May 2010

  • May 6, 2010
    Guest Post

    By Lee Harris, Associate Professor of Law, University of Memphis, where he teaches coporate law. Prof. Harris' most recent article, "Shareholder Campaign Funds: A Campaign Subsidy Scheme for Corporate Elections," can be downloaded here.

    Goldman Sachs has a stellar reputation. Even Warren Buffet, who recently plucked down around $5 billion to purchase a piece of the firm, trusts Goldman.

    But, perhaps the Goldman magic is just that -- smoke, mirrors, a fancy outfit, a distractingly attractive assistant, a show built on illusion.

    Consider the Securities and Exchange Commission's recent lawsuit against Goldman and the impending threat of criminal action against the firm for some of its conduct in allegedly deceiving investors and perhaps even helping instigate the mortgage meltdown and current financial crises.

    With the lawsuit, Goldman joins the long list of other storied financial services companies that have been accused of misconduct recently, including AIG and Stanford Financial, among others.

    According to the SEC, Goldman allegedly helped create, hype, recommend, and ultimately sell investments in housing that was doomed to fail. They charge that Goldman and the employee who allegedly helped size and package the doomed investment, Fabrice Tourre, a French national, committed fraud by failing to disclose details regarding the investment. One e-mail apparently from a Goldman employee, not the Frenchman, described such investments as "sh***y".

    Excuse my French.

  • May 6, 2010
    Guest Post

    By Marci A. Hamilton, Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University
    So often, cases at the Supreme Court disappoint, because the media has followed the backstory, as it is called, but the Court has in its sights more technical issues. Its recent decision in Salazar v. Buono is further evidence of this phenomenon.

    It is understandable why the media would focus on the backstory - a cross was erected by the Veterans of Foreign Wars 70 years ago to honor World War I fallen soldiers. It is located in the on Sunrise Rock in the Mojave National Preserve in San Bernardino County, California. In 2001, Frank Buono, filed suit against the Secretary of the Department of the Interior on the grounds that the cross violates the separation of church and state. The District Court held it was unconstitutional and entered an injunction ordering that it not be displayed. This is when it gets entertaining, because Congress enters the picture.

    First, Congress designates the cross as a national memorial. Then it bars federal funds from being used to dismantle federal memorials. Then it enters into a "land transfer" deal with the VFW, which provides that a small plot surrounding the cross's base is to become private while the federal government gets a small piece of the VFW's land. The District Court ruled that the land transfer was unconstitutional and the Ninth Circuit affirmed twice.

    If this order of events sounds familiar, it should. After the Ninth Circuit declared that the inclusion of "under God" in the Pledge of Allegiance violated the separation of church and state, members fell over each other rushing outside the Capitol to place their hands over their hearts and loudly recite the full Pledge of Allegiance, "under God" and all. When the Elk Grove Unified School Dist. v. Newdow case got to the Supreme Court, the Justices granted certiorari, but then apparently got cold feet, because they avoided the Establishment Clause issue entirely and decided the case on a dubious interpretation of state law and standing doctrine.

  • May 6, 2010
    The Law of American State Constitutions
    Robert F. Williams

    By Robert F. Williams, Distinguished Professor of Law, Rutgers University School of Law at Camden & Associate Director, Center for State Constitutional Studies

    In recent years, state constitutions have become the focal point of controversies over same-sex marriage, eminent domain reform, resistance to health care reform, gun control, free speech on private property, equal education funding, school vouchers, recall of elected officials and many other important matters of public policy. State constitutional law is now here to stay as an integral feature of American constitutional law. "The Law of American State Constitutions" is intended to provide lawyers, judges, government officials, scholars and students with a handy and readable reference tool for the study of, and participation in this growing arena.

    When talking about state constitutions, it is often difficult to generalize. Many will feel a familiarity with some state constitutions because of similarities with the federal Constitution. But there are many differences, as well. State constitutions perform different functions (generally limit plenary powers rather than grant enumerated powers), have different origins (from the people themselves), and have a different (longer) form. The content and quality of state constitutions is also very different, with state constitutions containing many more policy-oriented provisions, built up over time, as well as provisions concerning the character, virtue and even morality of the state's people. The differences can obscure one of the most fundamental aspects of state constitutions: the significant impact that a number of them adopted before the federal Constitution, had on our national legal charter.

  • May 5, 2010

    The Supreme Court earlier this week asked the U.S. Solicitor General's Office to provide its thoughts on whether laws that prohibit felons from voting subvert the Voting Rights Act, The National Law Journal reports. The Court's order came in the case of Simmons v. Galvin, which involves a federal appeals court decision invalidating a Massachusetts constitutional amendment barring prisoners from voting. The legal newspaper maintains that after "years of expressing little interest," in the matter, the Supreme Court is seeking to put the "administration on the spot," regarding such laws. SCOTUSblog's Lyle Denniston reports that once the high court receives the administration's response, "for which there is no timetable, the Justices will decide whether to accept the case for review."

    In a recent Issue Brief published by ACS, authors Deborah J. Vagins and Erika Wood explore the laws that bar individuals with criminal records from voting.

    They maintain, "Many of these criminal disenfranchisement laws are rooted in the Jim Crow era, and were created with the purpose of barring African Americans from voting. The impact of these laws continues today. Nationwide, 13% of African American men have lost the right to vote as a result of a criminal conviction - a rate seven times the national average."

    Vagins, legislative counsel for the Washington Legislative Office of the ACLU, and Wood, deputy director of the Democracy Program at the Brennan Center for Justice, urge enactment of the federal Democracy Restoration Act "to restore voting rights to millions of American citizens in federal elections and to finally redress a centuries-old injustice."

    Their Issue Brief is available here.

  • May 5, 2010

    After being tracked by the number of a disposable cell phone, federal authorities arrested Faisal Shahzad n connection with a failed Times Square car-bombing. The arrest of Shahzad, an American citizen born in Pakistan, prompted calls by some that Shahzad not be read his Miranda rights.

    Sen. John McCain, a former presidential candidate and the ranking Republican on the Senate Armed Services Committee, responded to a question about Mirandizing Shahzad, saying, "Obviously that would be a serious mistake until all the information is gathered."

    On the other side of Capitol Hill, the ranking Republican on the House Homeland Security Committee, Rep. Peter King, responded to a similar question, saying, "Did they Mirandize him? I know he's an American citizen but still."

    Reporting for The American Prospect, Adam Serwer writes: