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Fall 1999

Fall 1999

(October 1999 - December 1999)

Prof. John Coffee appeared on the CNN shows "Street Sweep," "Moneyline News Hour," and "Business Unusual" to discuss some of the great financial scandals of the last decade.  Referring to Nick Leeson, an options trader who brought down Britain's oldest bank, Barings, by racking up
$1 billion in losses, Prof. Coffee said, "This is the problem with the rogue trader in a highly volatile industry, where just a few weeks of inadequate controls can allow someone to bet the firm's entire future.  And that's what Mr. Leeson did.  And then once he began to lose, there's the inevitable pressure to try to cover your losses by doubling your bets.  It happens at racetracks, and it happened at Barings, and it killed Barings." CNN Transcripts, December 30, 1999

Prof. John Coffee was quoted in several articles about SEC Enforcement Director Richard Walker's efforts to police Internet trading and fraud.   "There's a lot of stock hyping going on," said Prof. Coffee, "and I can't believe the SEC is catching most of the fraud."  The Dallas Morning News, St. Louis Post-Dispatch, and National Post, December 29, 1999

Prof. Vivian Berger was quoted in an article titled, "Call for New Sex-Abuse Trial Is Said to Harm Rape Shield Law."  A court ruling last week ordered a new trial for Oliver Jovanovic, a former Columbia University graduate student who was convicted of tying up and torturing a 20-year-old Barnard student in his apartment for 20 hours.  The two had met over the Internet.  Women's rights groups contend that the ruling could erode protections for rape victims and discourage sex crime victims from reporting attacks.  The debate centers on four email messages sent to Mr. Jovanovic by the victim in which she expressed an interest in sadomasochism.  The emails were barred from the proceedings, a step that women's rights groups applauded because it upheld the rape shield law of 1975, which prevents aspects of a victim's sex life from being brought up at trial, and reinforced the importance of consent to a specific sexual circumstance.  Attorneys for the defendant argue that the emails undermine the victim's story.  Discussing the order for a new trial, Prof. Berger said the decision was legally sound, but that trial judges should not apply the ruling broadly to all rape cases.  She said the case was unusual because the encounter was sadomasochistic.  Mr. Jovanovic, for example, might have been able to argue that he thought his accuser wanted him to continue when she asked him to stop.  The jury might not have believed him, but Mr. Jovanovic should have been able to use the barred email messages as part of his defense, she continued.  "I think the jury should have heard them and been allowed to sort them out themselves."  The New York Times, December 23, 1999

Prof. Gerard Lynch was quoted in an article titled, "In Diallo Trial, Best Option Is Albany."  Discussing angry reactions to the decision to move the Diallo trial from the Bronx to Albany, the article stated that the move offends Bronx residents not only because they fear an overwhelmingly white jury in Albany, but because they are concerned that their community's resentment of police brutality will go unregistered.  "It's not just defendants but the community that has rights today," said Prof. Lynch.  With the growth of the victims' rights movement, he continued, families and communities of victims play a role in trials.  The New York Times, December 23, 1999

Prof. Patricia Williams was mentioned in an article about the upcoming Martin Luther King, Jr. Day event at the Brooklyn Academy of Music, sponsored by Brooklyn Borough President Howard Golden.  Prof. Williams will be the  keynote speaker at the January 17 event.  The New York Post, December 21, 1999

Prof. Williams was also quoted in an article about the children's book, "Racism Explained to My Daughter," by Tahar Ben Jelloun.  In a quote taken from a review of the book she wrote earlier this year, the article said that the book addresses what Prof. Williams called "the irrationalities of being marked and mocked."  The Dallas Morning News, December 26, 1999

Prof. Gerard Lynch was quoted in an article titled, "Letters Swamp Judge in Volpe Sentencing."  Judge Eugene Nickerson of Brooklyn Federal Court received more than 600 letters from people both begging for leniency and demanding a life sentence for former NYPD officer Justin Volpe, who confessed to the 1997 attack on Abner Louima.  Prof. Lynch said the letters would give Judge Nickerson some idea of the impact the crime has had on the community.  "At some level the judge is consulting his or her understanding of what this crime means to the community, or what this person means to the community, so it cannot just be dismissed out of hand," he continued.   Daily News, December 12, 1999

Prof. Philip Genty appeared on ABC's "World News This Morning" to discuss the case of Precious Bedell, a woman recently released from prison after serving almost 20 years for killing her young daughter.  Ms. Bedell spent many of her years in prison teaching fellow inmates about parenting, family law, and foster care issues.  For the past four years, Prof. Genty has worked with Ms. Bedell and brought his law classes to prison to watch her teach.  "After the class, they talk to Precious about--about the--the choices she's made, the teaching technique she's used, all on the way to--for them to learn how to teach their own workshops to--to another group of incarcerated women.  The students are simply blown away by--by Precious," said Prof. Genty.  ABC Transcripts, December 3, 1999

Prof. John Coffee was quoted in an article about the practice of selective disclosure--when companies give critical information to some investors and not to others.  Prof. Coffee said that the law is far from clear on the issue.   While SEC rules prohibit selective disclosure, the agency has never specified what it is.  "The SEC hasn't tried to push on selective disclosure," Prof. Coffee said, "in part because it hasn't spelled out what it is but also because it's hard to prove."  The SEC would be able to prosecute selective disclosure, he adds, only when it's clearly insider trading.  The Houston Chronicle, December 7, 1999

Prof. John Coffee was quoted in an article about the $2.8 billion settlement this week in the securities class-action suit against Cendant, the franchiser that operates Ramada Inn and Avis car rental agencies.  Shareholders, led by the pension funds of New York State, NY City, and California, charged that CUC International, one of two companies that combined to form Cendant, had greatly inflated earnings and profits and that executives no longer with the company sold shares before the irregularities were disclosed.  In addition to the $2.8 billion to be paid to its stockholders, Cendant also agreed to several changes in its corporate structure. "This was a unique class action waged by large plaintiffs and not your typical class action by owners of 100 shares or so," said Prof. Coffee.  "These large pension funds were properly trying in this action to not only recover financial losses but to realize their priorities in corporate governance."  The New York Times, December 8, 1999

Prof. Richard Gardner was quoted in an article titled, "If Only the WTO Could See Clearly Through Its Veil."  Discussing the current debate over the WTO's closed-door policies and the public outcry for open meetings and an open legal process, Prof. Gardner said that too much transparency could cause WTO chaos.   "You can't have a system under which every one of 6 billion people on the planet can come to the WTO and talk," he said.  Prof. Gardner, who is part of the American delegation to the WTO, argued that governments ultimately must answer to their citizens for the WTO deals they strike.  Chicago Tribune, December 3, 1999

Prof. Michael Dorf was quoted in an article titled, "Law Schools Use Giuliani to Teach First Amendment."  Discussing the use of many of the two dozen First Amendment lawsuits against Giuliani as classroom material, Prof. Dorf said,
"It's important in any area of the law to try to show students that what they're learning is relevant.  It's especially relevant in constitutional law because the backdrop is what is the proper role of the court with respect to questions that have an importantly political dimension?  The beauty of living in New York is that the mayor is constantly generating classroom hypotheticals."  The Record (Bergen County, NJ), November 28, 1999

Prof. Vivian Berger authored an article in The National Law Journal titled, "Quit Drugging Prisoners."  The piece discussed the case of Russell Eugene Weston, Jr., the severely disturbed man who killed two Capitol police officers in 1998.  Though Mr. Weston has not yet been arraigned, a federal judge has ordered his involuntary treatment with anti-psychotic medication.   Prof. Berger writes that this treatment, "may have already greased the skids toward his potential execution."  The National Law Journal, November 22, 1999

Prof. John Coffee appeared on CNN's show "Business Center" to discuss the ongoing legal battles between Warner-Lambert, Pfizer, and American Home Products.  Last week, Pfizer accused Warner-Lambert of violating a so-called
standstill agreement in the ongoing debate over the merger of Warner-Lambert with American Home Products.  Professor Coffee said, "The standstill agreement is enforceable.  It doesn't mean, however, that the management of Warner-Lambert has to keep Pfizer apprised at all moments of just what negotiations it's conducting with third parties."  CNN Transcripts, November 23, 1999

Prof. John Coffee was quoted in an article about the class-action lawsuits recently filed against five health maintenance organizations.  The suits
accuse the companies of violating their responsibilities to their members based on violation of federal laws governing health plans and of the Racketeer Influenced and Corrupt Organizations Act.  Professor Coffee said, "The critical question here is whether there will be a class certification.  It's not the ultimate truth of your facts.  It's whether you can fit into the legal pigeonholes...the standards for class certification have been significantly tightened recently by the Supreme Court."   Los Angeles Times, November 24, 1999

In another article on the same topic, Prof. Coffee noted that at the core of this and other extensive class-action lawsuits is an attempt to influence the financial markets and force a settlement without ever having to wrestle with the complex web of legal issues.  "I'm not sure that you should evaluate this as litigation yet.   I think it is more a matter of stock market persuasion and politics.  If you look at what [the attorney representing the plaintiffs] is doing now, he is elaborately working to get securities analysts convinced that he and his fellows constitute a plausible threat to the industry," Prof. Coffee continued.  Chicago Tribune, November 25, 1999

Dean David Leebron was quoted in Clyde Haberman's Metro Section column in The New York Times.  The article discussed potential lawsuits against The Daily News for a recent mishap (the paper accidentally printed
the wrong winning numbers for its lottery-style Scratch 'N' Match game, causing thousands of people to mistakenly think they had won as much as $100,000), and recent trends in "wacky" lawsuits (such as the hard-of-hearing bank robber who sued the bank he was robbing for exploiting his disability, saying he was arrested because the bank tripped an alarm he couldn't hear).  Mr. Leebron said, "It's kind of the end of fatalism.  It's not just that something happened, but somebody's got to be responsible for it."  The article ended with the warning, "...one more caution: no responsibility is borne here if your clothes were smudged with ink while you read this." The New York Times, November 16, 1999

John Coffee was quoted in an article titled "Vitamin Settlement a Little Unsettled."  The article talked about the recent settlement in the class action suit brought by many food companies against seven of the world's largest drug companies.  The plaintiffs accused the drug companies of a global plot to fix the price of bulk vitamins used in many of the plaintiffs' food products.  Though the defendants agreed to pay $1.17 billion, roughly 100 companies may opt out of the settlement to pursue individual suits for more damages.  The opt-outs have stirred a debate over the "most favored nation" clause, which states that should any of the opt-outs reach a settlement with the defendants for more money within two years, the defendants must make up the difference to the class.  Countering another legal expert's argument that the clause will only tax the opt-outs, and seems designed to benefit the defendants, Mr. Coffee said, "I don't think defendants enter into them simply to chill opt-outs. ...the defendant is exposed to very much increased liability." The Legal Intelligencer, November 15, 1999

Eben Moglen published an Op/Ed piece in The Nation titled "Microsoft's Fatal Error." Discussing the Microsoft antitrust case, Mr. Moglen wrote that "Judge Thomas Penfield Jackson's factual findings in United States v. Microsoft, released November 5, spell the doom of Microsoft as we have known it." The Nation, November 29, 1999

John Coffee appeared on the CNBC show "Business Center" discussing a lawsuit recently filed by DaimlerChrysler. The company is suing a law firm that filed a class-action suit against the automaker. Mr. Coffee said, "There's been a lot of discussion of this but very few corporations have tried it. I think much of corporate America is cheering Chrysler on, but they're also saying, 'You go first.'" CNBC News Transcripts, November 12, 1999

Both Gerard Lynch and James Liebman were quoted in an article titled "Judge Overturns Verdict in 1980 Murder."  The article discussed the case of Carlos Figueroa, who was convicted and has served 19 years in prison for the robbery and killing of a gas station owner in the Bronx in 1980.  A federal judge in Manhattan has ruled that Mr. Figueroa should not have been found guilty and has ordered him released if the state does not retry him or appeal.  The judge, ruling through the unusual step of granting a writ of habeas corpus, decided that there was no physical evidence linking Mr. Figueroa to the robbery or homicide, nor any eyewitness who said he had taken part in it.  The judge stated that because Mr. Figueroa had been convicted solely on the basis of confessions by a co-defendant who did not testify at the trial, his right to confront witnesses against him was violated.  Mr. Lynch said that the number of requests for habeas corpus that are actually granted, particularly in murder cases, is "somewhere near zero."  Mr. Liebman, who co-authored a treatise on habeas corpus that was cited in the judge's opinion, said that there had been "a pretty egregious violation" of Mr. Figueroa's rights by the state court.   "You don't see violations this clear most of the time," Mr. Liebman continued. The New York Times, November 12, 1999

Louis Henkin was mentioned in an article announcing the recipient of the 1999 Robert F. Kennedy Human Rights Award. Mr. Henkin is a member of the RFK Human Rights Award International Advisory Committee, which chose Liberian human rights activist Archbishop Michael Kpakala Francis this year. U.S. Newswire, November 2, 1999

John Coffee appeared on the CNN Moneyline News Hour. Discussing a Florida Supreme Court order that could potentially limit the damages the tobacco industry might have to pay out, Mr. Coffee said, "It indicates that the Florida Supreme Court is taking very seriously the defendants' objections to any attempt to assess punitive damages at this second phase of the trial. And punitive damages is where the bottom line is for the industry, because they could be potentially liable for as much as $300 billion." CNN Moneyline News Hour transcript, November 3, 1999 H. Richard Uviller's comments were stated in an article titled, "For 4th Day, Jury Weighs Insanity in Subway Shoving Case." He said that Mr. Goldstein's case is unusual and might be particularly difficult to decide because a long psychiatric history bolsters the defense's argument of insanity, but Mr. Goldstein carried out a carefully planned and executed attack, which bolsters the prosecution's argument. The New York Times, November 2, 1999

Dean David Leebron's comments regarding liability for failure of electronic trading networks were quoted in the Austin-American Statesman on October 30, 1999.

H. Richard Uviller wrote an Op-Ed piece printed in The New York Times today. Titled, "The Defendant on the Couch," the article discussed the case of Andrew Goldstein, who is pleading not guilty by reason of insanity for pushing Kendra Webdale in front of a subway train, to her death, last year. Mr. Uviller wrote, "Many of those who the psychologists would deem abnormal, or even severely disturbed, still know that pushing someone in front of a train will result in the death or serious injury of a human being, and that hurting or killing a person is very wrong. People like that, no matter how desperately they may require psychiatric therapy, are not excused from criminal responsibility. Sometimes juries do not understand the distinctions and believe that a person in need of therapeutic attention must be acquitted in order to receive it.... So it seems we are trying to adjudicate the wrong question in the wrong forum. The question of culpability is one thing, and appropriate to the criminal trial, but what to do with the psychotic offender is something else.... For those who commit crimes while psychotic but who are nonetheless culpable, neither acquittal nor civil commitment is satisfactory; neither answers the need for penal consequences after a finding of guilt.... The Goldstein trial shows us a familiar but unfortunate picture of jurors asked to think like doctors and doctors testifying about their assessments of guilt. Neither is appropriate." The New York Times, October 27, 1999

Lance Liebman was mentioned in an article titled, "Bar Association Comes Out Against Proposal to Eliminate Remedial Coursework at CUNY Senior Colleges." Mr. Liebman belongs to a special Commission of the Bar of the City of New York, which issued a comprehensive report yesterday recommending against the elimination of remedial coursework at the senior colleges of the CUNY system. The plan to eliminate remediation is currently under consideration by the New York State Board of Regents. PR Newswire, October 26, 1999

Dean David Leebron's comments regarding liability issues when electronic trading networks break down were featured in numerous sources. Questions about such liability came to the fore last week when Charles Schwab Group's online system crashed for almost 2-1/2 hours. "Liability for failure of electronic services is an area of increasing importance as more and more commerce is conducted over the Internet," said Dean Leebron. He and other legal experts also predicted that investors will face difficult challenges trying to prove not only that they lost money as a direct result of a computer crash, but also that their online brokerage firm was somehow negligent. St. Louis Post-Dispatch (October 23, 1999), The Deseret News (Salt Lake City, UT, October 23, 1999), and the Dayton Daily News (October 24, 1999).

Vincent Blasi was quoted in an article titled, "Ashcroft, Gephardt Views on First Amendment Reflect Ambivalence of Nation As a Whole; Their Positions Have Sometimes Fallen Short of What Others Expected." The article states that both Gephardt and Ashcroft have contradictory views on First Amendment questions, depending on the issue at hand. Ashcroft, for example, opposes federal restrictions on campaign finance, but supports restrictions on pornography and flag burning. Mr. Blasi, who, along with Ashcroft, studied under First Amendment Absolutist Harry Kalven at the University of Chicago Law School, wondered how he and Ashcroft could both have studied under Harry Kalven and come away with such different views. "His First Amendment teacher would be spinning in his grave," Mr. Blasi said. "I understand the politics of what he's doing, but it cuts me to the quick that a student of Harry Kalven could ever associate himself with that. If there's a single core principle to freedom of speech in the First Amendment, it's that you can't regulate expressive activity because you disagree with the ideas," Mr. Blasi continued. "If you allow prosecution of people for burning the flag the First Amendment makes no sense." St. Louis Post-Dispatch, October 18, 1999

Michael Dorf was quoted in an article titled, "City Denies KKK Permit," about the city's rejection of the KKK's request for a rally permit in Manhattan. The police department denied the permit under a state loitering law stating that citizens may not be masked or disguised in public except as part of a masquerade party or similar entertainment. The KKK has said that they will challenge the decision on the grounds that its First Amendment rights are being denied. Mr. Dorf said that the city faces tall odds in court, even given the existence of the state's mask prohibition. The problem for the city, he continued, is that the right of free expression seems to include the wearing of masks by demonstrators, assuming that such garb isn't worn to further crime or violence. "In the context of a political rally where there is a significant police presence and other safeguards to ensure public order, the wearing of masks probably would be protected as a matter of free expression," Mr. Dorf said. Newsday, October 15, 1999

H. Richard Uviller was quoted in an article titled, "Marshall board role not unique; Many court picks had activist pasts," about the debate over Margaret H. Marshall's nomination as chief justice of the Supreme Judicial Court of Massachusetts. Some argue that because Justice Marshall served on the board of directors for a home for unwed mothers that performs abortions, she should have recused herself from a 1996 case involving the right to an abortion. Detractors claim that she has gone beyond simply holding personal views and has become an advocate for the cause, thus she would not be impartial on pending state legislation regarding abortion. Mr. Uviller said, "We expect our judges to be good citizens and in some cases that means having taken an active role in society." The article also used Justice Ruth Bader Ginsburg '59 as an example of an activist--in her case, for women's rights--who has become a prominent judge. The Boston Globe, October 12, 1999

John Coffee was quoted in an article titled, "Once again, Big Board is under big pressure," about the NYSE's growing need to keep up with more modern trading systems. The article states that the NYSE's "brand" is a volume of trading so deep that large blocks of stock can be traded quickly without a dramatic impact on prices. With pending structural changes -- including the loosening of Rule 500 (which prevents companies from withdrawing from the exchange without their shareholders' approval) and the potential abolishment of Rule 390 (which requires members of the exchange to trade all Big Board stocks listed before April 1979 on a registered stock exchange) -- comes the possibility of loss of trading volume for the NYSE. Such a loss would not only reduce its revenues, but would also undermine the value of the brand. Mr. Coffee said, "This is a critical issue -- the real dollars-and-cents issue for the Big Board. It's a key part of their franchise, and I cannot see them liberalizing it, especially as they move to become public." The Deseret News (Salt Lake City, UT), October 10, 1999