Episode 043 - Conversation with Professor of Law David J. Reiss

Episode 043 - Conversation with Professor of Law David J. Reiss.mp3

In this pod cast, BLS Professor of Law David J. Reiss discusses his latest paper Ratings Failure: The Need for a Consumer Protection Agenda in Rating Agency Regulation. In the paper, Prof. Reiss describes how, as the credit crisis unfolded, rating agencies were properly identified as playing a central role in causing the crisis and misleading investors and that they took positions that were particularly bad for many homeowners.

His article first reviews the explosive growth of the subprime mortgage market. It then discusses the ways in which the leading rating agencies, Standard & Poor's, Moody's and Fitch, acted as government-approved gatekeepers to the financial markets and contributed to the rapid expansion of the subprime market. These three entities profited from the growth of that market and suppressed efforts by states to crack down on the predatory lending practices that had become endemic to it.

The article concludes that ongoing efforts to reform the regulation of the rating agencies fail to address their systemic bias against the public interest. As their regulators seek to tighten oversight of these important players in the financial markets, it is important to ensure that future regulation provides additional protection for consumers as well.

For more of Prof. Reiss' scholarship, see his Selected Works page.

US Senate Apology for Slavery

From September 1862 to January 1863, Abraham Lincoln issued several draft documents that became the Emancipation Proclamation declaring free all slaves residing in the territory in rebellion against the federal government. According to the 1860 U.S. census, nearly four million slaves were held in a total population of just over 12 million in the 15 states in which slavery was legal. The Proclamation did not actually end the practice of slavery in America which had been in existence for more than two and a half centuries from 1607 to 1865. The end of slavery came several years later with the passage of the 13th Amendment to the Constitution on Dec. 18, 1865.

More than 146 years later, the US Senate recently passed by voice vote a resolution apologizing for slavery. The House passed a similar resolution last year. A key difference in the House and Senate versions relates to the issue of reparations. The Senate resolution contains a disclaimer that:

Nothing in this resolution (A) authorizes or supports any claim against the United States; or (B) serves as a settlement of any claim against the United States.

The House version has no such language. According to the WSJ Law Blog, The House is expected to revisit the issue next week in preparation for a joint congressional resolution. Whether the final resolution addresses the question of reparations is likely to be a topic of debate in and out of Congress.

The BLS Library has in its collection a number of items that address the topic of reparations including:

Reparations Pro & Con by Alfred L. Brophy (Call #KF4757 .B743 2006) with chapters titled: Reparations definitions -- Black (and other) reparations in history -- The modern Black reparations movement: why now, why, and what? -- Against reparations -- Evaluating reparations lawsuits -- Legislative reparations -- Reparations future, realistic reparations, and models of reparations

Uncivil Wars: the Controversy over Reparations for Slavery by David Horowitz (Call #E185.8 .H67 2002). This item has bibliographical references and chapters titled The fault line -- The controversy -- The ad -- The administrators (Berkeley) -- The students (Wisconsin) -- The professors (Brown) -- Traducing history -- Racism and free speech -- Reparations and the American idea

Nanotechnology, Law and Policy

On Thursday, June 25 from 6pm to 8pm, the New York City Bar Association is hosting an event entitled Do Good Things Really Come in Small Packages? Nanotechnology, Law and Policy: How our Legal System Handles Emerging Technologies. BLS Professor Edward Cheng is one of the program speakers along with Dan Abrahams of Columbia University's Science and Technology Ventures, Prof. Gregory Mandel of Temple University's Beasley School of Law and John Weiner, Associate Director for Policy in FDA's Office of Combination Products.

The subject of the event, nanotechnology, is the study of the control of matter on an atomic and molecular scale. Generally nanotechnology deals with structures of the size 100 nanometers or smaller, and involves developing materials or devices within that size. With much debate on the implications of nanotechnology and its potential for creating new materials and devices in medicine, electronics and energy production. Nanotechnology also raises many of the same issues as with any introduction of new technology, including concerns about toxicity, the environmental impact of nanomaterials, and their potential effects on global economics and other areas.

The NYSBA event focuses on whether special regulation of nanotechnology is warranted. As nanotechnology revolutionizes fields as diverse as health care, clean energy and the environment, the question arises as to how law and policy can shape the way the public might benefit from advances in this new technology and whether our legal system may need to guard against risks to public health and safety posed by such scientific advances.

This 10 minute video shows how researchers are manipulating particles at the atomic level, ushering in potential cures for cancer, clothes that don't stain, and solar panels as thick as a sheet of paper.

Happy Gay Pride Day!

The NYT's Caucus blog has an article entitled Obama Invites Gay Rights Advocates to White House. The White House cocktail party is set to take place on Monday, June 29, one day after the 40th anniversary of the Stonewall Rebellion, the 1969 Greenwich Village demonstrations that gave birth to the modern gay rights movement. The event is likely an effort to defuse mounting anger among LGBT organizations over the Obama Administration’s failure to honor its commitment to reverse discriminatory federal laws like Don’t Ask, Don’t Tell (DADT) and the Defense of Marriage Act (DOMA).

As the NY Times article states, “Whether Mr. Obama will address the complaints at Monday’s reception is unclear. One person who received the invitation said the White House was billing the event as a celebration, akin to the festive affairs the administration holds on St. Patrick’s Day or Cinco de Mayo.”

To date, DADT still remains the law despite a campaign promise to reverse it and the President has failed to block the dismissal of gays and lesbians facing courts martial for disclosing their sexual orientation. Moreover, the DOJ earlier this month filed a brief in support of its motion to dismiss the complaint in Smelt v. United States, the first gay marriage case filed in federal court challenging DOMA. The language in the brief included this argument at pages 27-28:

Section 3 of DOMA merely clarifies that federal policy is to make certain benefits available only to those persons united in heterosexual marriage, as opposed to any other possible relationship defined by law, family, or affection. As a result, gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage.

As the NY Times article states, “Whether Mr. Obama will address the complaints at Monday’s reception is unclear. One person who received the invitation said the White House was billing the event as a celebration, akin to the festive affairs the administration holds on St. Patrick’s Day or Cinco de Mayo.”

Has the RIAA Gone Too Far?

In previous posts here and here and here, the BLS Library Blog has tracked news about the Recording Industry Association of America (RIAA). In what appears to be its latest victory, the RIAA convinced a jury in a Minnesota federal court to enter a verdict against Jammie Thomas-Rasset, a 32-year-old Minnesota woman, for illegally downloading music from the Internet. The jury fined her $80,000 each for 24 songs for a total of $1.9 million. The case was tried earlier in 2007, when a different jury assessed Thomas-Rasset a $220,000 penalty ($9,100 per song). The defendant filed an appeal and won a retrial, which resulted in this week's conclusion.

The blogosphere is abuzz with outrage beginning within seconds after the verdict was announced. "I think $2 million for downloading 24 songs strikes almost everyone as being a little disproportionate," says Fred von Lohmann, a senior staff attorney with the Electronic Frontier Foundation in an article entitled Record Labels' $1.9 Million Win in Thomas Retrial Constitutional?. "According to people who were in the courtroom, almost everyone inside uttered an audible gasp when that verdict came in."

The size of the fine was guided by U.S. copyright law, which provides for a penalty of anywhere from $750 to $150,000 per violation. It was up to the jury, however, to decide where to land within that spectrum. The problem, von Lohmann says, is that there are no meaningful guidelines on how that decision should be reached. "The copyright law entitles people to essentially pull a number out of a hat, all the way up to $150,000 per song," he says. "If the copyright law were more reasonable--if, say, you had to make some sort of reasonable guess as to what the actual harm was--then I think juries would come in with more reasonable results."

The Supreme Court has previously indicated that "grossly excessive" punitive damage awards are a violation of the U.S. Constitution. An award can be considered "grossly excessive" if there's too big of a gap between the actual harm done and the amount of money being named. Courts can also consider the "degree of reprehensibility" of the defendant's actions, along with how the penalty compares to similar ones issued in the past. It seems, then, there may be a clash between two ideals: The parameters of the copyright law and the protection provided by the Constitution. What's more, as the Electronic Frontier Foundation points out, recent Supreme Court rulings suggest a jury should determine damages based only on what's justified for the single defendant--not for the broader purpose of "sending a message" to the general public.

As for what steps the defendant Thomas-Rasset will take next, she could move to settle the case; she could ask the judge to reduce the penalty; or she could file an appeal based on the constitutional concerns. Unlike those found guilty of copyright infringement in the past when the law prevented a copyright infringeement defendant from discharging an award in bankruptcy court, Thomas-Rasset can use the bankruptcy courts to avoid having to pay the full cost. Last year, the Ninth Circuit Court of Appeals found in the case of Barboza vs. New Form, that "willful" meant one thing in civil court and something else in bankruptcy court. For more, see CNET's article Bankruptcy Could Protect Jammie Thomas.

CALI Conference for Law School Computing

Brooklyn Law School was well represented at the 19th Annual Conference for Law School Computing sponsored by CALI at the University of Colorado Law School, Boulder CO. BLS Library Director Victoria Szymczak and three of the BLS reference librarians, together with three of the IT professional staff, were in attendance at the conference. The sessions were designed to help librarians, IT professionals and law faculty better serve their objective of providing quality legal education using the latest technology tools. For the first time this year, all the sessions are webcast live. With the use of the open source web meeting software Dimdim, each session had a live video feed and chat room.

The conference ran from Thursday, June 18, through Saturday, June 20. The links for all the conference session webcasts are available on the conference program website. Some sessions which may be of particular interest to readers of this blog include:

• Critical Mass is Critical – A View Into the Changing World of Scholarly Communications
• FaceBook/Social Media Best Practices for Law Schools/Students
• Firefox Add-ons for Legal Research
• No Carrot No Stick No Budget No Problem: Tools for the 21st Century Library
• A Holistic Approach to Academic Computing: Librarians and Instructional Technologists Are Better Working Together
• Introducing and Integrating Free Internet Legal Research Into Classroom
• Kindle for Law Schools
• Using LibGuides to build Legal Research Guides
• Building awesome library web apps with open source
• Thinking Outside the (Glass) Box: Digital Displays in Law Libraries

Map of Disputes Between WTO Members

The Library of Congress Law Library has posted on its blog an entry about the World Trade Organization with a hyperlinked map of disputes between its members. The site has hyperlinks that allow users to access the dispute documents filed by the contending parties with the WTO. There are other links that show a chronological listing of dispute cases, another link to tables that show the disputes by country and by subject.

There is an additonal link that shows the adopted panel reports under the General Agreement on Tariffs and Trade (GATT) disputes that pre-date the WTO. The site also links to Stanford University’s GATT Digital Library that gives access to documents and information about GATT from 1947-1994. Particularly useful is the resource page with bibliographies, research guides, and web sites of interest to GATT Digital Library users and researchers.

The graphical feature showing the map of disputes is a useful tool for readers who respond to visual learning. Choosing to see the participation of the United States, for example, in the WTO dispute process shows that it has been a complainant in 73 cases and a respondent in 106 cases.