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Dear Mr. President

bc law faculty offer advice to barack obama

Barack

AP/Wide World Photo

As he assumes office, President Barack Obama faces an unprecedented set of challenges, including two wars and a faltering economy. No doubt he’ll be needing good advice on a multitude of questions, from what to do about tax rates to whether to close down the military prison at Guantánamo Bay. We asked a cross-section of faculty at Boston College Law School for suggestions in their area of expertise. Here’s what they had to say.

 

On the Judiciary - Prof. Daniel R. Coquillette 

I would recommend that President Obama send top Justice
Department leadership to all meetings of the Committee on Rules of Practice and Procedure of the US Judicial Conference. This committee, like the advisory committees that report to it, plays a crucial role in determining what goes on in our federal courts, setting rules of evidence, rules for federal criminal, civil, and appellate procedure, and rules for bankruptcy proceedings.

As to judicial appointments, I’d like to see the president promote outstanding judges from within the ranks, regardless of their ideology. This would mean appointing moderate Republicans and independents as well as Democrats. By emphasizing that the judiciary has a nonpartisan role, he would encourage sitting judges to take that same attitude in their work.

Most urgently, I would urge the president to give the judiciary a substantial pay raise. Associates at major New York law firms now make more than federal judges. We don’t want people resigning from the bench because they need to send their kids to college, nor do we want the only people who can accept an appointment to the federal bench to be those who have made a lot of money in practice or married into money.

J. Donald Monan, SJ, Professor Daniel R. Coquilette was a law clerk for Supreme Court Chief Justice Warren E. Burger and is a Reporter to the Committee on Rules of Practice and Procedure for the US Judicial Conference.

 

On Corporate Governance - Prof. Kent Greenfield

I urge the new president to continue speaking with confidence about our nation’s ability to overcome. He can use the bully pulpit to remind executives that they act on behalf of all those who invest in their companies, not just shareholders but also employees and communities.

I recommend that he focus on corporate governance, a more efficient way of protecting stakeholder and public interests than post-hoc regulation or redistribution. Our current problems developed because corporate governance skewed toward executives and financiers, with the acquiescence of the courts and regulators. Needed is a countervailing power at the table interested in stable, long-term growth, the fruits of which are broadly shared. This could be achieved, as in the European Union, through employee representation on boards of large companies.

I also suggest he assert federal power over corporate governance. Delaware has disproportionate power; its extreme pro-management law imposes negative externalities on other states, the national economy, and company stakeholders. One small state should not establish the rules for governance of our most powerful businesses.

Professor Kent Greenfield, author of The Failure of Corporate Law, was an early supporter of Obama’s candidacy.

 

On Mortgages - Prof. Ingrid Hillinger

President Obama should encourage Congress to amend chapter 13 of the Bankruptcy Code to let debtors “strip down” their home mortgages to their current value and pay that value plus interest. The Democrats wanted to include this provision in the bailout legislation passed last fall, but they backed down. If it were enacted now, it would allow many debtors to remain in their homes at no cost to the government. Because bankruptcy law is federal law, trumping state law every time, this solution would also get around the problem of contract covenants precluding modification.

Professor Ingrid Hillinger teaches Business Bankruptcy, Consumer Bankruptcy, and Secured Transactions.


On Financial Regulation - Prof. Renee Jones

President Obama can promote more responsible governance and high ethical standards in corporate America by installing strong leadership at the Securities and Exchange Commission. Strengthening the SEC is an essential step toward restoring integrity and trust in US financial institutions. The SEC should be the frontline federal agency when it comes to policing corporate conduct and curbing misleading practices before fraud becomes widespread, and to do this the agency will need to deploy a vigorous enforcement program. The SEC must also stand up for investors in Congress and the courts, working to protect investors’ rights to reliable financial disclosure as well as the right to sue corporate leaders for financial fraud. This is no time for an SEC that blindly trusts in markets to constrain corporate misconduct. We are currently living with the unfortunate results of that approach.

Professor Renee Jones teaches Corporations, Corporate Governance, and Securities Regulation.

 

 On Immigration - Prof. Daniel Kanstroom

I would ask the new president to support a legalization program (not an “amnesty”) that might require applicants to pay a fine, etc. We simply cannot deport 12 to 15 million people. We need to recognize the role of trade and development policies. In particular, US foreign assistance should increase, and it should be easier for private capital (“remittances”) to flow into Mexico, Guatemala, and other countries in the region. Another essential is pro bono legal services or government-appointed counsel for indigent persons facing deportation, especially unaccompanied children and physically or mentally disabled persons. We must reform current harsh detention practices. We need neutral and independent immigration judges who order removal only after formal hearings that conform to accepted norms of due process. It is also important to restore humane, discretionary relief from deportation orders, such as was available before 1996. Finally, we need federal administrative and judicial review of all immigration decisions, pre and post-deportation.

Professor Daniel Kanstroom is Director of the Boston College Law School International Human Rights Program and Associate Director of the Boston College Center for Human Rights and International Justice.


On Government Ethics - Prof. Judith A. McMorrow

Ethical issues will arise daily in the new administration, but they may go unrecognized when they do. The president’s challenge is to create a climate of ethical awareness that encourages full, deep, and rich conversation about the clash of principles that faces anyone in power.

To create that climate, and allow for a vigorous and respectful development of all interests, I advise the president to take three steps: To create the conditions for strong ethical discussions, surround yourself with people who have the intellect and courage to offer perspectives with which you do not feel a natural harmony, as well as people who share your interests and values. You will then need to protect everyone on your team from both overt and subtle backlash when they present controversial views.

Encourage cabinet members to create that same pattern of respectful dissent throughout their own departments. Review  departments each year, for it is so easy for the dissenting view to be marginalized or eliminated, leaving only an echo chamber of views that agree with you.

Reawaken the discussion of ethical concerns by asking each department to begin a ground-level review of what principles of ethics should guide their behavior. Create a system whereby those principles can be discussed, and disagreed with, by frontline employees who present the government to the people. Over the course of a year, ask departments to gather with other departments to identify shared and differing perspectives. This will encourage the habit of conversation—and good conversation about government ethics increases the chance that decisions will reflect ethical concerns.

Professor Judith A. McMorrow teaches Torts and Professional Responsibility and related topics. She has written widely on professional responsibility.


On Civil Liberties - Prof. Mary-Rose Papandrea

For the last eight years, the Bush Administration has shown its disdain for the Constitution, federal laws, and treaty obligations. It may be challenging at times to deal with the threat of terrorism within the rule of law, but doing otherwise weakens us in the end by depriving us of our moral authority in the world and our role as a model of democracy.

To restore the country to its former place, President Obama should start by shutting down the prison at Guantánamo, along with the military commissions set up to judge Guantánamo prisoners. Extraordinary rendition and holding terror suspects in secret “black sites” must also end. Torture must once more be off limits, as must unnecessary privacy invasions and collection of data on private citizens.

Finally, the Obama Administration should conduct governmental affairs as transparently as possible. As Justice Louis Brandeis famously said, “Sunlight is the best disinfectant” for immoral and illegal actions.

Professor Mary-Rose Papandrea’s primary research and teaching interests include civil procedure, constitutional law, media law, and national security and civil liberties.


On the Environment - Prof. Zygmunt Plater 

I would like to see the new president redirect land-use and environmental policies to meet 21st century challenges. Climate change is only the most prominent of those, requiring domestic and international cap-and-trade legal structures and a host of carbon-reduction regulations. Green engineering technologies need subsidies, but they also need legal regulatory structures.

Systems to regulate air, water, and consumer toxics pollution must be restarted, with regulations tightened. Environmental protections for wildlife and natural resources are on the books but need serious enforcement, including federal management plans for timberlands, mining, rangeland grazing, and water conservation based on objective sustainability principles rather than unsustainable industry-lobbied equivocations. And a new era in energy costs means that the automobile’s dominance of transportation and land-use will surely end.

We could and should see, thirty-seven years after the GOP defeated it, a national land-use planning subsidy and consistency program that could have guided state governments over the past three decades and prevented dysfunctional, automobile-dominated sprawl that now burdens national efficiency.

Most fundamentally, a pluralistic legal process must be reopened in each of these areas, including transparency in corporate and administrative processes, integrity in the government’s use of science, and a return to citizen enforceability, the vehicle that has shaped environmental law since its start in the 1960s.

Professor Zygmunt Plater teaches environmental law and is lead author of Environmental Law and Policy: Nature, Law, and Society.

 

On the Financial Crisis - Prof. Brian Quinn

The financial crisis requires both short and long-term responses. Over the long term, the Obama administration must design a new regulatory structure with both flexibility (to keep pace with financial innovations in the marketplace) and robustness (to reduce vulnerabilities to systemic risk).

In the short term, the administration can rebuild confidence in the financial sector and assure the flow of credit to worthy borrowers by replacing our current mortgage system, which has proven vulnerable to problems of asymmetric information. A new mortgage system reliant on covered bonds, which are both safer and more transparent than the mortgage-backed securities sold in the US, will go a long way toward alleviating these information problems. Covered bonds, used successfully in Europe, offer the best features of securitization while maintaining sustainable long-term incentives.

Professor Brian Quinn joined Boston College Law School in 2008. He teaches Corporations, Mergers and Acquisitions, and Deals.

 

On Taxes - Prof. James Repetti

I would like to see the president simplify our tax system with a view toward increasing efficiency and equity.

We currently tax corporate income twice, first through the corporate income tax and then through the taxation of dividends received by individual stockholders.

We should end this double taxation, either by allowing corporations to deduct dividends paid to their stockholders or by allowing stockholders to claim a credit on their individual tax return for their share of the taxes paid by the corporation that are attributable to the dividends they receive. While we’re doing this, we should also end the arbitrary preferences that riddle the existing corporate tax code. We should further simplify individual income taxes by ending the Alternative Minimum Tax. If Congress wishes to reduce the tax benefit of certain taxpayer expenditures, it should do so directly, rather than indirectly through the complex AMT.

We should retain the estate tax at the 2009 rates and exemption amounts. The estate tax is more efficient than corporate and individual income taxes because it has the least influence on taxpayer behavior during the taxpayer’s productive years. The estate tax also needs reform, however. We need to reunify the estate and gift tax credits (there’s no reason to give one size credit for gifts and another for bequests). Moreover, these credits should be portable for married couples so that credit that is unused by one spouse can be used by the surviving spouse.

Professor James Repetti teaches tax law. Among his recent articles is “Democracy and Opportunity: A New Paradigm in Tax Equity.”