Dodd-Frank, the Senate, and the Executive Order – Part I

Early last Friday morning, using an unusual legislative procedure, the Senate voted to repeal a law that was part of Dodd-Frank. Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Act directed the Securities and Exchange Commission to issue rules requiring public companies (issuers) to include in their annual reports information regarding payments by that issuer to a foreign government, or the federal government, for the purpose of the commercial development of oil, natural gas, or minerals. This provision was only tangentially related to the heart of Dodd-Frank reforms. The purpose of this Dodd-Frank provision was to increase transparency, prevent corruption, and allow governments, across the globe, to be held publically accountable. In August, 2012 the SEC, as required, adopted Rule 13q-1, which immediately ran into hurdles.

In October 2012, a number of industry groups, including the American Petroleum Institute, filed suit against the SEC and a district court vacated Rule 13q-1, in part, finding that the exemptions provided by the Rule were arbitrary and capricious. This was not the end of the story. In 2014, Oxfam, along with others, filed suit to compel the Commission to promulgate a new final Rule as required by Dodd-Frank.  A revised 13q-1 went into effect on September 26, 2016 but public companies had until September 20, 2018 to comply.

Thus, the Senate’s action in repealing this provision of Dodd-Frank did not disrupt the mass of regulations that go to the most important parts of Dodd-Frank such as the safety and soundness of banks, new consumer protection laws, and derivative clearing. Unsurprisingly, this seems like the Republican majority flexing its muscles – the lion roaring. It hardly comes as a surprise that the Republican leadership does not like much of Dodd-Frank.

Just hours after the Senate’s action, the President issued an Executive Order setting forth the “Core Principles” for regulating the financial system of the United States. On its face, there does not appear to be a significant departure from previous Republican administrations that view regulation as inefficient and an encumbrance to economic growth and U.S. competitiveness. Yet the Core Principles also reconfirm that future federal bailouts of banks, will not occur due to the problem of “moral hazard.” This, of course, was one of the very purposes of Dodd Frank.  In addition, the principles seem to subscribe to the importance of disclosure to prevent information asymmetries which is in fact a long standing fundamental concept in U.S securities law.

This executive order, however, combined with the January 30th Executive Order intended to reduce regulation, and the federal hiring freeze order, should give us significant cause for concern. My guess is that much of the Volker Rule will not go into effect. Moreover, there is real likelihood that the SEC and CFTC will once again become anemic through lack of funding. Issues of funding are much less dramatic than pre-dawn legislative sessions and flashy executive orders but starving regulators is effective. All we have to do is remember the Madoff scandal.

I fear that we will once again enter the cycle of deregulation-crisis-re-regulation. This, of course, is exactly what led us into the Financial Crisis of 2008.

Religious Discrimination and Jewish Immigrants -Post 1

Religious Discrimination and Jewish Refugees

Writing as a legal historian, I would like to say that President Trump’s Executive Order of January 27th regarding immigration and refugees was entirely unprecedented but it was not. What I can say is that looking back at immigration laws and policies, like those in the Executive Order, we can see how they were entirely misguided and driven by racist stereotypes.  I briefly want to point to two such events involving Jewish refugees and immigrants.

In 1892 poor Eastern European Jewish refugees attempting to enter the United States spent months in U.S. quarantine under the mistaken belief that they were carriers of typhoid and later cholera. Such hysteria was driven by the wide-spread stereotype that such Jews were dirty, dangerous, and that they polluted the Christian body of the nation. Protecting the nation’s security was thus mapped on to the Jewish body. At the time, no one brought a habeas petition on behalf of those detained. Rather Jewish charities and others cooperated with officials hoping that the ban would soon be lifted.

Almost fifty years later, European Jews attempting to escape Nazi Germany and occupied countries once again found United States doors closed to them. Despite the extraordinary efforts of a variety of volunteer organizations, as well as the continual private pleas of Eleanor Roosevelt, the U.S. State Department simply refused to grant visas and at times revoked refugee visas already issued to Jews essentially signing a death warrant. President Roosevelt refused to intervene with the State Department considering the plight of European Jews not America’s problem. As historians have demonstrated, the State Department at such time was rife with anti-Semitism, often seeing Jews as communist agitators and Soviet sympathizes who would not uphold American values.

In the same way that the State Department so easily denied visas to those seeking to escape Hitler’s Europe, The Executive Order carelessly, dangerously, and unnecessarily  upended people’s lives. Even if the court’s eventually find parts of the order unconstitutional or a violation of statutory law, it still cuts by more than one half the number of refugees who will be admitted into the United States. Who does such a mean policy possibly benefit?

I am thrilled at the outrage of ordinary people, lawyers, and elected officials regarding the Executive Order.  For those interested in a plethora of open sources material on Immigration and U.S. Policy see http://editions.lib.umn.edu/immigrationsyllabus/

 

 

 

Ten Reasons Why Political Protests Work: A Legal Historian’s View

  1. Second Thoughts: Protests make elected officials hesitate before taking unpopular action. Sustained protests are wearing on elected officials. Think of the Vietnam War protests and the effect that they had on Lyndon B. Johnson.
  2. Visibility: Protests make opposition visible and provides the optics of opposition that the media can broadcast. Think of the images of the Civil Rights Movement and most recently the Women’s March. There is truth to the chant that the whole world is watching.
  3. Supporting Elected Officials. Protests give elected officials who support the protester’s goals ammunition and the ability to sustain opposition — they need to know that their base is behind them
  4. Camaraderie. The gathering of people who have at least one common goal makes a single individual feel part of a group – they are not alone but part of many who feel the same way. Protesting transforms the individual.
  5. Social Movement. From protest a social movement will emerge. At protests people learn from each other and create webs of knowledge about ideas, events, and actions. We learn to act as a coalition.
  6. Safety. If protestors are targeted for their political views, there is safety in numbers—they can’t go after all of us.
  7. Practice. Exercising one’s First Amendment Rights is frightening and takes courage and practice—We need to learn how to use our bodies and voices to stand up for our beliefs.
  8. Protests are Patriotic. There is a long history of protests against the state from the Boston Tea Party to the Civil Rights Movement – it is part of our heritage to make government better and more just. As the chant says, “This is what Democracy looks like.”
  9. Exercising Morality. Protests are a way of visibly saying “not in my name.”
  10. Legal and Social Change. Protest and legal change can go hand in hand. Protests spur lawyers to file legal suits and legal suits can further energize protests.

The Pain of Living in a Post-Feminist World

A number of women students just alerted me to Deborah Copaken Kogan’s “My So-called Post-Feminist Life” which recently appeared in the Nation. (http://www.thenation.com/article/173743/my-so-called-post-feminist-life-arts-and-letters). Kogan reveals decades of subtle and not so subtle sex discrimination, leaving her feeling misunderstood, alienated, and questioning her career as a writer. Although in different form, I too feel similarly discouraged. I was too young to have firsthand experience of the women’s liberation movement but I naively believed that feminists of the 1960 and 1970s had broken through so many barriers to equality, that my own career would be smooth sailing. Yet from the time that I entered law school, I have continually confronted sexism and I quickly learned that I was better off keeping as silent as my conscious would allow. Women have a hall pass to the corridors of male power which can be revoked easily should one actually identify, name, and voice their own discrimination. In this post-feminist world to be a feminist is to be labeled angry, humorless, weak, too sensitive, passé, irrelevant, overall a pain. “This was all taken care of decades ago, stop whining, get with the program.”

We are supposed to imagine that structural and institution sexism and racism are relics of the past, a long ago problem that has since been solved. Remnants of discrimination are understood be isolated and personal problems – a mere failure of communication or civility. In our current world, the personal is decidedly not political. If we look around and see few women colleagues well what does that matter? They had their chance. It is just another indication of women’s personal choice not to join or to stay. Such women have chosen to leave the party early. Yet few see that such decisions often mask exhaustion, frustration, and alienation. Were we ever really invited to the party in the first place? Hillary Clinton did it, why can’t you?

Mentoring and The Sounds of Silence

For at least a decade, women’s bar associations, universities, and other institutions have been producing reports trying to explain and rectify the lack of women and minorities in top positions such as partners in law firms or full professors in universities (especially within the sciences, technology, and engineering). Although the actual number of women and minorities within law firms and university faculties is improving only at a snail’s pace, there is consensus regarding how such institutions can attract and retain women and minorities. At least one component of all of these reports is an emphasis on the importance of having a mentor. Yet virtually none of these reports discuss in any detail what it means to be a good mentor or how one becomes a good mentor. In its most dilute form, mentoring means an occasional lunch outside of the office and dozens of internet articles on mentoring are at best trite.

I now find myself a mentor of both students and junior faculty and I am often at a loss in how to be a good mentor. In my twenty-three year career that has spanned being in a private law firm, in-house, and then the university, no one has ever spoken to me about what mentoring means. In those cases where I feel most competent as a mentor my relationships have grown organically over time. I silently and slowly become a mentor. Even more surprising to me is that some of my strongest mentoring relationships are with male students despite the fact that my scholarship focuses on women and gender and many students know me from presentations that I give about women in law school.

There has long been a sense that women are not as good as male mentors yet there is no evidence for this, nor do I even have a way to compare myself to others — men or women. This opinion regarding women mentors is of course a vast over generalization but there may be some tidbits of truth in it. Women, including myself, may feel that they do not have the cultural capital, the connections, or the power that more senior men possess. I sometimes worry that I am short changing the students that I mentor.

I have been fortunate to have had wonderful mentors both men and women but the mentoring relationship is not often publicly visible or even discussed. At times, I had no idea whether someone was mentoring me or whether they were simply doing their job and wished that I would leave them alone. At other times, I looked to people that I thought were mentors who instead saw me as a friend or worse yet made the mistake of interpreting my interest as an indication that I desired a romantic relationship. Looking back on my past, I can now see that some of my professors were offering mentorship but I did not recognize it as such. Even today students reach out to me but I do not know whether they are seeking limited advice or a longer-term relationship. Sometimes I think that a student is seeking a mentor but I never hear from that student again. Have they rejected my mentorship? Have I misinterpreted their intentions or have I somehow conveyed that I was uninterested? At other times, I seem to have lost my own mentors and I harbor a perpetual sense that I have fatally disappointed them. Worse of all I do not know how to discuss any of these questions openly.

Finally: Wide Availability of the Morning-After Pill

The article below is from the New York Times.

A federal judge ruled Friday that the government must make the most common morning-after pill available over the counter for all ages, instead of requiring a prescription for girls 16 and younger. In his ruling, he also accused the federal government of “bad faith” in dealing with the requests to make the pill universally available, and said its actions had been politically motivated.

The decision, on a fraught and politically controversial subject, comes after a decade-long fight over who should have access to the pill and under what circumstances. And it counteracts an unprecedented move by the Obama administration’s Health and Human Services secretary, Kathleen Sebelius, who in 2011 overruled a recommendation by the Food and Drug Administration to make the pill available for all ages without a prescription.

In a decision in a lawsuit filed by advocates, the judge, Edward R. Korman of Federal District Court, ruled that the government’s refusal to lift restrictions on access to the pill was “arbitrary, capricious, and unreasonable.”

Judge Korman ordered the F.D.A. to lift any age and sale restrictions on the pill, Plan B One-Step, and its generic versions, within 30 days.

“More than 12 years have passed since the citizen petition was filed and 8 years since this lawsuit commenced,” the judge wrote. “The F.D.A. has engaged in intolerable delays in processing the petition. Indeed, it could accurately be described as an administrative agency filibuster.”

He added, “The plaintiffs should not be forced to endure, nor should the agency’s misconduct be rewarded by, an exercise that permits the F.D.A. to engage in further delay and obstruction.”

The F.D.A. and the Department of Health and Human Services declined to comment on the ruling or the judge’s harsh criticisms on Friday morning or to indicate whether the government would file an appeal, saying the decision, which was issued in the Eastern District of New York, was being reviewed. The Justice Department would only say it was reviewing the opinion.

Scientists, including those at the F.D.A., have been recommending unrestricted access for years, as have major medical groups, including the American Medical Association, the American Congress of Obstetricians and Gynecologists and the American Academy of Pediatrics. They contend that the restrictions effectively keep many adolescents and younger teenagers from being able to use a safe drug in a timely way to prevent pregnancy, which carries greater safety risks than the morning-after pill.

In 2011, the F.D.A. commissioner, Dr. Margaret A. Hamburg, issued a statement saying that after rigorous study, it was safe to sell Plan B One-Step over the counter for all ages. But she was overruled by Ms. Sebelius, the Health and Human Services secretary, the first time such a public countermanding had ever occurred.

In her decision, Ms. Sebelius said that Plan B’s manufacturer had failed to study whether the drug was safe for girls as young as 11, about 10 percent of whom are physically able to bear children. But her decision was widely interpreted in a political context because emergency contraception has become an issue in the abortion debate and because allowing freer access to adolescents would prompt critics to accuse the Obama administration of supporting sexual activity for girls of that age. At the time, President Obama supported Ms. Sebelius’s decision, saying, “I will say this, as the father of two daughters: I think it is important for us to make sure that we apply some common sense to various rules when it comes to over-the-counter medicine.”

He added: “And as I understand it, the reason Kathleen made this decision was she could not be confident that a 10-year-old or an 11-year-old going into a drugstore should be able — alongside bubble gum or batteries — be able to buy a medication that potentially, if not used properly, could end up having an adverse effect. And I think most parents would probably feel the same way.”

Plan B was approved in 1999 as a prescription-only product, and in 2001, the Center for Reproductive Rights filed a citizens petition for it to be made available over the counter or without a prescription. Scientists, including an expert advisory panel to the F.D.A., gave early support to that request. But top F.D.A. officials rejected the application because, some said later, they worried they would be fired if they approved it.

After years of F.D.A. delay on a promise to reconsider the morning-after pill decision, and as the lawsuit by advocates wound its way through the courts, the Bush administration in 2006 allowed over-the-counter sales to women 18 and older but required a prescription for those 17 and younger. Then in 2009, Judge Korman issued a ruling in the court case directing that the pill be made available over the counter for those 17 and older. In his 2009 ruling, the judge said the government’s actions on the pill had been driven by politics and not science.

In his ruling on Friday, Judge Korman also raised the issue of politics, saying that Ms. Sebelius’s decision was “politically motivated, scientifically unjustified, and contrary to agency precedent.”

What Would You Do With A 22% Raise?

(A great post from the Womens Bar Association of Illinois)

EQUAL PAY DAY

APRIL 9, 2013

Wear red to support the cause

April 9, 2013 is Equal Pay Day. This date represents how far into the year 2013 women must work in order to earn as much compensation as their male counterparts did in the year 2012.

It has been 50 years since President John F. Kennedy signed the Equal Pay Act into law in 1963. The Equal Pay Act outlawed wage discrimination between men and women in the same establishment for a job requiring substantially equal skill, effort and responsibility under the same working conditions. Despite this legislation, a significant wage disparity still exists in all occupations. The most recent statistics from 2011 illustrate that women earn approximately 77% of their male colleagues’ salaries. This wage gap increases for minority women, with African American women earning approximately 69.5% less, and Latino women earning approximately 60.2% less. Despite significant progress in narrowing this wage gap after the Equal Pay Act was enacted, it has remained essentially stagnant at 77% since 2004. Some economists have concluded that if this wage gap between men and women were eliminated, the poverty rates would be cut in half.

In order to further the progress of the Equal Pay Act, additional legislation is being introduced at the federal level.

Paycheck Fairness Act

· Reintroduced in January 2013 by Senator Barbara Mikulski of Maryland and Representative Rosa DeLauro of Connecticut

· Requires business owners to justify wage discrimination based upon something other than sex

· Prevents retaliation against workers who inquire about wages and disclose their own wages

· Provides for compensatory and punitive damages, back pay and authorizes class action equal pay suits

Fair Pay Act

· Sponsored by Senator Tom Harkin of Iowa and Representative Eleanor Holmes Norton of the District of Columbia

· Expands the Equal Pay Act to prohibit wage discrimination based upon sex, race and national origin

· Requires employers to provide equal pay for work of equal value whether or not the jobs are the same

· Bans retaliation and requires employers to file wage information annually to the EEOC

We invite you to wear red on April 9, 2013 as a reminder of the women and families forced to live in “the red” due to unequal pay. You can also take action by notifying your senator and representative of your support of equal pay for all genders and races.