Line Drawing

By Professor David Phillips

A key activity of those involved with “law,” whether it’s in the context of creating law or applying law to given facts, is either to draw lines or to decipher on which side of a line a certain activity falls. The speed limit on a particular street or highway presents an obvious example.  Let’s say that the speed limit on a superhighway is 65 mph; one drives legally at or below that “line,” whereas one drives illegally above that speed limit and possibly subjects him or herself to a fine.  But when I say that law is about line-drawing, I mean such on a more embracing and hopefully sophisticated level.  And, to be realistic, even this simple initial example of a speed limit is far more complex than would at first appear, as we shall discover when returning to it later.  Read on to try some other examples first and through these examples discover some of the ideas you’ll struggle with as you proceed through the first-year of law school.

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Faculty Post: The Law & Morality

by Professor David M. Phillips

Mills v. Wyman, an 1825 Massachusetts case, which is featured in one of the more popular first year casebooks, raises the question of the relationship between law and morality. Incurring various expenses, Daniel Mills cared for a 25 year old sick sailor, Levi Wyman, who then died. His father, Seth Wyman, wrote to Mills promising to pay for those expenses, but then reneged on the promise. Mills brought suit, but the Massachusetts Supreme Judicial Court affirmed a lower court holding that no action lay. Consideration is required to hold liable a promisor, and according to the court, Mills had given no consideration in return for Wyman’s promise; consideration could not consist of past action. Despite their respective holdings, the lower court had termed Wyman’s conduct “a strong example of particular injustice,” and the Supreme Judicial Court stated that Wyman had a “moral obligation” to fulfill the promise. But, to the court, a violation of a “moral duty” was not equivalent to a violation of a legal one. Continue reading

Faculty Post: “What will I learn in the first year of law school?”

by David M. Phillips, Professor of Law

“What will I learn in the first year of law school?,” is a frequently asked question directed at a law professor. There are many answers to this question. Without pretending to be exhaustive, let me tender a partial answer, one focusing upon a changing conception of what we mean by law and one related to a skill that the first year of law school enhances.

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Faculty Post: A Look at Insider Trading

by Professor David Phillips

Criminal prosecutions brought by the Justice Department and civil actions instituted by the Securities and Exchange Commission against parties accused of “insider trading” have been prominent in the news lately. SAC Capital Advisers LP, a hedge fund, in a settlement of a criminal prosecution by the United District Attorney for the Southern District of Manhattan, has agreed to pay a penalty of $1.8 billion. That criminal penalty is in addition to an earlier settlement with the SEC involving a civil penalty of $616 million. These actions follow an earlier criminal prosecution involving another prominent hedge fund, Galleon, and its founder, Raj Rajaratnam, also for insider trading.

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