Category: General Law


Judging Sonia Sotomayor?

The confirmation hearings for Judge Sotomayor before the U.S. Senate Judiciary Committee have concluded.  Her confirmation now appears to be a foregone conclusion.

As the smoke clears, here are five things that I took away from the hearings:

1. Stephen Carter’s book title “The Confirmation Mess,” still succinctly summarizes the confirmation process for a Supreme Court Justice. The process – with Senators asking questions without listening to answers and nominees cowed from fully developing their judicial philosophies — is an incredible exercise in tedium and wastefulness. We learn more about the nominee from how he or she responds to the circus-like atmosphere than we do from the substance of the answers to the questions.

2. Latinos still face hurdles in being fully accepted in the public sphere in U.S. society. The Senators seemed flummoxed at times with the proper treatment to afford a Latino candidate given their lack of experience with one as a nominee for the highest Court in the land. For example, Senator Coburn’s reference to Judge Sotomayor having some “splaining to do,” a reference to a line of a stereotypical Cuban-American (not Puerto Rican) sitcom star from the 1960s, amazes me. (If I were to say something like this to a job applicant, an employment discrimination claim would soon be coming.). Similarly, the persistent demonization of the Puerto Rican Legal Defense and Education Fund, a mainstream Latino civil rights organization, by the Republican members of the Judiciary Committee was deeply troubling. With an African American candidate, can we imagine a reference to Sanford & Son or attacks on the NAACP Inc. Fund (or the Federalist Society, the arch-conservative group that promoted Justices Scalia and Alito as well as Chief Justice Roberts) ? I think not. Even the attacks on Thurgood Marshall in 1967 were more subtle in certain respects than those on Judge Sotomayor.

3. Judge Sotomayor is a judge in the mainstream of American judges. She judges by the book. From the beginning of the hearings when she emphasized her commitment to the rule of law and her view of the rule of law as applying the law to the facts, not making law, Judge Sotomayor showed that, like previous nominees, she knows and accepts the appropriate role of judges. Her 17 years of judging demonstrate that Judge Sotomayor is a “judge’s judge,” a characteristic that none of the Senators placed in question in the four days of hearings.

4. Judge Sotomayor has the temperament to be a Justice on the U.S. Supreme Court. Tapping into long-held stereotypes of the “hot blooded” Latino (like Ricky Ricardo, see above), some questioned Judge Sotomayor’s judicial temperament. The only evidence of any temperament issues was that she was an aggressive questioning at oral argument and a handful of lawyers criticized her in anonymous evaluations. The fact that Judge Sotomayor could put up with four days of questions, many bordering on the ridiculous, while taking each and every one as seriously as the last, demonstrated a patience that, in my estimation, was most impressive. She was unflappable in answering the questions, refused to allow some of the Senators to put words in her mouth, and stuck to her guns. It was a most impressive performance. And, I have little doubt that she will be more generous to advocates in the Supreme Court than some sitting Justices.

5. When she is confirmed, the nation as a whole should be proud that Sonia Sotomayor – and her incredible life story – made it to the U.S. Supreme Court.


Shareholder Bill of Right’s Act of 2009 and Delaware’s Dominance

Several weeks ago, New York Senator Chuck Schumer introduced the Shareholder Bill of Rights Act of 2009.  The bill is just another shot across the bow in the battle to force corporate leadership to consistently act in a way befitting the economic and fiduciary responsibility they bear.  The bill also fuels the debate raging over federal preemption of state corporate law and reopens state/federal wounds that have been poorly healing since the Sarbanes-Oxley Act was adopted in 2002.  (The Shareholder Bill of Rights Act of 2009 was nicely summarized here by Professor Larry Cunningham, and Professor Larry Mitchell, also of George Washington Law School, published a recent opinion piece criticizing the bill.)

When the bill was initially proposed, I spoke about what the bill might mean in the context of the larger federalism discussion as it pertains to securities law and corporate governance.  In my view, the state versus federal power issue raised by the bill is the really thorny issue, as opposed to any one provision of the bill. 

To wit, corporate law and corporate governance regulation have historically been the province of the individual states.  The questions of what boards must do and what corporations can do, for example, have historically been answered by resort to state law (common and statutory) as opposed to federal law.  This allocation of authority has served various states well.  Specifically, if a state is viewed as being a favorable place for corporations in terms of law or jurists, the state will attract many corporations, who will pay to the state incorporation fees and annual taxes. (Delaware, for example, has been well served by cultivating for itself a reputation as a state with prowess in corporate matters, both in terms of legislation and litigation.  Delaware has drawn huge amounts of money in incorporation fees and franchise taxes from corporations.)

The notion, then, that Schumer’s bill could usurp some state authority over meaningful corporate law and corporate regulation issues does not sit well with all state legislators, jurists, and lawyers.  These parties recognize that the bill could set a bad precedent for allocating power over corporate regulation and corporate law, which, in turn, could reduce the role or at least the perception of the role individual states play in corporate regulation.  This, in turn, could reduce the prominence of any given state in the market for corporate incorporation.

At the same time, Sonia Sotomayor factors into this discussion because it is entirely possible that issues of federal jurisdiction (including the SEC’s jurisdiction) will be hot topics for the Supreme Court in the next ten years.  Sotomayor has proven herself to be an able and thoughtful jurist on issues of business law, which are issues that often stymie the current Court.  If jurisdictional questions and questions about the allocation of power come before the Supreme Court and Sotomayor is on the bench, my sense is that her reasoned judgment – having been honed in jurisdictions (SDNY and 2d Cir.) that deal regularly with big-ticket business issues – will hold weight with her colleagues.

So, while we could have a discussion about the individual provisions of the Shareholder Bill of Rights Act of 2009, I think it is even more important to be discussing the future of the state v.s. federal divide in corporate/securities law, and the role, if any, Sotomayor might have in shaping that future.  There is big money at stake for all dogs in this fight, and it will be interesting to see how this unfolds.


Zuckerberg’s Law on Data Sharing, Not Puffery

As I noted in a blog post late last year, Mark Zuckerberg, chief executive of Facebook, has predicted that “next year, people will share twice as much information as they share this year, and that next year, they will be sharing twice as much as they did the year before.”  He explained that “people are ever more willing to tell others what they are doing, who their friends are and even what they look like as they crawl home from a college party.  Recent statistics support his optimism (and then some).  Yesterday, Zuckerberg announced that his social networking site now has 250 million active users, up from 200 million users just three months ago and 150 million in January.

This development has much significance.  It tells us that social networking is no passing fad — it is deeply embedded in our daily lives and will likely remain so despite many parents’ dismay.  It suggests that we are more connected personally (and perhaps more distracted professionally).  And it 120px-facebook_svgmeans that we entrust Facebook with an exponentially increasing amount of data.  Facebook’s information security practices and privacy policies are thus worth watching carefully.  No doubt, this development will have other far-reaching impacts so your comments are most welcome.

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Virginia Law Review 95:4 (June 2009): The SEC in a Time of Discontinuity

VOLUME 95      JUNE 2009     ISSUE 4


Virginia Law Review 95:4 (June 2009)

Symposium Issue: The SEC in a Time of Discontinuity

The SEC in a Time of Discontinuity: Introduction to Virginia Law Review Symposium

Joel Seligman


The Race for the Bottom in Corporate Governance

Frank H. Easterbrook

Redesigning the SEC: Does the Treasury Have a Better Idea?

John C. Coffee, Jr. and Hillary A. Sale 

Top Cop or Regulatory Flop? The SEC at 75 Jill E. Fisch
Commentary On Redesigning The Sec: Does The Treasury Have A Better Idea? Steven M.H. Wallman
Securities Law and the New Deal Justices A.C. Pritchard and Robert B. Thompson


The Securities Laws and the Mechanics of Legal Change

Barry Cushman


Coping in a Global Marketplace: Survival Strategies for a 75-Year-Old SEC

James D. Cox

Treatment Differences and Political Realities in the GAAP-IFRS Debate

William W. Bratton and Lawrence A. Cunningham 

The SEC, Retail Investors, and the Institutionalization of the Securities Markets Donald C. Langevoort


Whither the SEC Now?

Brian G. Cartwright

A Requiem for the Retail Investor?

Alicia Davis Evans 


A Note on “Alien” Terminology in the Public Discussion of Immigration and Immigrants

Yesterday, USA Today’s Emily Bazar led an interesting discussion between representatives of NUMBERS USA, a group seeking to reduce immigration, and National Council for La Raza, which seeks to protect the rights of immigrants, about the appropriate use of terminology when referring to undocumented immigrants, “aliens”, “illegal aliens”, immigrants, human beings, etc.  A video of the discussion — debate really — can be viewed by clicking th elink above.

Just to be clear, the omnibus federal immigration statute, the Immigration & Nationality Act, does not generally employ the term “illegal alien.”  When that phrase is used in the public context, it usually betrays a particular view about undocumented immigration in the speaker.  Guss what that view might be?   “Illegal aliens” has grown to be a deeply pejorative term in the public discourse. 

Today, “illegal aliens” often is used as code for the stereotypical undocumented Mexican immigrant and sometimes even persons of Mexican ancestry generally.  Importantly, the best available estimates are that roughly 60 percent of the undocumented immigrant population is from Mexico (and thus 40 percent is not).

in contrast to “illegal alien,” the term “alien” is effectively the DNA of the INA, with the statute defining the admissions and removal criteria for “aliens,” i.e., persons who are not U.S. citizens or nationals.  Still, the use of the term “alien’ in public discussions of immigration tends to have a distancing and dehumanizing impact.  To paraphrase  Alexander Bickel, it is far easier to deny rights to a noncitizen than a person. 

For discussion of the terminological question in some detail, see  Mai Ngai, Impossible Subjects:  Illegal Aliens and the Making of Modern America (2004) and Kevin R. Johnson, Aliens and the U.S. Immigration Laws:  The Social and Legal Construction of Nonpersons, 28 U. Miami Inter-American Law Review 263 (1996-97).


Cowardice or Valuable Internet Anonymity?

Insulting or vitriolic comments made in response to a provocative blog post in the legal academy are often made anonymously. Why is that? These comments are not whistleblowing comments or comments of the sort that should require anonymity. It seems to me that the only reason to avoid signing one’s name to an insulting comment is cowardice.

Particularly when commenting on a blog in the legal academy, where presumably people are acting in good faith, it is curious not to sign one’s real name to a negative or critical post. If one has the courage to make a negative comment, surely one should have the courage to sign one’s own name to it.

Some blogs have a policy whereby comments not signed will be deleted. I have never used that policy on But I will admit that I am always perplexed when faced with an insulting comment that is not signed by someone with a verifiable name. Why make the comment without actually owning it?


Sotomayor, Saenz, and the Vilification of Latino Civil Rights Organizations

At long last, the Sonia Sotomayor confirmation hearings begin tomorrow.  It should be interesting but do not expect high drama.  No “smoking gun” demonstrating Judge Sotomayor’s “judicial activism” has been uncovered for Republicans to wave.  Instead, the opposition is trying to bring in some drama with the testimony of Frank Ricci and Ben Vargas, a Puerto Rican, two plaintiffs in the New Haven firefighters case.

 To me, one of the amazing parts of the confirmation process has been the treatment afforded relatively mainstream Latino civil rights organizations that Judge Sotomayor had affiliations with,  National Council for La Raza and the Puerto Rican Legal Defense and Education Fund (now known as Latino Justice).  Both have been nothing less than tarred and feathered for in effect being racist and, at least according to former member of Congress (and anti-immigrant zealot) Tom Tancredo in talking about NCLR, the Latino equivalent of the KKK.  As Sherrilyn Ifill has written, the making of such wild accusations by mainstream politicians reveals how vulnerable Latinos are in U.S. society.  Could anyone see similar claims made against the NAACP Inc. Fund?

Judge Sotomayor’s confirmation seems assured.  However, this is not the first time that affiliations with a Latino civil rights groups were used to try to damage one of President Obama’s nominees.  Earlier this year, the administration declined to appoint Tom Saenz, formerly the head of litigation at the Mexican American Legal Defense & Educational Fund (MALDEF), to head the U.S. Department of Justice’s Civil Rights Division reportedly because of his cutting edge (and successful) litigation at MALDEF to protect the rights of immigrants and day laborers.  As the N.Y. Times opined, Saenz would have been an excellent head of the Civil Rights Division and it was a shame for the nomination to be scuttled because of his civil rights litigation at MALDEF. 

As a member of the board of directors of MALDEF, I was sad to see MALDEF’s good llitigation work be used to torpedo a nomination for an extremely important civil rights post.  I am proud to be on the board of an organization that is bringing litigation seeking to protect the rights of Latinos in employment, voting, immigration, education, and housing.  It is groups like MALDEF that call for action in cases like the hate killing of Luis Ramirez in Shenandoah, Pennsylvania last year.

 Hopefully, the smear tactics that we saw in the Saenz nomination and early on in the Sotomayor nomination, will not reappear in the future.   Indeed, the quick retreat of mainstream Republicans from the early attacks on Judge Sotomayor suggest that some are recognizing the dangers of alienating the Latino vote.   However, I will feel better when groups like MALDEF, Latino Justice, and National Council for La Raza are viewed as positive  contributors to civil rights and justice in U.S. society, rather than vilified as racist, otherwise outside the mainstream, and part of the problem.


Use Those Quarters for Laundry


Last week, a toll road outside Denver and another outside Dallas went cashless.  Drivers on E-470  and the President George Bush Turnpike will have to attach transponders to their cars or pay a fee when their bill arrives in the mail.   The move toward cashless toll roads has been a long time coming, as Professor Erik Lillquist and I discuss in this article about the ways in which government encourages the use of new technologies.  In Denver, for instance, 30% of drivers used transponders when they were first introduced in 1991; by 2009, 75% of drivers used them.

Electronic tolling has been a win for both drivers and toll authorities.  Drivers with transponders enjoy a quicker ride, while the authorities who run the toll roads save on labor costs.  Electronic tolling also reduces vehicle emissions and accidents in the vicinity of tolling stations. 

For the last decade or more, the challenge for tolling authorities has been convincing drivers to incur the hassle costs of obtaining a transponder and establishing an account from which tolls can be deducted.  As an incentive for participation, authorities offered the ability to zoom through tolling stations and, in some instances, lower tolls for electronic customers.  Now electronic tolling has apparently reached the tipping point.  In addition to the roads outside of Denver and Dallas, the Miami-Dade Expressway Authority is converting five of its expressways  to electronic-only tolling.  The highway that  will connect Prince George’s and Montgomery counties will also be cashless.

Drivers had better enjoy the convenience of electronic tolling, as the days of lower tolls for electronic customers are apparently over.  The Wall Street Journal is reporting that some researchers expect tolls on electronic-only roads to be higher than on roads that offer a cash option.  Amy Finkelstein, a professor at MIT, suggests that electronic tolling results in tolls that are 20 to 40 percent higher than they would otherwise be.   Apparently it’s easier for authorities to raise rates when the toll is just automatically deducted from the driver’s account than when the driver has to toss coins into a hamper or feed dollars into a cash reader.

So drivers should beware.  The moment of payment may be intangible, but the money deducted from their accounts is real.


UCLA Law Review 56:5 (June) — Symposium: The Right to Bear Arms after D.C. v. Heller


Volume 56, Issue 5 (June 2009)

Symposium: The Second Amendment and the Right to Bear Arms After D.C. v. Heller

Gun Control After Heller: Threats and Sideshows From a Social Welfare Perspective (pdf)
Philip J. Cook, Jens Ludwig, and Adam M. Samaha

Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss” (pdf)
Saul Cornell

Heller and the Triumph of Originalist Judicial Engagement: A Response to Judge Harvie Wilkinson (pdf)
Alan Gura

The Heller Paradox (pdf)
Dennis A. Henigan

A Modern Historiography of the Second Amendment (pdf)
Don B. Kates

The Myth of Big-Time Gun Trafficking and the Overinterpretation of Gun Tracing Data (pdf)
Gary Kleck and Shun-Yung Kevin Wang

Why The Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America (pdf)
David Thomas Konig

The Second Amendment, Heller, and Originalist Jurisprudence (pdf)
Nelson Lund

The Supreme Court and the Uses of History: District of Columbia v. Heller (pdf)
Joyce Lee Malcolm

Heller & Originalism’s Dead Hand — In Theory and Practice (pdf)
Reva B. Siegel

Permissible Gun Regulations After Heller: Speculations About Method and Outcomes (pdf)
Mark Tushnet

Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda (pdf)
Eugene Volokh

Heller’s Catch-22 (pdf)
Adam Winkler


The Right to Know: An Approach to Gun Licenses and Public Access to Government Records (pdf)
Kelsey M. Swanson

The UCLA Law Review would also like to present the 2009-2010 Masthead, and welcome its new staff.


Brother, Can You Spare a Dime?

As many of you know all too well, times are tough in the legal market. continues to track a steady stream of layoffs, salary reductions, and deferrals at major firms.  While this may be a temporary phenomenon caused by the severity of the Great Recession, some people are starting to ask deeper questions about what this might mean for the current model of legal education.

One possibility, of course, is that students who are thinking about law school will start wondering whether it’s a good investment. Incurring huge debts when there is doubt about the availability of jobs at the end of the rainbow is risky.  If there is a decline in law school applicants (or a shift to less expensive schools) that might put some institutions out of business.  Others suggest that the ABA should consider a two-year degree program to reduce costs, or should emphasize externships or apprenticeship relationships to help students get jobs after they graduate.

At a minimum, we should try to set a positive example of cost containment.  In this respect, I was disappointed to learn that the Maurer Law School of IU- Bloomington (which is the sister of my school) has received preliminary approval for a 24.5% tuition increase for in-state students.  This increase is curious because the Maurer School has received over $100 million in gifts during the past two years. You would think that some of this largesse could be used to help students out in these difficult times.