Dec. 3-10


 Immediately before [Eben] Moglen was set to testify at the House Subcommittee on Commerce, Trade and Consumer Protection, Rep. Zachary Space (D-Ohio), chided the professor. "Congress tries to foster highest level of decorum," Space lectured. "I would ask you to avoid personal attacks against any companies or company employees.'" These remarks spurred a flurry of tweets from curious industry observers who wanted to know which company Moglen had criticized. That question took a surprisingly long time to answer, thanks to a highly questionable decision to remove Moglen's prepared statement from the subcommittee's Web site.
Michael Graetz advocates a national sales tax, similar to what’s in 150 countries. He figures each percentage of the tax could raise up to $70 billion, meaning a 14 percent tax would raise nearly a trillion dollars.
It's worth noting that "net neutrality" isn't a technical term. It's not something that, say, engineers tend to use. It was coined by Columbia Law Professor Tim Wu back in 2003 to describe a principle—that, essentially, a service provider doesn't put any restrictions on what you can do with your Internet access. If I pay Comcast to connect me to the Internet, then Comcast shouldn't get to decide that some sites are easier to access than others.
TIME—Dec. 6
Professor James Liebman of Columbia Law School believes a ruling could have a deeper impact. Judges could choose to cite it in their own decisions later on if they wish, and there could be wider political fallout as well. The Illinois legislature, for example, is locked in another battle about what to do with the death penalty. Seeing a strong anti-death-penalty ruling from the capital-punishment capital of the U.S. could convince fence-sitters. It could, he says, "cast a cloud over the whole debate."
Similar articles appeared on Reuters and the Daily Telegraph (U.K.).

Robert J. Jackson Jr., a professor at Columbia Law School who helped oversee the Treasury Department’s rules on compensation at bailed-out companies, said he would look carefully at footnotes in company filings to see if they accelerated executives’ stock awards. “Even companies who pay in stock instead of cash can structure it to be taxed at this year’s rates,” Mr. Jackson said. “If it does happen, it may be a little tricky to see.”
John Coffee, a professor at Columbia Law School, said these latest suits would be hard fought. "I don't expect anyone to settle quietly while there is so much interest in the case and settling would entail an admission of wrongdoing," he said.
The Marshallese government took a first step to confront these issues by asking for advice from the Center for Climate Change Law at New York's Columbia University. The center's director, Michael B. Gerrard, in turn has asked legal scholars worldwide to assemble at Columbia next May to begin to piece together answers.
A similar item appeared on the Wall Street Journal Law Blog and Environmental Leader.
Jamal Greene, associate professor of law, said that Columbia is within its rights. “It is not constitutionally problematic for a private university to make students aware of the negative consequences of their speech acts. Columbia is not bound by the First Amendment since it is not a state actor,” he said in an email. Vincent Blasi, law professor of civil liberties, said he would not have forwarded the message. “In a political system that embraces the freedom of speech, the federal government ought not to take into account in making hiring decisions whether a job applicant passed on or responded to once-classified information that has already been published.”

Michael Gerrard, who heads the Center for Climate Change Law at Columbia Law School, said it was not a surprise that the Supreme Court decided to intervene, largely because only four votes are required in order to grant a petition. "The four justices who dissented in Massachusetts v. EPA clearly want the decision reversed," he said.
A similar article appeared on Platts.
Ronald Mann: The idea that the regularity of behavioral departures from full rationality justifies regulatory intervention has rarely gained more credence than in the context of consumer finance.  The Credit CARD Act of 2009 rests on nothing so much as the supposition that cardholder decisions about spending and repayment reflect systematic misapprehension of the likely patterns of future behavior.
Karl Sauvant: Fears of Chinese overseas investment, as of Japanese and South Korean investment in the 1980s and 1990s -- and, before that, of the great postwar US multinationals, which the French writer Jean-Jacques Servan-Schreiber dubbed "le défï américain" in the 1960s -- are misplaced. These investments were eventually accepted as making a contribution to their host countries. Similarly, the surge in China’s outward FDI is good for China and for host countries.
Rash presidential responses are "somewhat inevitable, and part of the structure of the executive branch to respond more quickly" than Congress, said Gillian Metzger, a Columbia University law professor at the Stanford conference. Even Ms. Metzger seemed skeptical of the U.S. involvement in another controversial constitutional issue: the GM and Chrysler rescues. Begun with short-term loans by President Bush, they were formed into full-fledged TARP bailouts in early 2009, eventually totaling nearly $80 billion in assistance for the car companies and related finance arms.
WNYC—Dec. 6
The Supreme Court has announced it will hear a case that involves the world's largest retailer. The case is also the nation's biggest employment discrimination lawsuit. A class action lawsuit against Wal-Mart alleges the company unfairly discriminated against hundreds of thousands of women in both pay and promotions. Suzanne Goldberg is a professor at Columbia Law School, where she directs the Center for Gender and Sexuality Law. She traces the timeline of the lawsuit, and explains what's at stake.
"Both from the questions about the Colorado case and other questions, it seems like the court is looking for ways it might strike down Proposition 8 without sending the marriage equality question to the U.S. Supreme Court," said Columbia University Law professor Suzanne Goldberg, who was co-counsel in the Colorado case.
Columbia Law School Professor John Coffee said he expects there will be more settlements between commercial and investment banks and regulators over municipal bid rigging in the not-to-distant future. He also argued that the settlements-to-come could be more extreme. He noted that these bidding agent often have close ties to local officials who are responsible for selecting banks as underwriters of bond offerings. “The first party to settle usually gets the most lenient settlement,” Coffee said.
Columbia University Associate Law Professor Matthew Waxman said military tribunal convictions can be overturned on appeal, just like those in a civilian court. And he said sentencing in such tribunals is not necessarily stricter. "We've certainly seen many civilian trials go to judgment in terrorism cases and impose very stiff sentences on terrorism suspects. And we've seen military commissions that have resulted in relatively short sentences," said Waxman.
“It is undeniably clear that the New York courts have been more liberal in allowing cities and agencies to identify properties as blighted than most jurisdictions have been,” explains law professor Thomas Merrill, an expert in property law. Still, blight is not real. It exists only where government finds it. Or as law professor Lance Liebman says, “Blight is a euphemism that’s being used to serve certain rhetorical and legalistic purposes.” “Blight is not a word of analysis—it’s a conclusion,” adds law professor Richard Briffault, another property expert. “You decide whether the area is blighted or not, but you can’t look at it and say, ‘This is blighted.’ Blight is the result.”
The SEC needs the new money to help rebuild its image after missing Bernard Madoff’s Ponzi scheme and failing to curb Wall Street practices that contributed to the financial crisis, said Harvey Goldschmid, a former Democratic SEC commissioner. “Things are going to go badly and there will be finger pointing” if the new funds aren’t approved, said Goldschmid, now a law professor at Columbia University in New York. “Those on Capitol Hill who do this to an agency ought to feel the backlash that will almost certainly come.”
The perennial Great Divide in tech policy is about the merits of applying existing regulatory models to the latest technology. The question of the moment is about whether and how government should regulate Internet broadband. And the debate is now roaming into lessons-from-history thanks to a fascinating new book, The Master Switch, by Professor Tim Wu of Columbia Law School.


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Dec. 10-17

Jane Spinak, a Columbia University professor of law and co-chair of the Task Force on Family Courts in New York City, also worries about the role of judges in problem -- solving courts. Many judges, she says, don't have the background to act as de facto social workers to drug-addicted, mentally ill, and otherwise troubled defendants who come before their benches.
Michael B. Gerrard, the director of the Center for Climate Change Law at the Columbia University Law School, sees something of a mixed result. “This decision is mostly a victory for the pro-environmental side, because it means the E.P.A. regulations will take effect (barring the very unlikely events of rehearing by the full D.C. Circuit, emergency intervention by the Supreme Court, or Congressional action).”
AT&T is the star of [Tim]Wu’s book, an intellectually ambitious history of modern communications. The organizing principle — only rarely overdrawn — is what Wu, a professor at Columbia Law School, calls “the cycle.” “History shows a typical progression of information technologies,” he writes, “from somebody’s hobby to somebody’s industry; from jury-rigged contraption to slick production marvel; from a freely accessible channel to one strictly controlled by a single corporation or cartel — from open to closed system.”
Reviews and commentary on the book also appeared in The Dallas Morning News, Salon,, Nature, the Minneapolis Star-Tribune, TechCrunch, and The Jakarta Globe.

Columbia Law School Professor Gillian Metzger said that the argument in the ruling is that requiring individuals to buy insurance is not in the enumerated powers of Congress, and not that the mandate goes against the individual rights set out in the Constitution.

NPR—Dec. 13
Tim Wu, a professor of law at Columbia University, thinks Twitter is hypocritical because it permitted Iranian activists to plan political activities on its site but not WikiLeaks supporters. "There are people who should demand of Twitter: 'What are you doing? Since when are you in the business of deciding who and who isn't a good civil disobedience movement?' "
Similar articles appeared in The Washington Post, Lawfare, and the Syracuse Post-Standard.
Columbia Law School professor and property expert Richard Briffault said that this decision officially removes the legal question from the project. "They’ve had a green light for a while. This just confirms it," he said.
Gillian Metzger, a professor of law at Columbia University, disagrees: "Congress was regulating activity, the activity of accessing health care. Even if you don't purchase insurance, it's not the case that you are forgoing health care. ... Once you view the decision to forego insurance as a decision about accessing health care, its activity, and Congress should be able to regulate it."
Similar articles appeared in the Boston Business Journal and Phoenix Business Journal.
The division on the Airgas board may end up being a positive, Columbia Law School professor John Coffee said. "I don't think there's anything wrong with directors being dissident and disagreeing with others," Coffee said. "The fact that one group disagrees with the other ... that's exactly where the rubber meets the road."
NEW YORK TIMES (Room for Debate Blog)—Dec. 14
Abbe Gluck: It is important to understand that Judge Hudson’s opinion concerns only one provision — albeit an important one — of this lengthy law. Even if higher-level courts ultimately agree with him about the constitutionality of the individual mandate (something still much in doubt), such a decision would not necessarily mean that the entire health reform statute would fall.
WALL STREET JOURNAL (Health Blog)—Dec. 14
The authors write that in no cases did physicians participate in the mediation. That misses some opportunities — first, to “repair the relationship between human beings,” that is, the physician and the patient (or family of the patient), Carol Liebman, co-author of the study, a professor of law at Columbia Law School and director of the school’s mediation clinic, tells the Health Blog. It also misses the chance to collect information from patients, families and physicians to fill in the blanks of what actually happened, and if there was an error, to figure out how to prevent it from happening again, she says.
A similar article appeared in Crain’s Health Pulse (subscription required) and Healthcare Finance News.
Faced with smaller budgets, small-and mid-sized cities often lack sufficient resources to develop ordinances to encourage green building in their municipalities, and that can halt progress. Michael B. Gerrard, director of the Center for Climate Change Law at Columbia Law School, wanted to change that. Along with a team of professionals, Gerrard spent months crafting a model green-building ordinance. His goal: Offer a thorough ordinance that can be used to promote environmentally sound construction to cities that don’t have green-building ordinances in place.
NPR—Dec. 15
[Michael] Graetz tells [Don] Gonyea that President Teddy Roosevelt got the estate tax in its current form through Congress in 1916, just three years after the start of the federal income tax. Graetz says that the public accepted the tax as another progressive-era reform. "It was the beginning of the progressive era," says Graetz. "The income tax had just come in, in 1913. So, the public was very interested in progressive taxation and the estate tax was a natural piece of that kind of system."
Graetz also appeared on WGN-AM. Similar articles appeared in Forbes, the National Review Online, and on Bloomberg.
Susan Sturm, George M. Jaffin Professor of Law and Social Responsibility, Columbia Law School, gave a talk on “Reframing the Equality Agenda.” Sturm’s talk focused on the practical implications of how to incorporate gender diversity within an organization. “What’s going to connect the move at the top to more systematically rooted changes?” she asked. According to Sturm, culture change has to be involved in generating more balanced corporate leadership and institutional change.
"Ordinarily, an ISS recommendation is a decisive victory. Index investors are pretty passive. But in more complicated or hostile situations, ISS does not mean automatic victory," said Columbia University Law School professor John Coffee. "I don't think they are losing their clout, but they are in the danger zone of where the rubber meets the road.”
“There was one department in these financial institutions investing in Madoff and another a floor away buying mortgage-backed securities. Both were looking at unusually attractive returns and saying: ‘We want this even though we should be skeptical,’” says John Coffee, a Columbia University law professor.
Accelerated J.D./MBA joint degree programs are catching on. Columbia University Law School is the latest to announce the addition of such a program, which allows students to obtain both a J.D. and MBA within three years, joining schools including Yale Law School and Northwestern University School of Law.
“I suspect there is a real desire on the part of the government to avoid pursuing the publication aspect if it can pursue the leak aspect,” said Daniel C. Richman, a Columbia law professor and former federal prosecutor. “It would be so much neater and raise fewer constitutional issues.”
John Coffee, a securities law professor at Columbia University, discusses the expansion to companies of the federal investigation into insider trading at hedge funds. Three people who worked at technology firms including chipmaker Advanced Micro Devices Inc. were arrested along with an “expert networker.”
"It's easy to have lots of winners when you're giving up this much revenue," said Michael Graetz, a former Treasury official who is now a professor at Columbia University Law School. "But we can't finance the government by borrowing forever."

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Dec. 17-31

But Daniel C. Richman, a Columbia University law professor, said that attacking a conviction as inconsistent with acquittals of the same defendant was rarely successful. “The bottom line is that inconsistent verdicts make us uncomfortable but we completely wrap our doctrine around them and accept them,” said Professor Richman, who is a former federal prosecutor. “In large part because the government is unable to complain about inconsistent acquittals,” he added, “the Supreme Court has made clear that inconsistent convictions will generally pass muster.”
A similar article appeared in The Guardian.
Tim Wu’sculture diary was such a hit with our readers that we asked him to answer our advice column this week. A quiet kid in my introductory English class approached me the other day with a batch of his poetry. He wants to be a writer and asked for “an honest appraisal” of his work and chances. Of course, the poems are awful, but I would hate to discourage him. How should I handle this? “Easy question. You cannot lose. Tell him, honestly, that his poems are awful. That scarring pain of first rejection is the greatest gift you could give to an aspiring writer. It being Christmas, consider the agony your very own myrrh and frankincense.”
A similar item appeared in the New York Observer online.
James Tierney, director of the National State Attorneys General Program at Columbia Law School, said it would be difficult for incoming Arizona AG Tom Horne to simply withdraw the lawsuit when he takes office. But if Bank of America cuts a deal with the multi-state investigation, Horne could decide to endorse it and argue against continued litigation. “That’s perfectly fine,” Tierney said. “That’s what AGs do.”
The phrase "net neutrality" is relatively new, coming into popular use as recently as 2003 as noted by the scholarly article Network Neutrality, Broadband Discrimination by Tim Wu of Columbia Law School.  But the issues at play are as old as last century's technology battles over telephones and telegraphs.
James E. Tierney, director of the National State Attorneys General Program at the Columbia University law school, said he believed Corbett could investigate Zimmerman. The attorney general is an important person in the state and he knows other important people, some of whom the attorney general could investigate, Tierney said. "How can you investigate someone you know? It happens all the time," he said.
[Tim] Wu also predicts the demise of the open Internet, but he frames it as part of a broader historical pattern in which open industries inevitably become closed. The early 20th century certainly offers examples of this pattern, which Wu dubs "the cycle." The great information industries of that era—telephone, radio, and movies—all enjoyed a brief period of free-wheeling competition before they fell under the control of a handful of large firms.
Similar articles and reviews appeared in Balkanization, The Economist, CBS and The Guardian.
The FCC will likely decide that the online space stays a meritocracy: a place where small Internet websites are just as fast and accessible as the bigger established ones. Tim Wu's a professor at Columbia Law School. “So the best sites win. YouTube is successful because people like it, rather than, Google made a good deal with Verizon or AT&T or something.”
Wu made similar comments on WNYC.
The lawsuit was filed by New York Attorney General Andrew Cuomo. People close to Cuomo said one factor in bringing the case was that he knows that the US Securities and Exchange Commission already is investigating former Lehman chief Richard Fuld and other former top Lehman executives. Cuomo "wants to go after the one party he knows isn't being sued," said John Coffee, a professor of corporate law at Columbia University.
Coffee also appeared on NPR.
"Tipping a takeover target is an original sin in the eyes of the SEC," said John Coffee Jr., a professor at Columbia Law School and an expert on securities regulation. "While there's no evidence that she traded on it, or that he was telling her to induce her to trade, it nonetheless violates the norms."
Republicans can be expected to target the only two districts still represented by white Democrats for those new minority seats — Rep. Lloyd Doggett of Austin and Rep. Gene Green of Houston, said Nathaniel Persily, a political science professor and redistricting expert at Columbia Law School.
Similar articles appeared on and Fox News Latino.
Nathaniel Persily, a Columbia University law professor, said the lawsuit may be an attempt to reduce the influence of politics in judicial retention votes. "I think judges would be hesitant to suggest that every election they have stood in has been in violation of the constitution," he said. "... If the weight of history supports the practice, one would expect the court to defer to that practice. But I can't think of any case specifically raises this issue."
[FCC Commissioner Michael] referenced Columbia Law professor Tim Wu’s book The Master Switch, which uses case studies from previous communication technologies—like radio, film, network television, and cable—to demonstrate how media consolidation and corporatization could also potentially imperil an open Internet. “And while [Wu] doesn’t believe the Internet is necessarily doomed to tread the same destructive path, surely we see signs that it could,” Copps said. “Consolidation is already well-advanced, and businesses are clearly dreaming about on-ramps with toll booths dotting the information highway.”
Wu commented on the decision on TechCrunch.
This month, Jagdish Bhagwati, another highly respected economist and a professor at Columbia University in New York, stirred up debate by arguing that rising incomes were felt widely across the country and were not bypassing the poor. “[Success in] denting poverty significantly, though nowhere near enough is that poverty is now seen by India’s poor and underprivileged to be removable,” he said.
"It's been clear for a while that the government would need to put in place some sort of periodic review, and that it would want it to improve on the annual review procedures used during the previous administration," said Matthew Waxman, a professor at Columbia Law School who worked on detainee issues during the Bush administration.
Goldman Adopts Brake Provision on Bonuses
The move was applauded by some pay experts as a good corporate governance practice. “Not many firms as far as I know have done this,” said Robert J. Jackson Jr., an associate professor at Columbia Law School. “This is another sign of Goldman’s leadership on reforming pay structures, and it will be interesting to see whether other firms follow Goldman’s lead.”
Daniel C. Richman, a professor at Columbia Law School, said it was impossible to forecast how the case might play out. “Prosecutors are scrambling in the wake of Skilling, trying to preserve parts of their convictions that they claim are untainted by the theories rejected in Skilling,” he said. “Each case ends up being unique on its facts.”
A significant factor, said Columbia University Law School Professor Jeffrey Fagan, is the absence of a drug epidemic in recent years. The three distinct periods in U.S. history when homicides have spiked, he said, coincide with the emergence of heroin, powder cocaine and crack cocaine, each of which gave rise to "a chaotic, violent street drug culture."
“What Google likes to do,” said Tim Wu, a law professor at Columbia, “is enter markets where it thinks the existing approaches are broken, and try to do a much better job.”
“Congress,” Section 8 begins, “shall have the Power To Lay and collect Taxes, Duties, Imposts and Excises, to pay for the Debts and provide for the Common Defence and general Welfare of the United States.” One of the wordsmiths of the final draft of the Constitution, Gouverneur Morris, chafed at the restrictions implied by the grammar of this phrase. So he tried to change the comma after the word “Excises” to a semi-colon. His plot was discovered and the comma restored. One constitutional scholar, Philip Hamburger of Columbia Law School, has written: “Rarely has so much rested on so small a point.”
Tim Wu: I think that WikiLeaks itself deserves the full protection of the First Amendment. I don't know whether or not WikiLeaks should have disclosed the cables, but I think they have a right to disclose those cables. I think that's essential.
FORBES—Dec. 30
While the new estate deal expires at the end of 2012, the $5 million figure is unlikely to fall. "Rates can fluctuate, but estate tax exemptions don't get reduced," says Columbia Law School professor Michael J. Graetz, who coauthored a book on the political battle over taxing inherited wealth.

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