law.

Congress did not and (I am led to believe) typically does not indicate the Type (it's a mathematical concept) of a Law's Listing.
Are [A, B, C] sequential? Do they cascade? Does A preclude B? Is A a subset of B? Do they work together to form an organic whole? Is each part separate? Are things not mentioned to be excluded? Or are we crafting an idea, the essence of the crime?

Now, I am no Legal Scholar (so-little-so that I will be listing the definition of a few legal terms in a few moments for my own amusement), but it would seem to me, most Legal Lists do not include Type Annotations. It might be helpful if they did.

Eh, I might as well define those terms that I just mentioned, right now.

Debenture: a monetary instrument in which future earnings form the basis of the collateral.

Scienter: (similar to mens rea) knowledge of the crime and/or a guilty mind.

So, like, I had to look-up both of those terms. And that should be warning enough (right there) that no one (and I mean, no one) should be coming to these pages looking for Legal Advice. They're not Legal Advice. They're Philosophical Discussions, which just so happen to use Supreme Court Slips as their foci.

Since I seem to be going down the blind alleys first, I might as well take a moment to talk about Primary and Secondary (two more terms brought up in this case).

They are pretty much as they seem.

Primary: the base crime.

Secondary: an accessory, aider, or abettor.

These designations are Opinion Statements in and of themselves, as where the Secondary ends and the Primary begins can be a bit nuanced.

As I take it, selling alcohol to a minor would be a Primary. And if later in the day (come on, kid, stop Day Drinking), that child got into an automobile accident, that same selling would be a Secondary. I feel like I am slaughtering grammar, here. I probably am. The point is that it's not a Primary to sell alcohol to an adult. But there may be liability if that same adult later got into an accident. And of course (in the jurisdictions I am aware of, so this is very local, I assume), it is a Primary to sell alcohol to an Intoxicated Person or one who they know is about to Drive. It gets slippery. In some locales (I experienced this in Florida), there is a local shuttle service that the restaurants support. And if you want a ride after the meal, it's free... so free, they ask you at the door if they can call the shuttle for you... presumably, to ward off any liability... and the lawsuits that such liabilities inevitably bring.

In the Supreme Court case at hand, Primary and Secondary are discussed, with the principal question being: Can there be a Secondary if there is no Primary?

I would say yes, as many laws require Intent. And so, it is possible for a Secondary to have Intent, where the Primary does not.

But then, the counter is that if there is no Primary, there is no crime that the Secondary could have abetted.

Being simple minded, I have no need to worry my little head about such things. And for the most, I think mens rea is a faulty construction of law... i.e. it leads to a Rule of Randomness rather than a Rule of Law.

So, I would ask Was an intoxicated person served?

Rather than, Was an intoxicated person knowingly served?

But then, I would also want near 100% Detection & Conviction Rates with Hand Slap Penalties. So, I'm not talking about the Real World, here.

It's ironic that I talk about Hand Slap Penalties, as my first reaction to the penalty in this case was That's Harsh!

Two emails earned Lorenzo a $15,000 fine (not so bad), a Cease and Desist Order (which is sort of meaningless, come on, stop breaking the law, dude), and being "barred... from working in the securities industry for life."

Pretty harsh for two emails.

Of course, he should have known better.

And what's the point in having Professional Codes of Conduct if they aren't going to be enforced?

And now, to the case.
  1. Employ
  2. Make
  3. Engage
I want this listing to be an idea. Do a bad thing of this nature (fraud, in this particular case) and you will be punished. The Court is looking at it as an itemized list.

Um, no! Clearly (to me), the intent is to cover ALL MANNER of Fraudulent Behaviour.

Finally (will this really be it), in a previous case (Janus), the B. Make subsection was watered down, so that those following orders or just doing their job would not get in trouble. But that's not a relevant excuse to me.

Lorenzo was (unless I read the case wrong) ordered by his boss to send two emails (that the boss crafted, so Lorenzo did not make), which contained fraudulent information. And even though Lorenzo knew the information was fraudulent (though, whether Lorenzo actually bothered to read the emails is not discussed) he sent the messages.

Thus, he knew what he was doing was wrong and he did it anyway.

He's Guilty to me.

But is he Guilty under The Law?
  1. Employ
    • Sure, he employed the use of emails.
      • Note, I am slaughtering the laws involved by reducing them to single words.
    • And this is what he was convicted of.
  2. Make
    • Per Janus he did not make.
    • But per common sense, Lorenzo assembled the email (even if it was a cut and paste job); and therefore, he did make it.
  3. Engage
    • Yep, he engaged in the use of emails.
    • He engaged in a fraudulent transmission.
    • He did stuff.
The issue (for me) reduces to whether we want to allow someone to squiggle free by virtue of legal technicalities or hold them accountable for their bad behaviour... regardless of whether someone else was urging them to make those bad decisions or not.

Is Peer Pressure to be a valid defense?

How about My Boss told me to do it?

Rather than analysing the case further, I shall leave it at that.

There's a huge Type Miss-Match Error in the Listing between what Congress intended (and what did Congress intend) and how The Court is interpreting that same List.

Or at least (to me), that cuts to the heart of the matter and clarifies things the fastest.

It's like the difference between one entry of this Judging the Judges project versus an analysis of the integrated whole.

After all (and this is truly after all), one chapter, does not a book, make... no more than a single page, a website, makes.

Judging the Judges

Next Entry


Can the Sum of the Parts be Greater than the Whole?

For me, the answer is yes.

And if so, picking apart the parts does not always (and maybe seldom does) provide clarity.

In other words, perhaps The Law would be better if we embraced the Elusive Nature of Justice rather than trying to Codifying Morality to the Nth Degree.

© copyright 2019 Brett Paufler
A Personal Opinion/Editorial