Dennis Jacobs

Dennis Jacobs (born 1944) is a federal judge of the U.S. Court of Appeals for the Second Circuit. He previously served as Chief Judge of the Second Circuit from October 1, 2006 to August 31, 2013.^[1]

Personal and Professional

Born and raised in New York City, Jacobs graduated from Forest Hills High School in Forest Hills, Queens and from Queens College of the City University of New York in 1964. He received a Master's Degree in English Literature from New York University Graduate School of Arts and Science in 1965. From 1967 to 1968, Jacobs was a lecturer in the English Department of Queens College. In 1973, he earned his J.D. from New York University School of Law, where he served on the Law Review and was a Pomeroy Scholar. He was in private practice from 1973 with the New York law firm of Simpson Thacher & Bartlett, serving as a partner there from 1980 until his judicial appointment.^[2]

In 1992, President George H. W. Bush nominated Jacobs to serve on the Second Circuit, succeeding Wilfred Feinberg, and before him Thurgood Marshall. Jacobs was confirmed by the United States Senate on September 29, 1992, and received his commission on October 2, 1992.

Jacobs has been awarded the Learned Hand Award for Excellence in Federal Jurisprudence by the Federal Bar Council (2003); the Eugene J. Keogh Award for distinguished public service by New York University (2004); the Outstanding Public Service Award by the New York Intellectual Property Law Association (2009); and the James Madison Award by the Federalist Society. An honorary degree of Doctor of Laws was conferred in 2009 by St. John's University.^[3]

In 1997, Jacobs was appointed by the Chief Justice of the United States to the Judicial Resources Committee of the United States Judicial Conference; Judge Jacobs chaired that Committee in the years 1999-2004. The Committee has jurisdiction over personnel policy, compensation and benefits for the employees of the Third Branch, as well as jurisdiction over the need to create new federal judgeships in the various district and appellate courts of the United States. As chair of that Committee, Jacobs directed implementation of the Employee Dispute Resolution program by which discrimination claims are resolved within the Third Branch; and he testified in Congress on the need to revamp benefits for the employees of the Judiciary and on the need for new judgeships to deal with rising case loads.

In 2006, Jacobs delivered a speech entitled "The Secret Life Of Judges" as the 2006 John F. Sonnett Memorial Lecture at Fordham University School of Law.^[4] The subsequently published manuscript won a Green Bag Award for exemplary legal writing in the short article category.

Jacobs has also delivered two speeches expressing concern about what he views as a disconnect between the military and the legal elite. The first speech was entitled “The Military and the Law Elite” and was delivered at Cornell Law School in 2009.^[5] The second was entitled “Lawyers at War” and was delivered in Washington, D.C., in 2012 as the 10th Annual Barbara K. Olson Memorial Lecture.^[6]

Notable decisions

• Windsor v. United States, 12-2335-cv(L); 12-2435 (2d Cir. 2012). Held that the Defense of Marriage Act's classification of same-sex spouses was not substantially related to an important government interest, Section 3 of DOMA violates equal protection and is therefore unconstitutional.^[7] The Court held that laws that classify people based on sexual orientation, like DOMA, should be subject to intermediate scrutiny.^[7]
• United States v. Ferguson, 653 F.3d 61 (2d Cir. 2011). Vacated the convictions of five business executives who were charged with securities fraud in connection with an allegedly sham reinsurance transaction. Jacobs held that the district court improperly admitted charts showing a decline in AIG’s stock price following the revelation of the fraud, which was unduly prejudicial because [i] loss causation was not an element of the charged offenses and [ii] the government’s use of the evidence “fell outside the natural sequence of what the defendants were charged with thinking and doing” and was “exploited . . . to emphasize the losses caused by the transaction.”
• United States v. Wilson, 610 F.3d 168 (2d Cir. 2010). Vacated the defendant’s death sentences and remanded the case to the district court for resentencing. Jacobs held that statements made by the prosecution during the sentencing phase of the trial concerning the defendant’s failure to plead guilty or to take the stand at trial violated the defendant’s Sixth Amendment right to a jury trial, and in combination with the district court’s refusal to give a Carter no-adverse-inference jury instruction, violated the defendant’s Fifth Amendment right not to testify at trial.
• Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc). Held that there was no claim for damages against federal employees under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), based on an allegation of extraordinary rendition. Jacobs held that “‘special factors’—such as judicial hesitance to intrude in national security affairs, the importance of maintaining the security of classified information, an interest in the appearance of openness in the court system, and the potential for graymail” counseled against implying a private right of action in this context.
• United States v. Finnerty, 533 F.3d 143 (2d Cir. 2008). Affirmed a judgment of acquittal entered by the district court following a jury’s guilty verdict against a specialist on the New York Stock Exchange charged with securities fraud. Jacobs held that the defendant’s alleged interpositioning (trading for his own account ahead of his customers’), in violation of New York Stock Exchange rules, did not provide a basis for criminal liability under § 10(b) of the Securities Exchange Act. Jacobs concluded that the defendant’s conduct did not involve the requisite “deception,” because he did not convey an impression that was misleading to his customers; and the government otherwise failed to produce “proof of manipulation or a false statement, breach of a duty to disclose, or deceptive communicative conduct.”
• Lentell v. Merrill Lynch, 396 F.3d 161 (2d Cir. 2005). Clarified the requirements for pleading loss causation in securities fraud cases. The plaintiffs claimed that research reports recommending the purchase of shares were materially misleading. Jacobs held that the plaintiffs had not adequately pleaded loss causation because they failed to plead facts showing that the materialization of the allegedly concealed risks caused the stock price declines that led to plaintiffs’ losses.
• United States v. Handakas, 286 F.3d 92 (2d Cir. 2002). Held that 19 U.S.C. §1346, which criminalizes “honest services” fraud, was unconstitutionally vague. Jacobs concluded that the ambiguous statute did not give notice of the forbidden conduct to laymen, or set boundaries to prosecutorial discretion. In 2010, the Supreme Court invoked the constitutional avoidance doctrine to narrow the scope of §1346 to cover only bribery and kickback schemes. Skilling v. United States, 130 S.Ct. 2896 (2010).
• Yurman Design, Inc., v. PAJ, Inc., 262 F.3d 101 (2d Cir. 2001). Reversed a jury verdict in favor of the plaintiff against a rival jewelry company for trade dress infringement under the Lanham Act, holding that the claim must be dismissed as a matter of law because the plaintiff failed to identify specific elements of its trade dress, and therefore failed to meet the heightened burden of proving distinctiveness imposed on product design plaintiffs under the Lanham Act.
• Harrison v. Barkley, 219 F.3d 132 (2d Cir. 2000). Held that prison personnel did not enjoy qualified immunity when they refused to treat an inmate’s dental cavity unless he consented to the extraction of another tooth. Jacobs held that there was a genuine issue of material fact as to whether the defendants’ refusal to treat the plaintiff constituted deliberate indifference to serious medical needs in violation of the Eighth Amendment.
• Baker v. Dorfman, 239 F.3d 415 (2d Cir. 2000). Affirmed the district court judgment awarding the plaintiff damages for legal malpractice and fraud against his lawyer. Jacobs concluded that the plaintiff suffered the loss of his claim due to the defendant’s negligent untimely filings, and was induced to retain the defendant as counsel because his resume contained intentional and material misrepresentations.
• United States v. Lynch, 162 F.3d 732 (2d Cir. 1998). The Second Circuit voted not to re-hear this case en banc after holding that the Double Jeopardy Clause barred the government’s appeal of the district court’s judgment of acquittal under 18 U.S.C. §248. Although the district court acquitted the defendants based on its erroneous view that their sincerely held religious beliefs precluded a finding of willfulness, this determination was in its essential nature factual rather than legal and therefore Double Jeopardy applied.
• United States v. Ready, 82 F.3d 551 (2d Cir. 1996). Held that ambiguities in a plea agreement did not permit an inference that the parties intended it to preclude a criminal defendant’s appeal of an illegally imposed restitution penalty. Jacobs concluded that since plea agreements are properly construed as contracts, ambiguities therein should be construed strictly against the government.
• Tippins v. Walker, 77 F.3d 682 (2d Cir. 1996). Held that counsel’s prolonged periods of sleeping during his client’s criminal trial deprived the client of effective assistance in violation of his Sixth Amendment right to counsel. Jacobs concluded that the criminal defendant suffered prejudice because “his counsel was repeatedly unconscious at trial for periods of time” during which his interests were at stake, and explained that “sleeping counsel is tantamount to no counsel at all.”
• Fisher v. Vassar College, 70 F.3d 1420 (2d Cir. 1995). Reversed the district court judgment awarding the plaintiff damages and attorney’s fees on her age and gender discrimination claims. Jacobs further held, and the in banc court later upheld, that the plaintiff was not entitled to attorney’s fees because “only a ‘prevailing party may recover attorney’s fees and costs in a civil rights action,’” and the plaintiff prevailed on none of her discrimination claims, despite a finding of pretext.
• United States v. Yemitan, 70 F.3d 746 (2d Cir. 1995). Held that a criminal defendant’s appeal was foreclosed by his plea agreement. Jacobs reasoned that plea agreements are construed according to contract principles; and since the defendant’s appeal did not present policy constraints sufficient to bear upon the enforcement of a contract, dismissal of the appeal was necessary to afford the prosecution the benefit of its bargain.
• Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124 (2d Cir. 1994). Held that “the aggrieved holder of somewhat less than one share of stock in [the defendant]” failed to plead facts sufficient to raise the strong inference of fraud required to meet the specificity requirements for pleading fraud under Rule 9(b). Jacobs held that executives in a corporation are entitled to be optimistic about their future earnings, and the fact that their predictions turn out to be wrong in hindsight is insufficient to establish scienter. Jacobs also held that the requisite motive to give rise to an inference of fraudulent intent requires more than a general desire to “prolong the benefits of the positions” held by executives.

References