Philip Elman was responsible, in the Solicitor General's Office of the Department of Justice,... more Philip Elman was responsible, in the Solicitor General's Office of the Department of Justice, for reviewing hundreds of cases involving civil rights, civil liberties and economic justice. He was a law clerk to Justice Frankfurter during the Second World War and then a lawyer in the Solicitor General's office for seventeen years, a principal draftsperson of the government's briefs in the Brown cases. He later served as Commissioner of the Federal Trade Commission, where he played a major role in the rebirth of the consumer movement and in the antismoking movement. This book presents a first-hand account of legal education, clerkship and government lawyering over a fifty year period, especially an account of events within the Justice Department and the Federal Trade Commission; and a secondary historical interpretation of events.
is an official publication of the American Council on Consumer Interests. Published semiannually.... more is an official publication of the American Council on Consumer Interests. Published semiannually. A subscription to ACI is included with individual, associate, student, and institutionlsu bscriber memberships in ACCI.
This Article reaches into the personal history of Monroe Freedman, a pioneer in multi-dimensional... more This Article reaches into the personal history of Monroe Freedman, a pioneer in multi-dimensional legal ethics, to advance an explanation for his advocacy and his signal contributions to legal ethics - particularly his landmark article of 1966, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, where he inquired into situations in which candor might not be either moral or professional. It argues that his outspoken defense of lying as sometimes necessary and even moral behavior in the adversary system should be understood as an outgrowth of his early religious perspective about the nature of moral obligations, as well as a response to excesses of the Cold War that touched him personally. It contends that Monroe’s confidence in the fundamental fairness of government rules, processes, and punishments - and that of hundreds of other young lawyers - was undermined by experience with the National Lawyers Guild, inquisitions, and FBI surveillance durin...
Brooklyn Journal of Corporate Financial Commercial Law, 2012
and the other participants at the Brooklyn Law School symposium "The CFPB After a Year." Thanks t... more and the other participants at the Brooklyn Law School symposium "The CFPB After a Year." Thanks to Arthur Flynn and the editors of the Journal of Corporate, Financial & Commercial Law for the journal's editorial assistance. 1. "On one bright, clear day, Diogenes was walking up and down the market place, holding a lighted lantern high in front of him and peering around as if searching for something. When people gaped and asked him what he was doing, he replied, 'I am looking for an honest man."' David Quinn, Teachings of Diogenes, http://members.optushome.com.auldavidquinn000 /Diogenes%20Folder/Diogenes.html (last visited Oct. 11, 2012) (recounting a story told of Diogenes). 2. See generally NORMAN I. SILBER, TEST AND PROTEST: THE INFLUENCE OF CONSUMERS 1-16 (1983) (addressing the role in the United States of one of the first consumer products testing agencies); Norman I. Silber, From The Jungle to The Matrix: The Future of Consumer Protection in Light of its Past, in CONSUMER PROTECTION IN THE AGE OF THE INFORMATION ECONOMY 15, 15-34 (Jane K. Winn ed. 2006) [hereinafter Silber, From The Jungle to The Matrix] (twentieth century developments). See also Spencer Weber Waller et al.
Exceptional Nonprofits and Nonprofit Exceptionalism: This set of remarks was prepared for a collo... more Exceptional Nonprofits and Nonprofit Exceptionalism: This set of remarks was prepared for a colloquium designed to explore whether recent proposals to heighten proscriptive regulation and general supervision of nonprofit organizations trenches inappropriately on First Amendment Freedoms.
P rompted by economic, political, and cultural changes buffeting the nonprofit sector, public dem... more P rompted by economic, political, and cultural changes buffeting the nonprofit sector, public demand for greater financial accountability on the part of nonprofit organizations has intensified in recent decades.' Increasingly, this demand is reflected by the imposition of new legal standards on directors and managers, and also on the employees and consultants on which they rely. These newer impositions include additional federal and state disclosure rules, changes to state corporation
In December, 1952, before the option of gradualism was placed before the Supreme Court in the Bro... more In December, 1952, before the option of gradualism was placed before the Supreme Court in the Brown litigation, Philip Elman could count on only three sure votes to reverse Plessy v. Ferguson; his decision to include a recommendation for gradual implementation of desegregation in the government's brief flowed from his efforts to gain further support for reversal. He based his count to a considerable degree upon what he had learned in informal conversations with Justice Felix Frankurter. This publication explores the extent of ex parte communication not only between Elman and Frankfurter but between multiple litigants and multiple justices. It extends the discussion contained in "With All Deliberate Speed: The Life of Philip Elman" (U. of Michigan Press, 2004), an oral history memoir based upon recordings originally conducted under the auspices of the Columbia Oral History Research Office.
Herbert Wechsler entered the City College of New York when he was fifteen years old; he was twent... more Herbert Wechsler entered the City College of New York when he was fifteen years old; he was twenty-two when he finished at the top of the Columbia Law School class of 1931. He taught at Columbia Law School for a year, clerked with Justice Harlan Fiske Stone, and returned to teaching instead of to private practice-having decided, he stated later, that he would rather "try and think great thoughts than do great things. "I His subsequent career, much of it spent at Columbia, reflects attention to both understanding and fostering the coherence of the legal system. He took a pivotal role in conceptualizing the Model Penal Code. He authored two exceptional casebooks: with Henry Hart, Hart and Wechsler's The Federal Courts and the Federal System, 2 and with Jerome Michael, Criminal Law and Its Administration. 3 For more than twenty years, he directed the activities of the American Law Institute, including the publication of its Restatements.
This talk explores several issues connected with a change from a legal presumption of transparenc... more This talk explores several issues connected with a change from a legal presumption of transparency to one of confidentiality of board deliberations and work product, a change which is proposed by the draft Principles of the Law of Nonprofit Organizations. In addition to presenting historical and cultural claims, it offers a Coasean analytic model to demonstrate that under the most reasonable assumptions a presumption of transparency would be beneficial.
Accepting the logic of the court in Mainstream Marketing v. FTC and other rulings on the Telemark... more Accepting the logic of the court in Mainstream Marketing v. FTC and other rulings on the Telemarketing Sales Rule, namely that the distinction between for-profit and nonprofit solicitation is constitutionally permitted because there is a "rational basis" for doing so, this article questions the wisdom of the exemption as a matter of social policy. Given the broad mandate of the FTC to protect the privacy rights of American citizens and to alleviate the problems of deceptive and fraudulent telemarketing practices aimed at American consumers, shouldn't we include nonprofit donors and prospective donors within the class to be protected? This article acknowledges that it is not unconstitutional for the FTC to have created such a profit/nonprofit distinction, but observes that it is by no means constitutionally necessary for the Commission to have done so. It argues that it would be a better policy for Congress to empower the FTC to protect consumers against invasions of privacy regardless of the corporate legal form of the privacy intruder, and to protect against deceptive and fraudulent marketing practices regardless of the corporate form in which the abuse occurs. Our argument proceeds to examine whether it is constitutionally permissible to eradicate the for-profit/not-for-profit distinction. After analyzing the statutory language that created the distinction between purely commercial and not for profit solicitation, it considers recent case law justifying the exemption of nonprofit corporations from the do-not-call registry, principally based upon the value of the nonprofit sector's ability to solicit and the chilling of non-purely commercial speech. This part concludes that the exemption from a national do-not-call registry for nonprofit solicitors is not necessary. Part Three evaluates the gravity of the problems associated with nonprofit solicitation, building on earlier work in this area. It considers claims made by the FTC and by nonprofit organizations which maintain that the problems associated with telemarketing are less serious than those which have been deemed to require the do-not-call registry for for-profit telemarketing. After reviewing problems including unwanted invasions of privacy, fraud, abuse of the nonprofit form, and possible unintended gaming effects which can result from the dual policy regime created by the FTC exemption, we conclude that the problems which flow from a nonprofit exemption from the FCC's regulations are akin to those which justify the FTC's consumer regulation in other areas. Part Four examines countervailing justifications for the exemption from a nationwide do-not-call list, growing out of the distinctive character of some or all nonprofits, which might militate in favor of allowing them to retain their current advantage over for-profits in the telemarketing context. This section explores whether nonprofits should remain exempt based on the fact that their solicitations (1) advance activities of a charitable nature and which are traditionally considered to be of great social value; (2) are chronically disadvantaged in comparison with for-profits in terms of their ability to raise needed funds, for which the telemarketing exemption compensates as a form of subsidy; and (3) are more favorably received in their telemarketing practices because of their non-pecuniary objectives, and because of their social and other contributions. We conclude that contemporary scholarship offers some limited support for each of these claims. Finally, in Part Five, we evaluate the desirability of eliminating the exemption in light of benefits and costs. Here we argue for the importance of respecting the freedom of consumers to decide when to subject themselves to aggressive, intrusive solicitation, and when not to; freedom that is, to choose whether or not to enter the "donor/donee matrix." Given the intrusive nature of the nonprofit soliciting that takes place and the alternate channels for less intrusive solicitation which are available, we conclude that the distinction should not survive as it currently is maintained. It would be a more sound social policy to create a national opt-out/do-not-call registry as well as a do-not-share registry for nonprofit corporations.
The Dodd-Frank Act of 2010 brings nonbank payday lenders under federal regulation for the first t... more The Dodd-Frank Act of 2010 brings nonbank payday lenders under federal regulation for the first time. The question of precisely how to regulate the payday loan industry creates a number of difficult challenges for the newly created Consumer Financial Protection Bureau (CFPB). Whereas most consumer advocates would prefer to ban or strictly limit high cost payday lending activity and address unfair/abusive lending practices, the CFPB must also be attentive to the impact of regulation on credit access for low-wage, credit-constrained payday borrowers. This article highlights the policy, legal, and institutional issues raised during the CFPB's decision-making process. The CFPB has the opportunity to dramatically shift the longstanding consumer protection paradigm in favor of real-world protection of vulnerable borrowers and, thereby, to realize the hopes of the activists who helped to bring the Bureau into existence.
... By the time we get around to doing something for kids like you, you will have graduated from ... more ... By the time we get around to doing something for kids like you, you will have graduated from school." That's what we were arguing, even though the Supreme Court had held again and again that constitutional rights are personal, that if an individual's consti-tutional rights are ...
Philip Elman was responsible, in the Solicitor General's Office of the Department of Justice,... more Philip Elman was responsible, in the Solicitor General's Office of the Department of Justice, for reviewing hundreds of cases involving civil rights, civil liberties and economic justice. He was a law clerk to Justice Frankfurter during the Second World War and then a lawyer in the Solicitor General's office for seventeen years, a principal draftsperson of the government's briefs in the Brown cases. He later served as Commissioner of the Federal Trade Commission, where he played a major role in the rebirth of the consumer movement and in the antismoking movement. This book presents a first-hand account of legal education, clerkship and government lawyering over a fifty year period, especially an account of events within the Justice Department and the Federal Trade Commission; and a secondary historical interpretation of events.
is an official publication of the American Council on Consumer Interests. Published semiannually.... more is an official publication of the American Council on Consumer Interests. Published semiannually. A subscription to ACI is included with individual, associate, student, and institutionlsu bscriber memberships in ACCI.
This Article reaches into the personal history of Monroe Freedman, a pioneer in multi-dimensional... more This Article reaches into the personal history of Monroe Freedman, a pioneer in multi-dimensional legal ethics, to advance an explanation for his advocacy and his signal contributions to legal ethics - particularly his landmark article of 1966, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, where he inquired into situations in which candor might not be either moral or professional. It argues that his outspoken defense of lying as sometimes necessary and even moral behavior in the adversary system should be understood as an outgrowth of his early religious perspective about the nature of moral obligations, as well as a response to excesses of the Cold War that touched him personally. It contends that Monroe’s confidence in the fundamental fairness of government rules, processes, and punishments - and that of hundreds of other young lawyers - was undermined by experience with the National Lawyers Guild, inquisitions, and FBI surveillance durin...
Brooklyn Journal of Corporate Financial Commercial Law, 2012
and the other participants at the Brooklyn Law School symposium "The CFPB After a Year." Thanks t... more and the other participants at the Brooklyn Law School symposium "The CFPB After a Year." Thanks to Arthur Flynn and the editors of the Journal of Corporate, Financial & Commercial Law for the journal's editorial assistance. 1. "On one bright, clear day, Diogenes was walking up and down the market place, holding a lighted lantern high in front of him and peering around as if searching for something. When people gaped and asked him what he was doing, he replied, 'I am looking for an honest man."' David Quinn, Teachings of Diogenes, http://members.optushome.com.auldavidquinn000 /Diogenes%20Folder/Diogenes.html (last visited Oct. 11, 2012) (recounting a story told of Diogenes). 2. See generally NORMAN I. SILBER, TEST AND PROTEST: THE INFLUENCE OF CONSUMERS 1-16 (1983) (addressing the role in the United States of one of the first consumer products testing agencies); Norman I. Silber, From The Jungle to The Matrix: The Future of Consumer Protection in Light of its Past, in CONSUMER PROTECTION IN THE AGE OF THE INFORMATION ECONOMY 15, 15-34 (Jane K. Winn ed. 2006) [hereinafter Silber, From The Jungle to The Matrix] (twentieth century developments). See also Spencer Weber Waller et al.
Exceptional Nonprofits and Nonprofit Exceptionalism: This set of remarks was prepared for a collo... more Exceptional Nonprofits and Nonprofit Exceptionalism: This set of remarks was prepared for a colloquium designed to explore whether recent proposals to heighten proscriptive regulation and general supervision of nonprofit organizations trenches inappropriately on First Amendment Freedoms.
P rompted by economic, political, and cultural changes buffeting the nonprofit sector, public dem... more P rompted by economic, political, and cultural changes buffeting the nonprofit sector, public demand for greater financial accountability on the part of nonprofit organizations has intensified in recent decades.' Increasingly, this demand is reflected by the imposition of new legal standards on directors and managers, and also on the employees and consultants on which they rely. These newer impositions include additional federal and state disclosure rules, changes to state corporation
In December, 1952, before the option of gradualism was placed before the Supreme Court in the Bro... more In December, 1952, before the option of gradualism was placed before the Supreme Court in the Brown litigation, Philip Elman could count on only three sure votes to reverse Plessy v. Ferguson; his decision to include a recommendation for gradual implementation of desegregation in the government's brief flowed from his efforts to gain further support for reversal. He based his count to a considerable degree upon what he had learned in informal conversations with Justice Felix Frankurter. This publication explores the extent of ex parte communication not only between Elman and Frankfurter but between multiple litigants and multiple justices. It extends the discussion contained in "With All Deliberate Speed: The Life of Philip Elman" (U. of Michigan Press, 2004), an oral history memoir based upon recordings originally conducted under the auspices of the Columbia Oral History Research Office.
Herbert Wechsler entered the City College of New York when he was fifteen years old; he was twent... more Herbert Wechsler entered the City College of New York when he was fifteen years old; he was twenty-two when he finished at the top of the Columbia Law School class of 1931. He taught at Columbia Law School for a year, clerked with Justice Harlan Fiske Stone, and returned to teaching instead of to private practice-having decided, he stated later, that he would rather "try and think great thoughts than do great things. "I His subsequent career, much of it spent at Columbia, reflects attention to both understanding and fostering the coherence of the legal system. He took a pivotal role in conceptualizing the Model Penal Code. He authored two exceptional casebooks: with Henry Hart, Hart and Wechsler's The Federal Courts and the Federal System, 2 and with Jerome Michael, Criminal Law and Its Administration. 3 For more than twenty years, he directed the activities of the American Law Institute, including the publication of its Restatements.
This talk explores several issues connected with a change from a legal presumption of transparenc... more This talk explores several issues connected with a change from a legal presumption of transparency to one of confidentiality of board deliberations and work product, a change which is proposed by the draft Principles of the Law of Nonprofit Organizations. In addition to presenting historical and cultural claims, it offers a Coasean analytic model to demonstrate that under the most reasonable assumptions a presumption of transparency would be beneficial.
Accepting the logic of the court in Mainstream Marketing v. FTC and other rulings on the Telemark... more Accepting the logic of the court in Mainstream Marketing v. FTC and other rulings on the Telemarketing Sales Rule, namely that the distinction between for-profit and nonprofit solicitation is constitutionally permitted because there is a "rational basis" for doing so, this article questions the wisdom of the exemption as a matter of social policy. Given the broad mandate of the FTC to protect the privacy rights of American citizens and to alleviate the problems of deceptive and fraudulent telemarketing practices aimed at American consumers, shouldn't we include nonprofit donors and prospective donors within the class to be protected? This article acknowledges that it is not unconstitutional for the FTC to have created such a profit/nonprofit distinction, but observes that it is by no means constitutionally necessary for the Commission to have done so. It argues that it would be a better policy for Congress to empower the FTC to protect consumers against invasions of privacy regardless of the corporate legal form of the privacy intruder, and to protect against deceptive and fraudulent marketing practices regardless of the corporate form in which the abuse occurs. Our argument proceeds to examine whether it is constitutionally permissible to eradicate the for-profit/not-for-profit distinction. After analyzing the statutory language that created the distinction between purely commercial and not for profit solicitation, it considers recent case law justifying the exemption of nonprofit corporations from the do-not-call registry, principally based upon the value of the nonprofit sector's ability to solicit and the chilling of non-purely commercial speech. This part concludes that the exemption from a national do-not-call registry for nonprofit solicitors is not necessary. Part Three evaluates the gravity of the problems associated with nonprofit solicitation, building on earlier work in this area. It considers claims made by the FTC and by nonprofit organizations which maintain that the problems associated with telemarketing are less serious than those which have been deemed to require the do-not-call registry for for-profit telemarketing. After reviewing problems including unwanted invasions of privacy, fraud, abuse of the nonprofit form, and possible unintended gaming effects which can result from the dual policy regime created by the FTC exemption, we conclude that the problems which flow from a nonprofit exemption from the FCC's regulations are akin to those which justify the FTC's consumer regulation in other areas. Part Four examines countervailing justifications for the exemption from a nationwide do-not-call list, growing out of the distinctive character of some or all nonprofits, which might militate in favor of allowing them to retain their current advantage over for-profits in the telemarketing context. This section explores whether nonprofits should remain exempt based on the fact that their solicitations (1) advance activities of a charitable nature and which are traditionally considered to be of great social value; (2) are chronically disadvantaged in comparison with for-profits in terms of their ability to raise needed funds, for which the telemarketing exemption compensates as a form of subsidy; and (3) are more favorably received in their telemarketing practices because of their non-pecuniary objectives, and because of their social and other contributions. We conclude that contemporary scholarship offers some limited support for each of these claims. Finally, in Part Five, we evaluate the desirability of eliminating the exemption in light of benefits and costs. Here we argue for the importance of respecting the freedom of consumers to decide when to subject themselves to aggressive, intrusive solicitation, and when not to; freedom that is, to choose whether or not to enter the "donor/donee matrix." Given the intrusive nature of the nonprofit soliciting that takes place and the alternate channels for less intrusive solicitation which are available, we conclude that the distinction should not survive as it currently is maintained. It would be a more sound social policy to create a national opt-out/do-not-call registry as well as a do-not-share registry for nonprofit corporations.
The Dodd-Frank Act of 2010 brings nonbank payday lenders under federal regulation for the first t... more The Dodd-Frank Act of 2010 brings nonbank payday lenders under federal regulation for the first time. The question of precisely how to regulate the payday loan industry creates a number of difficult challenges for the newly created Consumer Financial Protection Bureau (CFPB). Whereas most consumer advocates would prefer to ban or strictly limit high cost payday lending activity and address unfair/abusive lending practices, the CFPB must also be attentive to the impact of regulation on credit access for low-wage, credit-constrained payday borrowers. This article highlights the policy, legal, and institutional issues raised during the CFPB's decision-making process. The CFPB has the opportunity to dramatically shift the longstanding consumer protection paradigm in favor of real-world protection of vulnerable borrowers and, thereby, to realize the hopes of the activists who helped to bring the Bureau into existence.
... By the time we get around to doing something for kids like you, you will have graduated from ... more ... By the time we get around to doing something for kids like you, you will have graduated from school." That's what we were arguing, even though the Supreme Court had held again and again that constitutional rights are personal, that if an individual's consti-tutional rights are ...
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