Category: Corruption

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Goliath aka Google aka No Surprises in Hollywood versus Silicon Valley

This just in: Hollywood hates/fears/plots against Google! The Sony security breach and following leaks have yielded many insights, sort of. If anyone thought Hollywood executives were discrete, that was naive and now debunked. If anyone thought most people knew not to use work email for personal business, that too is shown false. (I am continually amazed at how many law professors have thought it “odd” or “paranoid” that I use different emails for work and non-work communication). And yes, Hollywood aka the copyright industry is quite savvy and plots ways to go after its competitors and/or threats. The revealed emails do show the details of the plans and that there was a code word, Goliath, for Google (which I take as a place holder for Silicon Valley). All of which seems very Dr. Evil. But let’s be clear. Strategies to go after state attorneys general or legislators and to push negative news stories are endemic. They are endemic to Hollywood, telecoms, Silicon Valley, Wall Street, pharmaceuticals, and really any major industry. I am not saying that these practices are great or that policy is well-made from them. But they are real and should be understood. And, for those interested in the open Internet debates there are some other lessons. If you thought SOPA was the end, think again.

Vigilance and support for many companies and groups that support your issue (regardless of what it is) matters. The game is afoot. It will not end. Disclosure moment: Yes, I worked at Google in the policy group, and I have also worked on a political campaign. And one thing that I know from my experience and research (check Jessica Litman’s work on the copyright industry for a great lesson in this industry’s ability to play the game) is that if ideas come from only one entity, they seem weak. For better or worse, trade groups, NGOs, etc. matter. I prefer those that are independent and offer some nuances, but overall the concerted voices of many can be powerful. No matter what issue you wish to see succeed, backing only one entity dilutes the power of the idea or makes it seem like one company or group is crying over its lot in life. Some other post may get into the public choice issues here. But for now, the Sony leaks show that nothing much has changed. “The sun also ariseth, and the sun goeth down, and hasteth to his place where he arose. The wind goeth toward the south, and turneth about unto the north; it whirleth about continually, and the wind returneth again according to his circuits.” Ecclesiastes, 1:5-6.

Hollywood will always lobby for its interests and so will everyone else. “So it goes.”

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UCLA Law Review Vol. 61, Issue 4

Volume 61, Issue 4 (May 2014)
Articles

Expressive Enforcement Avlana Eisenberg 858
Insider Trading as Private Corruption Sung Hui Kim 928
Marriage Equality and Postracialism Russell K. Robinson 1010

 

Comments

Fast and Furious, or Slow and Steady? The Flow of Guns From the United States to Mexico Jessica A. Eby 1082
Parole Denial Habeas Corpus Petitions: Why the California Supreme Court Needs to Provide More Clarity on the Scope of Judicial Review Charlie Sarosy 1134

 

 

 

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Silence and Evil

Some of you may have read the story of the 55 bodies found at a reform school for boys in Florida. Although the national media is finally paying some attention (law professor Tim Wu deserves some credit for this), I cannot help but wonder the reasons that it isn’t considered true headline news. It is hard to identify a clearer example of a recent story exhibiting  such genuine evil and injustice.

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Of Wolfs, Wall Street, Art, and Poser Populists

I was not planning on seeing The Wolf of Wall Street but may have to after reading an op-ed by Christina McDowell, the daughter of Tom Prousalis who was a lawyer in the pump and dump schemes portrayed in the movie. She makes the argument that the film and especially the film makers, Scorsese, DiCaprio, and Winters, have glorified these tactics:

So here’s the deal. You people are dangerous. Your film is a reckless attempt at continuing to pretend that these sorts of schemes are entertaining, even as the country is reeling from yet another round of Wall Street scandals. We want to get lost in what? These phony financiers’ fun sexcapades and coke binges? Come on, we know the truth. This kind of behavior brought America to its knees.

And yet you’re glorifying it — you who call yourselves liberals. You were honored for career excellence and for your cultural influence by the Kennedy Center, Marty. You drive a Honda hybrid, Leo. Did you think about the cultural message you’d be sending when you decided to make this film? You have successfully aligned yourself with an accomplished criminal, a guy who still hasn’t made full restitution to his victims, exacerbating our national obsession with wealth and status and glorifying greed and psychopathic behavior. And don’t even get me started on the incomprehensible way in which your film degrades women, the misogynistic, ass-backwards message you endorse to younger generations of men.

On the one hand, I think McDowell is suggesting that these “liberal” film makers are what I like to call poser populists; lots of lip service to certain ideals but not much beyond that. Maybe that is so. Some artists and writers were horrible in private life but wrote works that capture and celebrate humanity. Do we stop reading them? No. When the opposite is true, however, we may indeed pass up the work. On the other hand, there is the film by itself. Is it that bad?

With McDowell’s critique, I find I may have to see the blasted thing to determine whether it is as lacking substance as it seems. The trailers made the film seem pretty much as McDowell describes. And I happen to find the Scorsese and DiCaprio combo flat film-making. But these images and perspectives of how to conduct one’s life come up in both business associations and professional responsibility. While I believe people should make what they wish for film, T.V., books, etc., if those works become popular, I find I want to know them so I can counter-punch the message or give some context to what students see. Thus I agree with McDowell that creators can exercise judgment in what they make, but once the thing is done, blast it all, I may have to dive in if I want to say “Not for me” and back it up with why.

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The Invention of “Classic” Quid Pro Quo Corruption

Next week in oral argument on McCutcheon v. FEC, you may hear the justices asking counsel to explain why aggregate limits on contributions serves a governmental interest in quid pro quo corruption. Quid pro quo is mentioned 14 times in McCutcheon’s brief, and 5 times in the response.

In Citizens United, Justice Kennedy used the phrase quid pro quo fourteen times. Justice Kennedy believes that the governmental interest in regulating corruption only includes regulating “what we can call the ‘quids’ in the quid pro quo formulation.” The phrase quid pro quo came to serve as a kind of redundant definitional phrase attached to the word, describing what corruption constitutes, or reinforcing that description.

Justice Thomas has scolded others for trying to separate “‘corruption’ from its quid pro quo roots.”

In Wisconsin Right to Life, Chief Justice Roberts’ announced that “the quid-pro-quo corruption interest cannot justify regulating [issue ads].”As  for any other efforts to define it, he writes, with frustration, that “enough is enough.”

Here’s the rub: quid pro quo didn’t become part of definitions of corrupt, corruption, or corruptly until the 1970s, and in many states it is still not part of the definition of any bribery, extortion, or other corruption statute. Just to take one example–I could do this with many states– the first mention of quid quo pro in the New York bribery context was in 1972, and it has been mentioned only a handful of times after that. When the elements of bribery are listed, quid pro quo is not one of them.

So while it is true that Buckley mentions quid pro quo corruption, but in doing so, it wasn’t consolidating and describing an understanding, it was creating one.

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How to Win Friends & Influence People

The ambitious might wonder: what does it take to succeed in China? Finance appears to have an answer:

U.S. authorities have opened an investigation into whether JPMorgan Chase & Co hired the children of powerful Chinese officials to help it win business in China. . . . Investment banks have a long history of employing the children of China’s politically connected. While close ties to top government officials is a boon to any banking franchise across the world, it’s especially beneficial in China, where relationships and personal connections play a critical role in business decisions.

Poor JP Morgan. Just as newspapers offer definitive lists of its legal troubles, another one pops up.

Documentary on Indonesian War Crimes Strikes a Chord

TalkShowThe documentary “The Act of Killing” appears to be an extraordinary commentary on the violent anti-communism of Suharto‘s Indonesia. As Francine Prose notes, “the country’s right-wing leaders recruited gangs of thugs to wipe out suspected Communists with messy, improvisatory, but astonishing efficiency; estimates of the number killed during this period range from 500,000 to a million or more.” As in Vietnam, it appears that extremism in the defense of liberty was no vice.

As gangs become a tool of the prison industry in the US (or vice versa), the following observations from participants in the documentary are a striking commentary on the relativity of law in extreme scenarios:

On screen, one unrepentant murderer mocks the notion of human rights: “The Geneva conventions may be today’s morality,” he says, “but tomorrow we’ll have the Jakarta Conventions and dump the Geneva Conventions. War crimes are defined by the winners. I’m a winner. So I can make my own definition.”

When some of “the most important figures in organized crime are employees of multinational companies, politicians and bureaucrats,” the definition of the “criminal” leaves ordinary rule of law principles behind. The problem affects far more countries than the obvious targets of, say, Indonesia, Italy, and India. The “officialization of the criminal” and “criminalization of the official” may well be one of the darkest trends of our already troubled times.

Image: From The Act of Killing (directed by Joshua Oppenheimer), video still of an Indonesian talk show, where the audience applauded the “homicidal exploits” of a “self-described gangsters who” engaged in “brutal campaigns against Communists, ethnic Chinese and critics of the military government.”

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Faculty and staff

The proximate cause of Danielle’s inviting me to guest-blog at Concurring Opinions was a celebration we had at Fordham of my colleague Robert Kaczorowski‘s publication of “Fordham University School of Law: A History,” the publication of which she had blogged here. The  first half the book analyzes decanal administrations prior to those of Dean John Feerick, who remains an illustrious and beloved member of the Fordham faculty. This section of the book is remarkable for being the very opposite of “law porn“: it tells the story of several decades of a law school’s decline. This decline, Kaczorowski convincingly argues, was driven largely by the insatiable voraciousness with which the central university plundered the law school’s revenues (read student tuition) for its own, non-law purposes. Today, we call that plundering the “central services charge.” At many universities, not just my own, central charges are a major driver of law school costs.

The central services charge is related to the explosive growth of the administrative sector within universities. Read More

“The Creditor Was Always Right”

What would a world of totally privatized justice look like? To take a more specific case—imagine a Reputation Society where intermediaries, unbound by legal restrictions, could sort people as wheat or chaff, credit-worthy or deadbeat, reliable or lazy?

We’re well on our way to that laissez-faire nirvana for America’s credit bureaus. While they seem to be bound by FCRA and a slew of regulations, enforcement is so wan that they essentially pick and choose the bits of law they want to follow, and what they’d like to ignore. That, at least, is the inescapable conclusion of a brief but devastating portrait of the bureaus on 60 Minutes. Horror stories abound regarding the bureaus, but reporter Steve Kroft finds their deeper causes by documenting an abandonment of basic principles of due process:
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Prosecutors, Gambling and Dead Horses

Should federal prosecutors who settled a tax fraud case with the New York Racing Association back in 2003 (amended in 2005) be kicking themselves? Besides commitments typical of criminal settlement agreements (called deferred prosecution agreements), to improve internal control and governance, this one required the NYRA to continue its best efforts to install gambling machines at the track. It finally did so last year and the results have included the deaths of 21 horses during the winter meet.

Gambling is a controversial topic and New York State politicians had in 2003 just begun a push to expand the kinds of gambling that are legal in the state, starting with video gaming machines at horse racetracks. Why federal prosecutors settling a criminal tax suit should have anything to say about the NYRA’s role in advancing this agenda is not clear. Prosecutors did not explain their reasoning when signing the DPA.

In any event, the NYRA worked earnestly to move its gambling program along amid growing political and legal controversy in the state over gambling. It finally prevailed, opening a gambling emporium at the Aqueduct track in Queens in October 2011. In the ensuing season, an astonishingly high number of horses — 21 — died while racing.

In March, Governor Andrew Cuomo formed a task force to investigate and in May took state control over the track from the NYRA. The task force released its report last week identifying numerous causes for the deaths and prescribing extensive reforms of the NYRA and Aqueduct operations. Among the culprits: casino funding was allocated to massively increase awards to owners of winning horses in lower-level claiming races. Read More