A letter by Professor Ronald J. Colombo was published in Newsday on February 19, 2009.

Where's the sense of duty?
By Ronald. J. Colombo

Members of Congress have heaped a fair amount of blame and criticism upon corporate America over the past few months, culminating in seven hours of chastisement when the CEOs of America's top banks were called to testify before the House Financial Services Committee ["Execs get an earful," News. Feb. 12]..

The criticism is just, insofar as corporate officers, and corporate directors, owe a fiduciary duty of care to the corporation and its shareholders.

As commonly articulated, this duty obliges officers and directors to discharge their corporate responsibilities with the degree of skill and diligence that a reasonably prudent person would exercise over his or her own personal affairs.

Sadly, it appears as though many corporate officers and directors fell short of this standard.

But Congress' criticism is also most hypocritical. For as Sen. Frank Lautenberg (D-N.J.) frankly admitted, neither he nor any of his colleagues were likely to read the entire version of the $790-billion stimulus bill before voting upon it.

Were Lautenberg and his colleagues corporate directors and officers, shareholders would have a prima facie case against them for breaching their duty of care. Aiding and abetting this breach was a congressional leadership and an administration that demanded a vote on the bill before anyone could fairly review - let alone digest - it.

I had audaciously hoped that our government would have learned a thing or two about the duty of care from last the CEO's lengthy testimony, and from the travails of corporate America over the past year. Sadly, that does not appear to be the case.

Hofstra Law School Professor Grant M. Hayden and Saint Louis University School of Law Professor Matthew T. Bodie have published "Arrow's Theorem and the Exclusive Shareholder Franchise," Vanderbilt Law Review, Vol. 62, No. 4, 2009, Hofstra University Legal Studies Research Paper No. 09-06.

ABSTRACT:
In this paper, we contest one of the main arguments for restricting corporate board voting to shareholders. The doctrine of shareholder primacy sits at the center of American corporate law. And shareholders do, in fact, have primacy of place within the corporation, as they alone generally have the right to elect the firm's directors (other constituents - such as employees, creditors, suppliers, and others affected by corporate decision-making - do not have the right to vote). In justifying the limitation of the franchise to shareholders, scholars have repeatedly turned to social choice theory - specifically, Arrow's theorem - to justify the exclusive shareholder franchise. Citing to the theorem, corporate law commentators have argued that lumping different groups of stakeholders together into the electorate would result in a lack of consensus and, ultimately, the lack of coherence that attends intransitive social choices - perhaps even leading the corporation to self-destruct.

We contend that this argument from Arrow's theorem makes very little sense. First, we argue that commentators have overestimated the concerns raised by the theorem about the aggregation of more diverse preferences. Almost any time that different viewpoints are converted into social choices, disparate preferences must be reconciled. In fact, the only way around this would be to assume that shareholders will never disagree - increasingly a flawed premise. More importantly, the shareholder primacy argument misreads the import of the theorem - namely, that any voting system will fail to achieve perfection and thus we must confront the weaknesses of the particular system at hand. The shareholder franchise, like any other system, may avoid violating one of the conditions of Arrow's theorem only by violating another condition - a tradeoff that has never been explicitly acknowledged or defended. Ultimately, we argue that Arrow's theorem fails to support shareholder primacy or the limitation of corporate voting rights to shareholders.

Professor Mitchell Gans spoke on ethics in tax practice at the New York County Lawyers' Association.

Professor of Law and Associate Dean for Faculty Development Julian Ku was quoted in the following Newsday article.

Experts: Schools have broad rights to search students
By Joie Tyrrell
February 16, 2009

EXCERPT:
Students have a very diminished expectation of privacy when they are in school, and if a security dog detects something suspicious in their backpacks or lockers, they can be searched, legal experts said.

School officials have much broader discretion than police to search students pursuant to their needs to manage the school, said Julian Ku, law professor at Hofstra Law School.

"Ordinarily, you would need probable cause to do this if you were a police officer, but this is not a search for criminal purposes," Ku said. "A policeman would have much stricter rules to comply with."

Distinguished Visiting Professor of Law Scott Horton had an article British Court Reopens U.S. Torture Case as Obama is Lobbied to Change Course published in Harper's Magazine on February 12, 2009.

In two cases in the last year the British Government has represented to courts that continuation of proceedings that included allegations of criminal wrongdoing by British and foreign officials would undermine national security if they were to proceed. In both cases British officials claimed that the foreign government would stop cooperation with counterterrorism efforts if the case were to proceed. And in both cases, as soon as the legal proceedings were terminated, the government immediately proceeded to claim that the suggestion that the foreign government had made a threat of any kind was simply a “misunderstanding.” From the perspective of many observers it was an astonishing example of bait-and-switch involving the national legal system.

Today the High Court in London agreed to reopen the most recent case, involving British Guantánamo detainee Binyam Mohamed, making clear that it was highly dissatisfied with Foreign Secretary David Miliband. Mohamed’s lawyers also issued an appeal directly to President Obama asking him to intervene directly in the case. The Guardian reports:

US defence officials are preventing Barack Obama from seeing evidence that a former British resident held in Guantánamo Bay has been tortured, the prisoner’s lawyer said last night, as campaigners and the Foreign Office prepared for the man’s release in as little as a week. Clive Stafford Smith, the director of the legal charity Reprieve, which represents Ethiopian-born Binyam Mohamed, sent Obama evidence of what he called “truly mediaeval” abuse but substantial parts were blanked out so the president could not read it.

In the letter to the president [PDF] , Stafford Smith urges him to order the disclosure of the evidence. Stafford Smith tells Obama he should be aware of the “bizarre reality” of the situation. “You, as commander in chief, are being denied access to material that would help prove that crimes have been committed by US personnel. This decision is being made by the very people who you command.”

During the transition period, Obama staffers were regularly denied access to information relating to the Bush Administration’s torture programs. Stafford Smith notes that a number of Bush Administration officials involved in administering these programs, although political appointees, subsequently “burrowed” into career positions where they continue to have on-going responsibility and appear to be obstructing disclosure of what has happened. Two leading Congressional Democrats yesterday pointedly criticized the Obama Administration’s conduct with respect to the Binyam Mohamed case. House Human Rights Subcommittee chair Bill Delahunt told The Times (London) that:

There seems to be no valid national security reason that would prevent full disclosure. I know the President has concerns about this kind of affair and expressed a desire to be transparent. I believe he will act in good faith.

On the Senate side, Russ Feingold also took the administration to task over its handling of the Binyam Mohamed matters. Greg Sargent reports:

“I am troubled by reports that the Obama administration has decided to invoke the state secrets privilege in a case brought by five men who claim to have been the victims of extraordinary rendition,” Feingold said in a statement sent to me by his office, in a rare instance of criticism directed at Obama by a Senator in his own party… “I have asked for a classified briefing so that I can understand the reasons for this decision,” Feingold’s statement said.

A group of senior House Democrats led by New Yorker Jerrold Nadler announced that he is reintroducing legislation setting limitations on the Justice Department’s ability to claim national security concerns as a basis for blocking litigation. Under Nadler’s measure, which previously was endorsed by Vice President Joe Biden and earned supporting comments from Obama, but was opposed by the Bush White House, judges would be required to form an independent view as to the bona fides of Justice Department claims of national security, particularly when the claim was interposed to stop a lawsuit. The measure is being backed by the New York City Bar Association and is expected to gain the backing of other bar groups. Nadler took the occasion to attack the Obama Administration’s stance in the Binyam Mohamed case:

The administration’s decision this week to adopt its predecessor’s argument that the state secret privilege requires the outright dismissal of a case challenging rendition to torture was a step in the wrong direction and a reminder that legislation is required to ensure meaningful review of the state secret privilege.