Although the use of coal will become more expensive as climate warming emissions are regulated, it won’t all be downside for West Virginia business. That’s the message Michael Gerrard was to deliver Sept. 3 at the West Virginia Business Summit at The Greenbrier. A Charleston native, Gerrard practiced environmental law from 1979 through 2008, becoming managing partner of the New York office of Arnold & Porter LLP before joining the faculty at the Columbia University Law School.
The Securities and Exchange Commission seems determined to inject a little democracy into board elections, but corporate America doesn't like the idea much. John Coffee expects some of the SEC’s proposals at reform will pass.
John Coffee said that the CFTC needs more of the powers the SEC has to act on cases of insider trading and market manipulation. The CFTC “needs legislation prohibiting insider trading on commodities and transactions within its jurisdiction” and should be able to impose financial penalties in cases of violations. The SEC “is armed with a greater enforcement club” and can impose penalties without going to court, Coffee said.
The SEC may create a “fraud college” along the lines of one suggested by John Coffee to train staff in detecting market abuses after the agency failed to stop Bernie Madoff’s $65 billion Ponzi scheme, Chairman Mary Schapiro said.
Michael B. Gerrard warned West Virginia business leaders that if Congress fails to pass cap-and-trade legislation, the Environmental Protection Agency will surely implement regulations that could prove to be even more onerous to the coal industry.
Eben Moglen, chairman of the Software Freedom Law Center, said he believed the European Commission is concerned that Oracle will prevent developers from adding features to make MySQL more powerful, which would make it more competitive with Oracle's database.
Lawyers say the Securities and Exchange Commission should overhaul management and take advantage of the hungry, experienced lawyers it employs, so that when the next Bernard Madoff is staring in its face, it will catch him. "The key is, are they properly trained to find the bigger things?" said former SEC Commissioner Harvey Goldschmid, now a professor at Columbia Law School.
THE ECONOMIST Tech.view: The internet at forty Sept. 4 Proponents of “net neutrality” argue that … telephone and cable monopolies want to act as gatekeepers to the internet, deciding which websites load quickly and which won’t load at all. In other words, they want to tax content providers to guarantee speedy delivery of their data, while discriminating in favour of their own search engines, internet phone services and streaming video. Tim Wu of Columbia Law School calls it the “Tony Soprano business model”.
Many of the panelists at the recent two-day SEC-CFTC meeting were either invested in those turf wars, or they were in the industries regulated by the agencies. But some of the most interesting testimony came from Columbia University Law School Professor John C. Coffee Jr., who is in neither camp. Even if you watched or attended the hearing, we’d recommend reading the full text of Prof. Coffee’s prepared remarks, which he summarized, but didn’t read verbatim during his testimony.
Richard Briffault, a Columbia Law School professor who was a consultant to the 1989 Charter Revision Commission that created the Conflicts of Interest Review Board, said, “Somebody who’s on the board shouldn’t be a lobbyist, and somebody who’s on the board shouldn’t be someone for whom the success of their job depends on working closely with city government.
"Anyone who cares about the messages they hear in an election and the power of the speakers of those messages ought to care about the results in this case," said Nathaniel Persily, a law professor at Columbia University.
"We're getting from the SEC a bureaucratic stonewall, and from the bank an opaque silence about what went on," said John Coffee, a Columbia University law professor who reviewed the briefs. "The SEC hopes the court will rubber-stamp the settlement, but it has to face that all events are tipping in the direction that no one other the SEC and the bank want this settlement to go forward.”
Ronald Mann: “I believe that automatic notification when an account is overdrawn at the point-of-sale would be far more effective than the paperwork-related reforms currently on the table. Simply putting disclosures on a form — even if the information is detailed about risks and fees — is just too remote from the actual transactions that could result in high fees.”
“I doubt the judge is going to just say, ‘I disapprove it,’” said June Besek, executive director of the Kernochan Center for Law, Media and the Arts at Columbia Law School, part of Columbia University in New York. “There is enough good in it, he might indicate what changes are needed and how it could be done.”
What if Lehman had been saved? Wouldn't we all be better off—and a little less stress-worn—than we are today? "You would have still had a crisis when AIG was bailed out," says John Coffee, a Columbia University law professor specializing in the financial markets.
“It’s a strong, blistering decision,” said John C. Coffee, a Columbia Law School professor who has taught a course along with Judge Rakoff for 21 years. “It is really a critique, not just of this case, but of a long-standing practice at the S.E.C., which effectively allowed corporate managers to buy immunity with their shareholders’ money.” (Professor Coffee also interviewed for this story by Business Week, the Los Angeles Times, MSNBC, and the Charlotte Observer).
Seven former and current NFL players are among the 3,000 investors who were allegedly duped into investing roughly $100-million in an Alberta-based Ponzi-type scheme. "Canadian sentencing is not quite as harsh as U. S. sentencing," said John Coffee, the Adolf A. Berle professor at Columbia Law School.
In her maiden Supreme Court appearance last week, Justice Sonia Sotomayor made a provocative comment that probed the foundations of corporate law. Today it’s “just complete confusion over which rights corporations can claim, says Prof. William Simon of Columbia Law School.
The Senate on Thursday confirmed Gerard Lynch for the 2nd U.S. Circuit Court of Appeals, giving overwhelming approval to the New York judge who presided over cases involving former basketball coach Isaiah Thomas and recording artist Lil' Kim.
Jeffrey Gordon: Despite last year’s near-miss of a Money Market Fund catastrophe, the SEC’s current Money Market Reform proposal asks for only modest reforms that fail to address the key issues of this $3.8 trillion financial intermediary; indeed, that may well aggravate systemic risk.
Column by John Coffee: The SEC's inspector general should follow up on Judge Rakoff's opinion and investigate the questions that neither side would clarify for the court: How did the SEC make the litigation decisions that it did? Who was responsible for the inadequate investigative record? Who approved this de facto sale of indulgences without any responsible individual defendant being identified?
John Coffee, a Columbia University law professor, said the SEC lacks the resources to handle large class actions. And, Coffee said, private lawyers are unlikely to bring frivolous cases because the pleading rules require that they show a “strong inference of fraud” prior to discovery.
The SEC could instead try to strike a new settlement that satisfies the judge, but based on Rakoff's ruling, law professor John Coffee, who teaches a class with Rakoff at Columbia, says it is unlikely the judge would accept a substitute settlement that doesn't name any individual executives. Lewis, as the chief executive of the bank, is an obvious target.
One year ago, the Reserve Primary Fund broke the buck. In an attempt to address such problems, the SEC published this June a Proposed Rule offering "Money Market Fund Reform." A particularly trenchant and scholarly analysis of the proposal comes from Professor Jeff Gordon of Columbia Law School, who "proposes a different direction to reform, one that begins with the division between retail and institutional money market funds and that takes account of the different motives and need of the investors in each."
"Climate change and renewable energy developments are the next big thing in environmental and energy law," said Michael Gerrard, director of Columbia Law School's new Center for Climate Change Law and senior counsel to Arnold & Porter.
Columbia law professor and internet privacy expert Eben Moglen explained that Kim knew his victims better than they knew themselves. “He knew you were going to give him your password,” Moglen said. “But you didn’t know you were going to give it to him.” How did Kim know? “Because you already gave your e-mail password to Google.” For Moglen, web culture is creating an “architecture of non-privacy” in which we think nothing of donating our most intimate information to faceless, corporate third parties.
Two years ago, a debate over wireless net neutrality sparked up when Tim Wu, a Columbia University law professor, made an argument for open wireless networks. Though the wireless industry has exploded since then, it's not hard to look at Wu's recommendations to see what government regulators might be considering.
Columbia Law School Professor Richard Briffault, an expert on state government and election law, said the high court got it right. “If you just look at the laws on the books, there is this vacancy-filling provision,” he said, referring to a section of the Public Officers Law. “The real battle was whether the lieutenant governor's office was vacant, because the Constitution provides that the temporary president of the senate can perform some of the functions of the lieutenant governor while there's a vacancy.”
"There's ongoing discomfort with judicial elections, so there's a desire to make them better elections, less tainted by self-interest," said Richard Briffault of Columbia Law School. "But there's another view that, if you're going to have a judicial election, it should be run like any election -- open, freewheeling. Courts are trying to work out this tension."
The later decisions [settling suits between brand-name drug manufacturers and makers of generic drugs] have come under heavy fire from academia. "There has been a steady drumbeat of criticism by antitrust scholars who argue that when you pay off a rival, you’re doing something that clearly violates antitrust law," says C. Scott Hemphill, who teaches intellectual property and antitrust law at Columbia Law School.
On some issues, the administration's hands are tied altogether. John Coffee heads Columbia University's Center for Corporate Governance. He says only Congress can crack down on the complicated "derivative" investments widely blamed for triggering the financial meltdown.
The British system is also more shareholder-friendly than is the U.S. system, analysts say. "Shareholders [of a target company] are definitely better off in the United Kingdom," said John Coffee, a law professor and corporate governance expert at Columbia University. And the same could be said for would-be acquirers such as Kraft.
Regardless of what happens between Wednesday and the start of the next session, Texas lawmakers will have a hot potato on their hands, predicted Nathaniel Persily, a redistricting expert at Columbia Law School in New York. "Redistricting is a political blood sport and what happened in Texas last time was one of the bloodiest fights we've ever seen," Persily said.
William Simon (co-author): In recent years, states and litigants have moved toward a new model to resolve disputes over system compliance with federal law. The new approach gives states far greater flexibility, permits states to exit decrees short of full technical compliance and, in general, tends to downplay judicial intervention in the workings of state and local bureaucracies.
Carriers are, in the terminology of Internet researcher Tim Wu, "deregulationists". As such, they tend to believe that the networks belong to them and that they should be able to do what they want with them, including blocking the next Google unless the carrier is paid an extra fee to make sure the data is properly delivered.
Requiring carriers to open networks to all devices, for example, may bar exclusive pairings between phones and networks, such as the deal that makes AT&T the sole U.S. carrier of Apple's iPhone. The FCC has "the willpower to break this market open," says Tim Wu, a professor who specializes in technology at Columbia Law School.
Tim Wu: The critics' premise is that the monopoly that the settlement creates is invaluable—and that without the settlement, we can create a competitive market for putting out-of-print books online. But I fear that's a fantasy that misrepresents the options.
Securities experts panned the idea of mutual liability, which they said would only raise barriers for new rating agencies and would unfairly expose NRSROs to financial harm if a deficient competitor led a so-called "race to the bottom" in standards that others resisted. John Coffee, a professor at Columbia University Law School, said the provision is "a mistake" that would effectively make NRSROs joint insurers of each other.
[Rep. Paul] Kanjorski said that this kind of joint liability [making all liable for the failure of one] would create incentives for raters to produce high-quality ratings. However, Columbia Law School Professor John Coffee argued that exactly the opposite would be true. He contends that the liability provision would drive rating agencies to lower their standards and produce poorly thought-out ratings.
Katharina Pistor: The best way to protect cross-border banking and financial integration in Europe would be to establish an effective EU-wide regulator and supervisor, or, even better, a global institution that could monitor the home country-host country relationship. Without sufficient progress in that direction, however, host countries must be provided greater protection.
Former SEC Commissioner Harvey Goldschmid said there’s a benefit in the agency waiting for Congress to act because it’s likely to be sued. “I believe the commission has the power to put proxy access into effect now, but legislation would avoid a lot of wheel-spinning litigation over a period of years,” said Goldschmid, a professor at Columbia Law School in New York.