Taxes on Bonuses of TARP Recipients

Public outrage over the $165 million in bonuses paid to AIG executives after it received $173 billion in bailout funds spurred the House into passing H.R. 1586 by an overwhelming majority vote of 328-93 on March 19. The House bill would levy a 90 % tax on any bonuses from bailed-out firms (TARP recipients) paid out in 2009 to individuals with incomes over $250,000. Prospects for Senate passage of S. 651, the companion bill in the upper chamber, are looking dimmer each day. The Senate bill would impose an excise tax equal to 35% of the bonus on both the employee and entity effectively taxing the bonuses at a 70% rate.

Now the TaxProf Blog reports that the Congressional Research Service has issued a report that deals with many of the potential challenges to H.R. 1586 and S. 651 if they became law. The report called Retroactive Taxation of Executive Bonuses: Constitutionality of H.R. 1586 and S. 651 addresses the prohibition under the US Constitution of ex-post facto laws and whether these bills could be considered "Bills of Attainder".

U.S. Const. Art. I, § 9, cl. 3 reads “No Bill of Attainder or ex post facto Law shall be passed.”

The report disposes of the ex-post fact issue fairly quickly by citing to US v. Brown, 381 U.S. 437, 468 (1965) where Supreme Court defined a bill of attainder as a “law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” The thornier issue is whether the proposed legislation would amount to a Bill of Attainder. The important role of legislative history is discussed at page 16 of the report. Whatever final action Congress takes, the details of the legislative history will determine whether the resulting law will be affirmed or declared unconstitutional.

An interesting aside is whether A.I.G. executives who returned their bonus still have to pay taxes on them. See the NY Times article Returned Bonuses May Still Be Taxable.

For further reading in the BLS collection, consult SARA, the online catalog, for Limits on States: A Reference Guide to the United States Constitution by James M. McGoldrick with a foreword by Kenneth Starr (Call # KF4600 .M36 2005).

NYLJ 100 Charts

The New York Law Journal Magazine publishes an end of the year list of the NYLJ 100 Largest Private Law Offices. At press time, the financial crisis had just hit the country resulting in some startling changes to the number of attorneys that populate New York law firms and layoffs were being announced in many of the larger firms.

Additional charts in the Magazine include:

· the NYLJ 100: The Largest Private Law Offices in New York State
· the Largest Minority-Owned Law Firms in New York State
· Attorney General, Corporation Counsel and U.S. Attorneys' Offices
· a list of Attorney Concentration by County and
· information about the District Attorneys' Offices in New York State

The Magazine also has a chart with statistical information on the fifteen New York State Law Schools detailing the number of Full-Time/Part-Time Students, Percentage of Minority and Women Students, Faculty/Student Ratio, Tuition Rates, and Bar Pass Rates for the July 2007 exam.

Madoff Criminal Case Resource Links

The Office of the United States Department of Justice for the Southern District of New York has compiled a resource page with links to PDFs of court documents from the United States v. Bernard L. Madoff criminal case 09 Cr. 213 (DC). The case began on December 11, 2008, when Bernard L. Madoff was arrested on a criminal complaint alleging one count of securities fraud.

On March 10, 2009, a Criminal Information was filed in Manhattan federal court charging Bernard L. Madoff with eleven felony charges including securities fraud, investment adviser fraud, mail fraud, wire fraud, three counts of money laundering, false statements, perjury, false filings with the United States Securities and Exchange Commission ("SEC"), and theft from an employee benefit plan. The criminal case concluded on March 12, 2009 when Madoff pleaded guilty to all eleven counts in the Information. Bernard Madoff's guilty plea allocution can be found at page 23 of the Transcript of the March 12, 2009 Guilty Plea Proceeding,

Madoff faces a statutory maximum sentence of 150 years’ incarceration. Madoff is also subject to mandatory restitution and faces fines up to twice the gross gain or loss derived from the offenses.

The site has links to http://www.madoff.com/ where the receiver will be posting information about its activities and to http://www.sipc.org/ where the trustee will be posting information about its activities. Investors and other interested parties should consult those websites for more information.

Brooklyn Bar Association CLE

In the next two months, the Brooklyn Bar Association will host a series of educational programs and events for legal practitioners and law students. Among the events sponsored by the BBA are these which will take place at the BBA’s offices at 123 Remsen Street:

On-Line Legal Research - Using the West Key Digest System March 23, 2009 (1:00-2:00pm) and Using Lexis April 6, 2009 (1:00-2:00pm) Brooklyn Supreme Court Senior Law Librarian, Jacqueline Cantwell will cover the basics of online research from signing on, retrieving a case when you have a citation or party name, how to update by Keycite and Shepard’s, tables of authorities, retrieving New York Code sections, and e-mailing and printing cases.

Traffic Violations Update - March 25, 2009 (6:00-8:00pm) The program will feature leading figures in this area, Hon. John L. Araujo, senior administrative law judge, New York state Dept. of Motor Vehicles; Hon. Stephen Borkan, a supervising administrative law judge; Karen Friedman, President of the Association of Motor Vehicle Trial Attorneys; Jeffrey Levine, whose practice focuses on handling chemical test refusal hearings and Michael Beer, an attorney who defends clients against traffic violation charges. The agenda promises to cover the prima facie elements and defenses to common traffic violations such as speeding, seatbelts, cell phone violations and others. Participants will learn about chemical test refusal hearings and see a demonstration of the type of laser gun used by police.

Electronic Filing in New York State Courts - April 20, 2009 (6:00-8:00pm) Jeff Carucci, the Statewide Coordinator for E-Filing and Chris Gibson, the Case Management Coordinator for the E-Filing Resource Center will lead this overview of the E-Filing program in NYS Courts. They will demonstrate in detail how the e-filing software works and the benefits it offers to users.

Ethics in Litigation Financing - April 28, 2009 (5:30-7:30pm) Former BLS Prof. Anthony Sebok will present a course on legal ethics and client counseling in the area of legal finance; current New York law concerning the legality of non-recourse funding under Judiciary Law §489; the NY rules of professional conduct; the history of champerty (a prohibition against the sale of a party's interest in a lawsuit) and maintenance (intermeddling of an uninterested party to encourage a lawsuit) in English and American common law; and the policy reasons that have led the NY courts and legislature to permit non-recourse funding of litigation.

NY Judge Rules Bonuses Not Trade Secrets

Justice Bernard J. Fried of the Supreme Court of the State of New York, New York County issued a ruling in People v. Thain that is interesting reading. The case began with a petition filed by the NY Attorney General to compel compliance with a subpoena issued to John Thain, the former CEO of Merrill Lynch. The petition was filed under the Martin Act, General Business Law §352 et seq., as part of the AG’s investigation of $3.6 billion in 2008 bonuses paid out by Merrill. Both Merrill and Bank of America sought to intervene contending that the bonus information amounted to a trade secret. Justice Fried’s ruling directs BofA to turn over to the NY Attorney General a list of employees who received bonuses paid out by Merrill Lynch & Co. on the eve of the financially strained brokerage house's merger with the bank.

A complete docket report for the case is freely available at the Supreme Court Records On-Line Library ("SCROLL").

Justice Fried ruled that employees can have no reasonable expectation of privacy in the information when they themselves are free to share it. "The Martin Act vests in the Attorney General the discretion to decide whether to keep the information that he gathers in the course of his investigation secret or public. The intervenors have no cognizable privacy interest that undermines that statutory discretion. The record does not support the intervenors’ claim that the employee compensation is a trade secret."

Justice Fried, a graduate of the Class of 1965, is a BLS Adjunct Professor of Law and teaches Trial Advocacy.

For further details of the case, see the National Law Journal article Bank of America Ordered to Give Bonus Data to N.Y. Attorney General written by Noeleen G. Walder for the New York Law Journal.

Episode 039 - Conversation with Professor of Law Edward K. Cheng

Episode 039 - Conversation with Professor of Law Edward K. Cheng.mp3

In this podcast, Professor of Law Edward K. Cheng talks about his recent The Myth of the Generalist Judge, 61 Stanford Law Review 519. In the article, Professor Cheng addresses the question of whether judges really practice the generalist ideal empirically after having tested the question by examining opinion assignments in the federal courts of appeals from 1995-2005. The survey results revealed that opinion specialization is a regular part of circuit court practice, and that a significant number of judges do in fact specialize in specific subject areas. Professor Cheng also assesses the desirability of opinion specialization and sees it as more than a mere loophole in court operating procedures. In his view, opinion specialization is an important feature of judicial practice that could increase judicial expertise without incurring some of the negative costs commonly associated with specialized courts.

Prof. Cheng is an authority on scientific, expert, and statistical evidence and has written extensively in those areas. For more of his scholarship, see his Selected Works page.

Episode 038 - Treaties in Twenty Minutes

Episode 038 - Treaties in Twenty Minutes: Part I.mp3
Episode 038 - Treaties in Twenty Minutes: Part II.mp3

Jean Davis, Reference Librarian/International and Foreign Law Specialist and Adjunct Associate Professor of Law, has recorded a podcast called Treaties in Twenty Minutes for the Advanced Legal Research class. The podcast is part of a Treaty Research Guide that Prof. Davis created for the class using libguide, an application recently acquired by the Library. The focus of the guide is to help researchers find and cite to treaties in compliance with Bluebook rules.

Signing Statements in the News

The development this week on the use of presidential signing statements is welcome news. Presidential signing statements, official pronouncements issued by the President contemporaneously to the signing of a bill into law the White House, have been used as far back as 1830 by President Jackson when he raised objections to an appropriations bill. A history of the use of signing statements is laid out in detail in a September 2007 CRS Report entitled Presidential Signing Statements: Constitutional and Institutional Implications.

The extensive use of signing statements during the Bush Administration drew criticism that led to the American Bar Association voting unanimously to investigate whether President Bush exceeded his constitutional authority in reserving the right to ignore laws enacted during his term of office. See Recommendation by the American Bar Association, Task Force on Presidential Signing Statements and the Separation of Powers Doctrine in SARA, the BLS Library catalog.

This week’s Memorandum for the Heads of Executive Departments and Agencies on the Subject of Presidential Signing Statements by President Obama directs executive branch departments and agencies to seek the advice of the Attorney General before relying on signing statements issued prior to March 9, 2009.

The memo also describes legitimate uses of signing statements and sets out principles that the administration will adhere to in order to avoid abusive use of signing statements. Specifically, paragraph 3 of the memo states:

To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.

President Obama has not ended the practice of issuing signing statements as can be seen from his statement issued on signing H.R. 1, the American Recovery and Reinvestment Act of 2009 (Public Law 111-5). The statement is more of a rhetorical signing statement than one seeking to modify the meaning of the statute like those of the prior administration. A Jurist report refers to Congressional critics including Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and ranking Republican member Arlen Specter (R-PA) who said that Bush's signing statements impermissibly intruded upon Congress's power to write and enact laws under Article I of the Constitution which vests legislative powers exclusively to the Congress.

Episode 037 - Conversation with Professor of Law Minna J. Kotkin

Episode 037 - Conversation with Professor of Law Minna J. Kotkin.mp3

In this episode, Professor of Law Minna J. Kotkin discusses her recent article Of Authorship and Audacity: An Empirical Study of Gender Disparity and Privilege in the Top Ten Law Reviews available at SSRN. In the article, Professor Kotkin addresses the results of a study that she conducted with the help of BLS law students to determine the extent of gender bias in the leading law reviews in the US. The article points out that law schools look to article placement as a significant consideration in hiring, promotion, tenure, and lateral mobility. The statistical study demonstrates significant gender disparity. Published women faculty authors were at 20% compared to their percentage in the national tenured/tenure-track professoriate of 31%.

Professor Kotkin offers some possible explanations for the gender disparity, including: years and subject matter of teaching; affirmative action; institutional and family commitments; and social science theories. But none fully explains the disparity. She concludes by suggesting that editorial boards examine their selection processes for unconscious bias with regard to gender and conscious bias with regard to privilege and that they consider adopting true anonymous submissions. Prof. Kotkin also considers that women academics do not pursue “audacity” techniques, such as aggressive expediting and soliciting endorsements to further article placement in elite journals.

Minna J. Kotkin has been a Professor of Law at Brooklyn Law School since 1984. She is a 1975 magna cum laude graduate of Rutgers University School of Law and was Editor in Chief of the Rutgers Law Journal. She has written and lectured extensively on issues of employment discrimination and clinical legal education. A list of her many contributions to legal scholarship are available on her Selected Works page.

US Supreme Court on Preemption

An earlier post on this site discussed Wyeth v. Levine, the case before the US Supreme Court on whether federal law preempts state torts claims imposing liability on drug labeling that the FDA had previously approved. Today, the Court issued its decision rejecting the preemption argument made by the pharmaceutical defendant by a 6-3 vote. Justice Stevens wrote the majority opinion. Justice Alito wrote the dissent in which Chief Justice Roberts and Justice Scalia joined.

The factual background involves the plaintiff Levine, a children's guitarist in Vermont who went to a clinic for treatment of a severe migraine headache and associated nausea. She was originally treated with intramuscular injections of Demerol (for headache) and the pharmaceutical defendant Wyeth's drug, Phenergan (for nausea). Intramuscular injection was the preferred method for administering Phenergan identified in the product's labeling. When she had no relief from that treatment, Levine returned to the clinic, where she received a second dose of Phenergan by IV push injection. Unfortunately, the needle was inserted into an artery rather than a vein leading to gangrene and the amputation of Levine’s arm. Levine filed a failure-to-warn product liability case against the pharmaceutical company and obtained a jury verdict in amount of $6.7 million. The defendant Wyeth argued that Vermont's stricter regulations on administering the drug were preempted by less stringent federal regulations. The preemption doctrine has been used by drug manufacturers as a shield in lawsuits brought by injured consumers, adversely impacting consumers.

A NY Times article entitled Drug Approval Is Not a Shield From Lawsuits, Justices Rule suggests that preemption is no longer a valid defense for drug companies. While the decision appears on first reading to be a defeat for the preemption doctrine that federal-level approval stops liability suits at the state level, a closer reading suggests that the preemption doctrine is not entirely dead. At page 8 of the opinion, the Court draws a distinction between express and implied preemption. It also finds that congressional intent is the "touchstone" of implied preemption cases as well as express preemption cases, and that the presumption against preemption applies to implied preemption cases. The WSJ Law Blog has its take on the decision in its post A Big Day for State Tort Law: A Closer Look at Wyeth v. Levine suggesting that the case is really about statutory interpretation. In addition to the Wyeth case, the Court has recently addressed the preemption doctrine in its decisions in Riegel v. Medtronic, Inc. and Altria Group Inc. v. Good.