Episode 072 – Conversation with Prof. Steven Dean

Episode 072 – Conversation with Prof. Steven Dean.mp3

This podcast features Brooklyn Law School Professor Steven A. Dean discussing his recent article, Tax Deregulation, 86 N.Y.U. L. Rev. 387 (May 2011). The article defines what tax deregulation is as it has emerged as an important feature of the tax policy landscape. It has done so even as scholars have failed to grapple with its normative significance. Prof. Dean discusses his proposal using examples from the current election campaign to illustrate the differences between tax simplification and tax deregulation. In the article, he concludes deregulatory provisions that aim to produce micro-compliance spirals offer the most promising risk-reward profiles, but even they may cause more harm than good.

Prof. Dean has expertise in Tax Law and Policy, International Tax, Tax Havens and Tax Simplification. He has written extensively on these topics with a list of his publications available here.

Family, Marriage and the Law

Brooklyn Law School Library's most recent New Book List has the 2d edition of The Geography of Love: Same-Sex Marriage & Relationship Recognition in America (The Story in Maps) by Peter Nicolas and Mike Strong (Call #KF539 .N52 2011a). This 40 page volume depicts the history and current state of marriage and relationship recognition rights for same-sex couples in the United States in charts and in maps with endnotes citing to relevant cases and statutes. Not included in this list is the recent Order by a Livingston County Supreme Court allowing a suit challenging New York's landmark marriage equality law to proceed based on claims of violations of NY's open meeting law. Beginning with a detailed history of efforts to achieve marriage rights and other forms of relationship recognition (such as domestic partnerships and civil unions) for gay and lesbian Americans, from the first lawsuit filed in 1970 in Minnesota to the Illinois civil union law that goes into effect in June 2011, it goes on to provide detailed information on relationship recognition in the United States, including which states permit same-sex couples to marry or to enter into other types of legal unions; the rules for entering into or terminating such relationships; a comparison of the rights that each state provides to same-sex couples; the extent to which same-sex relationships entered into in one state are recognized by other states; and which cities and counties have domestic partnership registries and equal benefits ordinances. It also looks at efforts to ban same-sex marriage at the ballot box, including selected vote details by state and county; a closer look at where support for such efforts was weakest and strongest; and a comparison of the processes for amending state constitutions across the US.

The BLS Library also recently added to its collection Inside the Castle: Law and the Family in 20th Century America by Joanna L. Grossman and Lawrence M. Friedman (Call #KF505 .G765 2011). This comprehensive social history of twentieth-century family law in the United States tells the story of the institution of family, exploring the ways in which law tried to penetrate and control this realm of personal life. Chapters include: Tying the knot: marriage and promises to marry -- Marriage and the state -- Marriage, law, and society: a tangled web -- Common-law marriage -- The end of heart balm -- Anything goes: love and romance in a permissive age -- The rise of sexual freedom -- Cohabitation -- Same-sex relationships -- When the music stops: dissolving a marriage and the aftermath -- Untying the knot: divorce and annulment -- Dollars and sense: the economic consequences of divorce -- Collateral damage: the children of divorce -- The old and the new generation -- The extended family: elder law and the law of inheritance.

Happy Thanksgiving

Insider Trading in Congress

Insider trading by members of Congress and their staff is back in the headlines after a CBS report on 60 minutes. See video below:



The 60 Minutes report has renewed attention in H.R 1148, the Stop Trading on Congressional Knowledge Act which would prevent members of Congress and their staffs from using information not available to the public to guide them in making or selling investments. This proposal goes back to 2006 when Rep. Louise Slaughter (D-NY) first proposed the bill in response to a story about day trading by the chief of staff of then-House Majority Leader Tom DeLay(R-TX). The Chairman of the House Financial Services Committee, Rep. Spencer Bachus (R- AL), has announced that he will schedule the first-ever House hearing on legislation to prevent lawmakers from trading on nonpublic information. Sen. Kirsten Gillibrand (D-NY) announced that she and other Senators will introduce a Senate version of the STOCK Act to prohibit members of Congress from engaging in insider trading.

Insider trading in Congress is nothing new. See Abnormal Returns from the Common Stock Investments of Members of the United States Senate, 39 J. Fin. & Quantitative Analysis 661 (2004) which studied congressional insider deals dating to the mid-1990s. The SEC has not taken any action against insider trading by senators and other congressional officers, leaving Congress to police itself so far without success. Such "insider trading" is illegal for most Americans, but the question whether it applies to members of Congress and their staff is the subject of some debate. Insider trading is not explicitly prohibited by law. The SEC website says “the term actually includes both legal and illegal conduct.” The offense is prosecuted as a violation of Rule 10b-5 of the Securities Exchange Act of 1934, a general anti-fraud rule that prohibits deception “in connection with the purchase or sale of any security.”

Commentators claim that Congressional officials are immune from federal insider trading law. But Prof. Donna M. Nagy argues that the “conventional wisdom that there is some type of legal loophole for Congressional insider trading is simply wrong. Any Member of Congress or legislative staffer who trades securities on the basis of material nonpublic information obtained through Congressional service is already doing so in violation of existing federal securities law.” See her article Insider Trading, Congressional Officials, and Duties of Entrustment, 91 B.U. Law Rev. 1105 (2011).

On the other hand, Prof. Stephen Bainbridge argues the opposite in Insider Trading Inside the Beltway saying “As to members of Congress, however, current law provides a strong argument that their trading cannot be punished under either the classic disclose or abstain or the misappropriation theory.” He concludes: “Insider trading by corporate insiders has been banned for over four decades. Throughout that period, we have known that insider trading by members of Congress was a potential problem that arguably presented even more serious policy concerns than trading by classic insiders. Congressional insider trading creates perverse legislative incentives and opens the door to serious corruption. Yet, both Congress and the SEC have turned a blind eye.”

60 Minutes reported that Chairman Bachus made bets that financial markets would collapse at the same time he met with officials from the Fed and Treasury Department in 2008 by buying options when the Dow opened at 8,604 and selling them a few days later after the market fell doubling his investment. If the STOCK Act becomes law, the true test of equal enforcement will be if the SEC will pursue civil actions and the DOJ pursue criminal actions against a powerful chairman of Congress with oversight of their funding.

For more on insider trading, see the Brooklyn Law School Library copy of the 3d edition of Insider Trading by William Wang and Marc Steinberg, an 1178 page comprehensive and up-to-date resource by two experts who provide clear and concise information on insider trading liability. Chapters include: Impact on society, the issuer, and the insider trader's employer -- The harm to individual investors from a specific insider trade -- Some basic elements of insider trading liability under Section 10(b) and Rule 10b-5 -- Those who violate Section 10(b) and Rule 10b-5 by insider trading or tipping -- The Rule 10b-5 private plaintiffs who can sue a stock market insider trader for damages -- Government enforcement.

Legal Writing Workshop at BLS

On Friday, December 2, 2011, Brooklyn Law School will host a one-day workshop sponsored by the Legal Writing Institute. It is one of a number of events scheduled at law schools around the country. BLS Librarian Kathy Darvil, who will co-present with Courtney Selby, Director of Hofstra Law Library on Legal Research for the New Millennials, will discuss her recent paper Think [and Practice] Like a Lawyer: Legal Research for the New Millennials which she co-authored with Prof. Aliza Kaplan.

The topics included in the workshops will include teaching legal writing; teaching persuasive writing, appellate advocacy, and moot court; legal research update; and other innovations. The workshops have, in the past, proven a great opportunity for legal writing faculty around the country to meet and share ideas and a great opportunity for adjunct faculty who are often unable to travel to gain some valuable experience and insight. The one-day workshops are a fundraiser for the LWI, and attendees are asked to pay a $100 registration fee, which will be donated to the LWI to enable it to continue its many fine and important programs. Host School attendees are asked to pay $25. Scholarships will be available for those who cannot pay the registration fee. Please register for the workshop at this online link.

Financial Institution Fraud Prosecutions Decline

The Transactional Records Access Clearinghouse (TRAC) from Syracuse University, a source for comprehensive, independent and nonpartisan information about federal enforcement, staffing and spending, recently issued a report that “Federal prosecutions for financial institution fraud have continued their downward slide despite the financial troubles reported in this sector. The latest available data from the Justice Department show that during the first eleven months of FY 2011 the government reported 1,251 new prosecutions were filed. If this activity continues at the same pace, the annual total of prosecutions will be 1,365 for this fiscal year, down 28.6 percent from their numbers of just five years ago and less than half the level prevalent a decade ago.” See chart below showing the long term trend in these prosecutions over the last two decades.










TRACfed is available electronically to Brooklyn Law School members through the BLS Library subscription which allows users to generate reports of specific data from a variety of statistics released by the federal government. Coverage includes all criminal matters recommended for prosecution in the federal courts and the civil income tax audits by the IRS. It also includes criminal, civil, and administrative law enforcement and sections on judges and prosecutors, federal funding for public services and national demographic and economic information by county, state or federal judicial district. TRAC maintains two Web sites – one is a free public site, the other is a data warehouse known as TRACFED. Both can be accessed from TRAC’s public site and home page.

SEC Settlements "Just For Show"?

The Securities and Exchange Commission announced that it filed a record 735 enforcement actions and collected some $2.8 billion in sanctions in the fiscal year that ended September 30 with 146 of these actions being taken against investment advisors, a 30% increase over 2010. The previous year, it brought 677 cases collecting slightly more in penalties -- $2.85 billion. The record number of enforcement actions is a result of the enforcement division undergoing its most “significant” reorganization in 2009 and 2010 since being established in the early 1970s. The number of enforcement actions against advisors and broker-dealers also increased, going from 112 in 2010 to 146 at the end of September. The chart below from the SEC website shows Year-by-Year SEC Enforcement Actions 2002 to 2011.














SEC Chairman Mary Schapiro boasts of increased enforcement in a statement announcing the enforcement results: “We continue to build an unmatched record of holding wrongdoers accountable and returning money to harmed investors. I am proud of our Enforcement Division’s many talented professionals and their efforts that resulted in a broad array of significant enforcement actions, including those related to the financial crisis and its aftermath.”

Increased fines are not the only measure of the effectiveness of an agency’s enforcement efforts. A recent article reports that in the case of U.S. Securities and Exchange Commission v. Citigroup Global Markets Inc. pending in the U.S. District Court for the Southern District of New York, US District Judge Jed S. Rakoff is considering whether to approve Citigroup's proposed settlement of $285 million ($95 million plus $190 million in disgorgement and interest) with the SEC. Expressing doubts about whether the agreement is sufficient for alleged misdeeds over mortgage-related securities in a deal where Citibank made a $160 million profit and caused its customers to lose $700 million, Judge stopped short of saying he would reject the settlement withholding his approval of the settlement which allows Citibank to avoid prosecution without any admission of wrongdoing. He ridiculed the SEC’s decision to describe the crime as “negligence” instead of intentional fraud, questioning whether a bank making a profit of $160 million by causing losses of $700 million to its customers can conceivably be described as an accident. See Judge Rakoff’s his questions about the proposed settlement in his Order dated October 27 and Citbank's memorandum in response.

For in depth research on this topic, see the Brooklyn Law School Library resource from its subscription to BNA, the Corporate Practice Series Portfolio No. 77-4th, The SEC Enforcement Process: Practice and Procedure in Handling an SEC Investigation which discusses practice and procedure in handling both informal and formal investigations by the SEC's Division of Enforcement, including responding to subpoenas, producing documents, and testimony; when and whether companies should conduct internal investigations; the Wells process and settlement discussions; remedies; and consent decrees. The portfolio also examines related issues, including disclosure of an SEC investigation and issues arising out of parallel civil and criminal inquiries.

National Adoption Month

November is National Adoption Month, a month set aside each year to raise awareness about the adoption of children and youth from foster care. The Administration for Children and Families estimates there are 107,000 children and youth in the foster care system waiting for families to adopt them. Saturday November 19, 2011 is National Adoption Day when courts around the country will be opening their doors to finalize the adoption of foster children. Several County Courts in NY State are hosting Adoption Day celebrations in recognition of National Adoption Month. The New York State Citizens’ Coalition for Children (NYSCCC) which represents the citizen’s viewpoint and works to improve and expand the services available to children and families includes on its website these resources:

• The Basics: Adoption in New York State from the NYC Cross Borough Collaboration
• Adoption in New York from the NYS Bar Association Pamphlet
• New NY State Law Allows Unmarried Couples to Jointly Adopt

Brooklyn Law School Library has in its collection The Adoption Law Handbook: Practice, Resources, and Forms for Family Law Professionals by Jennifer Fairfax (Call #KF545 .F35 2011) published by the American Bar Association, Section of Family Law. The book has chapters on Adoption overview -- Client intake, advice, and consultations -- Home study -- Domestic private agency adoption -- Public agency adoptions -- Independent adoption -- Interstate compact on placement of children -- Biological fathers -- Consent, relinquishment, and termination of parental rights -- Second-parent or co-parent adoptions -- Post-adoption contact agreements (PACA) -- Indian Child Welfare Act -- Stepparent adoptions -- Cost and financing -- Adult adoption -- Open adoption records -- Disruption and dissolution -- Failure of disclosure and tort of wrongful adoption.

Get Out and Vote

Voter turnout thoughtout the country is likely to be low on Election Day 2011 except for highly disputed contests such as those in Ohio where voters decide Issue 2, a Referendum on New Law Relative to Government Union Contracts, and Mississippi where they vote on Initiative #26, a citizen-led measure to amend the Mississippi constitution to define human life as starting at “the moment of fertilization, cloning or the functional equivalent thereof.” Low turnout is most pronounced in off-year elections for state legislators and local officials. Too often, mayors of major cities often are elected with single-digit turnout.

Even so, Election Day is a time to reflect on the hard won history of expanding access to the polls. The ACLU notes that this Election Day, we are faced with a dramatic rollback of voting access with a trend of voter suppression laws introduced and enacted in many state legislatures. During the 2011 legislative season, more than 30 states legislatures introduced such measures and 14 states advanced measures that would create more barriers to voting.

On the subject of voting, the Brooklyn Law School Library has in its collection Race, Reform, and Regulation of the Electoral Process: Recurring Puzzles in American Democracy edited by Guy-Uriel E. Charles, Heather K. Gerken and Michael S. Kang. It offers a critical re-evaluation of three fundamental themes in American democracy: the relationship between race and politics, the performance and reform of election systems, and the role of courts in regulating the political process. With contributions from leading voices in election law and social science, it addresses recurring questions for American democracy and identifies new challenges for the twenty-first century. The book provides intellectual guideposts for future scholarship and policymaking in American democracy.

Oxford Scholarship Online

Brooklyn Law School Library's subscription to Oxford Scholarship Online (OSO), one of the leading academic research resources in the world, offers full-text access to academic monographs in eighteen subject areas in the humanities, social sciences, science, medicine, and law. Recently, OSO re-launched its site with new features, new content, and a brand new look and feel. For an overview of the new look site, take the tour. For a full list of new features, see the OSO New Features Guide.

According to OUP, users can now access seminal and prize-winning titles through the OSO Archive with content initially available in eight subject areas: Business & Management, Economics & Finance, History, Literature, Music, Philosophy, Political Science, and Religion. Further OSO Archive content in the science, medical, and law disciplines, as well as Classics and Linguistics, will follow in 2012.

The law module has the full text of 440 titles including more than 30 recently added new titles among which are:

Blame it on the WTO? — A Human Rights Critique
The Boundaries of the Criminal Law
Compensation and Restitution in Investor-State Arbitration — Principles and Practice
European and International Media Law — Liberal Democracy, Trade, and the New Media
The Evolution of the European Convention on Human Rights — From Its Inception to the Creation of a Permanent Court of Human Rights
Extraterritorial Application of Human Rights Treaties
International Humanitarian Law and International Human Rights Law
Interpreting the Nuclear Non-Proliferation Treaty
The Lisbon Treaty – Law, Politics, and Treaty Reform
The Optional Protocol to the UN Convention against Torture
Piracy and Armed Robbery at Sea — The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden
State Responsibility for International Terrorism