Legislation of the Year . . . If the Year Is 1950

Senator Charles Schumer recently announced plans to introduce the “Shareholder Bill of Rights Act of 2009.”  This bill is a compendium of corporate governance reforms that shareholder activists have been advocating for many years.  Among other things, the bill would require companies to elect the entire board of directors each year, rather than putting only a portion of the board up for a vote.  It would also require that directors receive a majority of the votes cast before being allowed to serve, and the bill would make it easier for shareholders to nominate their own director candidates to run in opposition to the candidates nominated by management.

Senator Schumer’s bill is best understood as embodying the principle that, when it comes to corporate governance, more democracy is always better.  The assumption is that corporate governance will improve in tandem with increased shareholder voting power.  I question that assumption.

First, more democracy might actually lead to worse directors. 

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Permission to Skip to the Chase

In United States v. Booker, the Supreme Court held that the mandatory federal sentencing guidelines violated a defendant’s Sixth Amendment right to trial by jury. As a remedy, the Court excised the statutory provision, 18 U.S.C. § 3553(b), requiring the district court to impose a sentence within the guideline range, thereby rendering the guidelines effectively advisory. Under Booker‘s advisory guideline regime, district courts must still calculate and consider the guidelines, but are free to impose a reasonable sentence above or below the range based on the other sentencing factors set forth in 18 U.S.C. § 3553(a).

So, sentencing is now a two-step process. (In some circuits, it’s three steps, but let that pass.) The court must first calculate the guideline range, just as it did before Booker, and then at step two determine an appropriate sentence in light of all the statutory factors.

But guideline calculations can be quite complex. The Guidelines Manual approaches 600 pages, and studies have shown that, depending on who is doing the calculating, the same set of facts can produce divergent guideline ranges. (See Professor O’Hear’s article, “The Myth of Uniformity,” 17 Fed. Sent. Rep. 249, for more on this.) Must the court, post-Booker, still resolve all disputed guideline issues, even though it has settled on an appropriate sentence under the statutory factors? Last week, in United States v. Sanner, the Seventh Circuit addressed this question.

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Eastern District of Wisconsin Bar Association Presents Awards to Michael O’Hear and Tom Shriner

 Warm congratulations to our colleague, Professor Michael M. O’Hear, who recently received the Judge Robert W. Warren Public Service Award, at a ceremony during the Eastern District of Wisconsin Bar Association’s annual meeting. It was a pleasure for a number of us to attend and see Michael receive well-deserved recognition for his service. As Nathan Fishbach, of Whyte Hirschboeck Dudek, noted in making the presentation, Michael is “a distinguished academician whose mission is to analyze and explain the dynamics of the sentencing process.” Indeed, Michael has become a national leader in the study and discussions concerning sentencing, and he has been active in this community as well. 

At the same ceremony, the Eastern District presented its Judge Myron L. Gordon Lifetime Achievement Award to Foley & Lardner’s Thomas L. Shriner, Jr., an Indiana University law graduate and well-known Milwaukee litigator (and adjunct professor of law here at Marquette). The citation accompanying the award, written by Bill Mulligan, L’60, and Dean Joseph D. Kearney, concluded with the observation that Tom is “respected and admired for his prodigious knowledge of the law, great wit, smile, and willingness to help others.”  Congratulations as well to Tom.

The full citations can be found here concerning Michael and here concerning Tom.

 

Continue ReadingEastern District of Wisconsin Bar Association Presents Awards to Michael O’Hear and Tom Shriner