August 2011

by Jeremy Leaming

UC Berkeley Law school professor Goodwin Liu, whose nomination to the federal bench was successfully filibustered by Senate Republicans, is receiving a much different reception in California, where his nomination to the state’s Supreme Court is expected to be voted on later today.

The San Jose Mercury News reports that today’s confirmation hearing “appears as if it will be a downright lovefest.” The newspaper notes that the three-member commission, which will vote on Liu’s nomination made by Gov. Jerry Brown earlier this summer, will hear from supporters of the nomination, because “no individual or group” had asked to speak against Liu. The vast majority of letters submitted to the commission favor Liu’s (pictured) nomination. A small number of letters, including one from the right-wing outfit Judicial Watch, argued against confirmation.

Following today’s hearing, 3 p.m., PDT, the three-member commission is expected to vote on confirming the nomination. The hearing will be broadcast live here.

The California Commission on Judicial Nominees Evaluation also gave Liu, the former chair of the ACS Board of Directors, its highest evaluation, the Los Angeles Times reported.

Alice A. Salvo, chairwoman of the state Commission on Judicial Nominees Evaluation, wrote, “Professor Liu possesses a brilliant intellect, alone with exceptional gifts for research and writing, which allow him to parse complex and obscure legal doctrines and present them in the form of viable understandable concepts.”

Liu, a son of Taiwanese immigrants, was born in Georgia and grew up in Sacramento. Had Liu been confirmed to the U.S. Court of Appeals for the Ninth Circuit, he would have added greatly needed diversity to the Circuit. Republican senators and right-wing activists groups, however, launched a campaign to distort Liu’s academic scholarship and deride his work for public interest groups. Some senators also said they could not get over Liu’s criticism of then-Supreme Court nominee Samuel Alito. The New York Times in an editorial blasted the opposition to Liu’s nomination as “laughably thin.”  

Following the filibuster of Liu’s nomination to the federal bench, ACS Executive Director Caroline Fredrickson blasted the obstruction as disgraceful. “Of the 160 active judges on the federal appeals court, there is not one active Asian Pacific American judge on the Ninth Circuit,” she said.

By Michael R. Siebecker, Professor of Law, University of Florida Levin College of Law

Recently, a group of law professors petitioned the Securities & Exchange Commission (SEC) to adopt rules requiring corporations to disclose expenditures for political activities. The petition advances a variety of convincing yet fairly conservative arguments supporting both the need to adopt new political disclosure rules and the mechanisms for disseminating sufficient information. Although the petition adopts a properly dispassionate tone and focuses on pragmatic steps the SEC could easily take, the potential implications of a failure to adopt a political expenditure disclosure rule, or of a defeat of any new disclosure rule based on a First Amendment challenge, are much more striking than the petition conveys.

First, the failure to require public corporations to disclose their political expenditures would exacerbate a tragedy of transparency that already threatens the collapse of the market for corporate social responsibility (CSR), where consumers and investors employ various political, social, environmental, or ethical screening criteria before purchasing a company’s stock or products. On a worldwide basis, owners or managers of assets exceeding $14 trillion make investment decisions based on one or more CSR criteria. 

In an efficient market, fully informed consumers and investors could reward companies that engage in desired CSR practices by purchasing their products or stock, and, conversely, could punish companies that fail to engage in desired practices by refusing to purchase their products or stock. To the extent consumer and investor preferences for CSR provide compliant companies greater economic benefits (e.g., through higher consumer prices, stock premiums, or cheaper access to capital) than the cost of embracing CSR practices, an opportunity for true wealth creation exists that satisfies the preferences of consumers, investors, and corporate shareholders alike. That classic win-win opportunity quickly devolves into economic waste, however, if investors and consumers stop rewarding companies for engaging in socially responsible behavior.