Deconstructing the Breyer/Kim Kardashian Analogy

Posted: October 5, 2016 by beguide in Uncategorized


On the first day of the Supreme Court’s 2016/2017 term, the Court made news when Justice Stephen Breyer referenced Kim Kardashian and her recent robbery during oral argument.   The underlying case, Shaw v. United States, does not deal with armed robbery or famous socialites, but instead the evidentiary burden for proving the mens rea of federal Bank Fraud statutes.  With such an attenuated connection between the case and the analogy, it seems worth investigating why this analogy was made and whether it was an effective judicial strategy.  Let’s take each question one at a time.

  1. What was this case about?

The defendant in this case, Lawrence Shaw, is a prime example of what happens when you don’t fully considering the consequences of your actions.   In 2007, Shaw’s roommate’s father had his mail delivered to Shaw’s property while working overseas.  Shaw was accused of opening the father’s Bank of America statements and then using that information to siphon money into a separate account owned by Shaw.  To facilitate this transfer, Shaw is alleged to have linked up fraudulent Paypal and Washington Mutual accounts using altered driver’s licenses belonging to the roommate’s father and Shaw’s father.  All roads still led to Shaw, which is why this story is being conveyed in the context of a federal criminal case and not a perfectly-legal-get-rich-quick advertisement.

Shaw’s plan not only failed to cover his tracks, but the implication of Paypal is the reason this case is currently before the Supreme Court.  In order to be convicted of Bank Fraud, federal statutes require that the Federal Government must prove that the defendant knowingly executed a scheme to defraud a financial institution.  This definition illustrates the two general elements of every criminal statute, which are a guilty act (i.e. you did something wrong) and a guilty mindset (you intended to do something wrong).  The guilty act in this case (i.e. defrauding a financial institution) is not at issue because Shaw took money from a Bank of American account using fake accounts and fake identification.

The focus of this case is instead on the guilty mindset the State was required to prove to convict Shaw of one particular section of the Bank Fraud statute.  The phrasing of the Bank Fraud statute requires that the State prove a “knowing” standard of intent, which means that State must show the Shaw intended his actions (setting up the fraudulent accounts) and also intended to cause the result of his actions (causing other parties to lose money for his benefit).  The issue in this case comes down to the second half of that analysis, which is whether the State must prove that Shaw intended to not only to steal money generally, but that Shaw intended on causing pecuniary harm to Bank of America specifically.  This is an important distinction because Bank of America ended up paying none of the approximately $300K stolen by Shaw, as Paypal reimbursed the original account holder for the amounts allegedly stolen.   Procedurally, it is also a higher burden for the State to prove that Shaw intended on causing Bank of America pecuniary harm, and when Bank Fraud charges carry a maximum penalty of $100,000,000.00 and thirty years in prison, such nominal distinctions are likely worth going to the Supreme Court over.

If this distinction seems unclear or irrelevant to you, that’s a perfectly reasonable opinion.  Although the Supreme Court gets more notoriety for civil rights cases, cases about semantics and the interpretation of poorly-worded federal statutes are far more common on the Supreme Court’s docket.   In fact, had Breyer not invoked a famous hot celebrity during his questioning, this case likely would have sunk into the annuls of Supreme Court anonymity with cases like Lockhart v. U.S., which last year decided that the lack of an Oxford comma qualified a sex-offender for a ten-year mandatory minimum sentence.  It should be noted that statutory interpretation cases can have real importance, as the fate of the Affordable Care Act, and the American health care system in general, rested on how the Court interpreted the three word phrase “by the States” in the 2015 case of King v. Burwell.

  1. Should you care about this case?

                I certainly hope not.  As far as I can tell there are only three people who should care about this case, which are (1) people who intend on defrauding banks, (2) banks, and (3) Shaw.  It’s entirely possible you could qualify in section (1), but let’s hope everything referenced above scares you off that career path.

Aside from the fate of Shaw (who probably cares a lot about this case), the most important outcome of this matter is resolving ambiguity within the Bank Fraud statute for future cases and future defendants.  One of the primary tasks of the Supreme Court is to resolve contradictions between lower courts who apply these statutes on a more regular basis.  Most jurisdictions at the lower level require the State to prove the higher standard of “intent to cause pecuniary loss”, so the Court is likely using this case to provide a uniform answer for all Courts going forward.

  1. What does Kim Kardashian have to do with Bank Fraud?

                Nothing, but that’s why this answer needs context about oral argument.  While most popular TV and movie depictions show lawyers making opening and closing statements to twelve silently engaged jury members, most legal arguments are made in the exclusive presence of judges via a process called oral argument.   The purpose of oral argument is to create a conversation between the judge and the attorney so the judge can resolve the Court’s pressing questions about key issues of law present in the case.  Therefore, unlike an opening statement which is often rehearsed, oral argument is a more free-flowing process where it behooves the attorney to plan out each word in advance.  This way, the attorney can best respond to whatever particular method of questioning is preferred by the Judge hearing the case.

Which, I should note, is why oral argument sucks.  For context, picture yourself giving a best man/maid of honor speech at your best friend’s wedding.  Public speaking is bad enough, but now imagine the entire crowd hates your friend and wants you to admit that your friend is a horrible human being.  Then, imagine everyone at the wedding is a lawyer.  Such is the hell of oral argument.  Among the worst parts of oral argument is the judge’s use of analogies to trip up advocates from their legal positions.  Judges commonly use analogies to present the problem in a different context, for purposes of truly illustrating how stupid the first point was to begin with.

It is within this context that Kim Kardashian’s recent robbery came up in oral argument, ultimately preserving Ms. Kardashian’s name within famous Supreme Court oral argument transcripts like Roe v. Wade and Brown v. the Board of Education.  The attorney for Shaw spoke first in oral argument and sought to argue that the Bank Fraud statute requires the State to prove that the defendant intended for Bank of America to bear the loss for the defendant’s fraud scheme.  The underlying theory was the State could not prove Shaw intended on causing Bank of America pecuniary loss because Bank of America was reimbursed in full by Paypal.  Sotomayor, Breyer, and Roberts took issue with this statement, with Breyer using the Kardashian robbery to make a point about why pecuniary loss of the victim doesn’t play a part in the State’s burden.

Breyer’s point was that allowing insurance reimbursement to factor into the State’s burden would result in an absolute defense for any defendant who stole from an insured party since most, if not all banks are insured.  The reference to Kardashian’s robbery was to point out that Kardashian likely insured her jewelry, and to allow Shaw’s argument to succeed in this context would create inconsistencies in other situations.  Going back to the point about oral argument above, Breyer’s use of the Kardashian story was to take the attorney’s argument (i.e. that this defendant cannot be liable for stealing insured funds), and to take it to its most ridiculous conclusion (i.e. robbing someone of millions of dollars is not fraud whenever the stolen property is insured), for purposes of making the attorney admit they were wrong.  This is pulling back the curtain a bit, but lawyers are taught in law school to resist giving even an inch in these contexts, since admitting defeat in timed oral arguments is often a concession the lawyer does not have time to explain away later on.

  1. How effective was the analogy?

Perspectives could certainly differ here, but I did not think the analogy was particularly effective.  By all accounts, Shaw’s attorney was trying to focus on the purpose of this particular section of the Bank Fraud statute to show why it did not apply to Shaw.  The attorney’s argument was not that this section of the Bank Fraud statute was generally unenforceable, but that there is another section of the same statute that had better applicability to this situation.   In that context, Breyer’s analogy was focusing on a general point that the attorney was not trying to make.

It should also be noted that there are factual differences between Shaw and the Kardashian robbery that illustrate why analogies like this can be so frustrating.  The Shaw case is about fraud, which is using deception and misinformation to wrongfully deprive someone of property rights.  The Kardashian case, by contrast, is about armed robbery, which is using force to compel someone to surrender property rights.  Therefore, it is hard to compare the two cases when the method of taking is so drastically different.   Breyer attempted to mold the hypothetical around a fraudulent premise, assuming that the jewelry thieves claimed to be jewelry cleaners, but even with that assumption it is a wide gap to connect the two events.   Ultimately, the analogy felt a little ham-fisted because the same point illustrating Breyer’s concern about insurance could have been made without referencing Kardashian specifically.

Full disclosure, I am not one to talk because I love ham-fisted analogies. Throughout this essay, I have been trying to shoe-horn in a point about older people trying to sound cool by telling a story about how my mom still asks me if I am excited about the most-recent Teenage Mutant Ninja Turtles movies because she thinks that a thirty-five year old man still has the same interests he had at age ten.   So I’m not trying to judge per se, but I do think bringing up Kim Kardashian (a celebrity people are already fatigued about) and Kim Kardashian’s robbery (a story that has garnered nothing but annoying media and Facebook attention) at the very start of this oral argument on the first day of oral argument was a little too cute.

  1. What does this say about Breyer?

Nazim and I had a discussion on a recent podcast about how many Supreme Court Justices have seen at least one episode of Game of Thrones.  I felt like the answer was no more than 4, no less than 2, and Nazim said zero.  My original assumption was that Kagan and Sotomayor are definite yes, while Roberts, Ginsberg, and Alito were solid maybes.  Considering that Breyer went out of his way to bring up Kanye West’s wife on the first day of Court, I think now we can safely include Breyer in that category as well.


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