Philip Bobbitt: The war aim in a war against terror is not territory, or access to resources, or conversion to our political way of life. It is the protection of civilians within the rule of law. Not coincidentally, this is what General Petraeus realized was necessary in Iraq, and it is what General McChrystal has testified will be his goal in Afghanistan.
Chapter 7 filings were up more than 42% as of November 2009, compared with the same period a year earlier, according to the research center. Chapter 13 filings rose by 12% and made up less than a third of 2009 filings as of November." That suggests it was largely ineffective," Ronald Mann, a law professor at Columbia University, said of the 2005 overhaul. "I don't think anybody who's knowledgeable about the bankruptcy system thought the statute was well crafted."
[F]or a judge to accept secret payments from a litigant cheated the public of his honest services, and that in itself was enough to prove honest-services fraud. Proving quid pro quo became superfluous. The theory was a smashing success. As John Coffee of Columbia Law School later wrote, it was "an exotic flower that quickly overgrew the legal landscape in the manner of the kudzu vine until by the mid-1980s few ethical or fiduciary breaches seemed beyond its reach."
Professor Conrad Johnson, who oversees the Clinic, said: “For many African-American and Mexican-American students, law school is an elusive goal. By analyzing enrollment figures over time and in light of common admissions criteria we are trying to inform the discussion about law school diversity.’’
However, Columbia Law School Prof. John Coffee said Dodd's decision to retire may free him to craft a legacy through bank-reform legislation. "Anyone who retires from Senate after as long a career as he has had will want to leave a monument behind," Coffee said. "I think that he would like to leave that kind of monument."
“If someone leaves the Senate after virtually 30 years, the natural incentive will be to leave a monument that will be respected, a piece of legislation that will last and be seen as a solid effort,” said John Coffee, a professor of securities law with Columbia University. “He’s going to have to put aside partisanship and not get involved in political battles.”
[P]rosecutors likely can get an order to keep him detained through a "proffer" -- providing evidence to the judge that would be offered by witnesses, rather than having to put an FBI agent on the stand, said Daniel C. Richman, a professor at Columbia Law School in New York City.
“It's like imagining Carnegie Hall, which seats almost 3000 people, filled to capacity but no Mexican Americans or African Americans allowed in," says Conrad Johnson, the Columbia professor who oversees the clinic, regarding the additional spots created over the past 15 years. “For many African American and Mexican American students, law school is an elusive goal.”
“Even though their scores and grades are improving, and are very close to those of white applicants, African-Americans and Mexican-Americans are increasingly being shut out of law schools,” said [Conrad] Johnson, who oversees the Lawyering in the Digital Age Clinic at Columbia, which collaborated with the Society of American Law Teachers to examine minority enrollment rates at American law schools.
It’s not criminal, but it is unlawful and it violates the president’s right of publicity,” said Richard Lehv. “He has the right to endorse anything and if he wants he can choose not to endorse anything at all.”
In the wake of a series of Ponzi schemes, the Securities and Exchange Commission voted last month to tighten the rules and make it much harder for money managers to misappropriate client funds. “At a stroke,” said John C. Coffee, a Columbia law school professor, in testimony to a Senate committee, “this requirement eliminates the ability of the manager to recycle funds from new to old investors.”
Paying money to Kumar through a secret Swiss account may subject Rajaratnam to a charge of money laundering, said Daniel Richman, a professor at Columbia Law School in New York and an ex-federal prosecutor. A laundering conviction may subject him to more time in prison, Richman said, adding that judges have wide latitude at sentencing. In his plea agreement, Kumar agreed to disclose his violations of laundering laws.
John Coffee, a securities law professor at Columbia Law School, talks with Bloomberg's Julie Hyman about a Bloomberg News report that the Federal Reserve Bank of New York, then led by U.S. Treasury Secretary Timothy Geithner, told American International Group Inc. to withhold payments to banks during the depths of the financial crisis
"Spitzer probably carried with him the same aggressive personality that served him well as AG, but didn't serve him well as governor," said John Coffee, a white-collar defense lawyer now a professor at Columbia Law School who has watched Spitzer's career.
Recent decades have brought a positive shift in thinking, but challenges still exist, UCLA and Columbia University legal scholar Kimberle Crenshaw says. "The real question is: How open is the pipeline? And does it go all the way up to the top?" she says. "Many companies that have good reputations for having great diversity programs still have difficulty in mentoring and creating opportunities so those folks who are at the middle actually make it all the way up to the penthouse."
Patrick Egan, a political scientist at New York University, and Nathaniel Persily, a law professor at Columbia University, who together have studied public opinion on gay rights, believe that in five years a majority of Americans will favor same-sex marriage—the result of generational replacement and what Persily calls “attitude adjustment.”
Matthew Waxman, a Columbia University law professor who served as an assistant defense secretary for detainee affairs in the Bush administration, said that Obama wouldn't be able to empty Guantanamo anytime soon. "The administration doesn't want to send detainees to Yemen, and it doesn't want to hold large numbers of them detention without trial … and yet it still says it plans to close Guantanamo quickly," Waxman said. "Something there has to give."
John Coffee, a Columbia University law professor, said many banks scrambled to repay government bailout funds before the end of 2009 to be free from limits on bonus payments. "There are some (executives) who did not receive bonuses they thought they were entitled to last year, and now want to be compensated" with larger bonuses, Coffee said. "The culture has not changed."
"They may have given up on the idea that this body would shape financial regulatory-reform legislation, because bills responding to the crisis could be completed by the time the commission issues its report," said Columbia Law School Professor John Coffee.
The inquiry panel has subpoena power, which observers say is critical to bring key government and banking officials to testify. Columbia University Law School Professor John Coffee argues that the 1932 Pecora inquiry was successful at generating ideas for Depression-era legislation because the panel had subpoena power and a strong prosecutor.
Jeffrey Fagan, a Columbia University law professor who has studied juvenile crime, said he thinks reform will come in stages, such as Illinois' new law, which addresses juveniles committing misdemeanors but not other crimes. “It’s easier to sell to the public and implement,” he said.
“It is the absence of the fee paid to reach others that is the defining feature of the Internet as an open speech platform, and as a kind of subsidy to non-profit or low-income speakers," writes [Tim] Wu, a professor at Columbia Law School. "That means a net neutrality rule may succeed in its speech goals to the extent it preserves the traditional ban on payola, whatever form such demands may take. Critically, payola schemes can be framed as fees for 'prioritized' service."
The national increase likely will not continue, and 2010 numbers are expected to decrease, according to a report by Ronald Mann, a Columbia Law School professor. “The recession-based peak is probably over,” Mann said in a telephone interview.
Columbia Law School Professor Harvey Goldschmid says the Obama administration’s proposals for regulatory reform still need a lot of work. In particular, he believes the proposals do not adequately address the need to consolidate the number of financial regulators.
Conrad Johnson, a Columbia law professor, said 89 percent of members of the American Bar Association are white. The lack of diversity has ramifications throughout society, because a huge percentage of elected officials and all judges in the United States are lawyers. Johnson blames the emphasis on scores from the law-school admissions test, and the important role those scores play in U.S. News & World Report college ratings, for crushing diversity.
Patricia Williams: The next battle of civil rights is going to be a technological one. It's going to be about DNA collection, it's going to be about surveillance and cameras. I think there's also going to be a push for the internationalization of the civil rights movement as well as for the diversification of the civil rights movement, which includes not simply the old black/white model but also the question of a variety of people of color, minorities including religious and ethnic minorities, linguistic minorities.”
John Coffee: Congress and the U.S. Supreme Court are on course for a legal train wreck over global class actions. In granting certiorari in late November to Morrison v. National Australia Bank, the Court seems intent on cutting back on the extraterritorial scope of the federal securities laws. Congress is, however, simultaneously rushing to do the reverse, as the House passed legislation two weeks later that has precisely the opposite effect.
John Coffee, a professor at Columbia University School of Law in New York, pointed to the dissolution of Lehman Brothers as a case study for the need for better solutions. “That litigation will go on for 10 years and make many lawyers very rich, but the problem won’t fully be resolved,” he said. That is because the problem is a cross-border one: How do you get New York and London to agree on the same course of action?
With Google's recent announcement that it might pull out of the Chinese market because of censorship and hacking attacks, other providers of Web content should take the opportunity to examine whether it's worth doing business in the country, said Tim Wu, a communications law professor at the Columbia Law School.
Since her departure, the office has shifted its focus away from the drug and organized-crime cases for which it was best known and toward white-collar crime and terrorism cases, said Daniel C. Richman, a former federal prosecutor who teaches criminal law at Columbia University. Still, Ms. Lynch’s background, he said, “certainly allows her to come to the job with a real familiarity with the office.”
Panelist Tim Wu raised the issue of internet neutrality, a hot debate in the United States as the nation’s Federal Communications Commission puts together a national broadband plan at the behest of Congress. “The FCC moving forward on net neutrality [an open, unfettered internet] is an effort by Google” and others to “have a free and open internet within the United States,” he said.
But Columbia Law School professor Tim Wu argues that Google's rejection of censorship may harm China more than Google in the long run. In a panel discussion on Wednesday about the Google-China conflict at the New America Foundation, Wu said that blocking Google could jeopardize China's standing in the World Trade Organization and hinder the development of China's information sector.
"It's the most major Supreme Court decision in the area of campaign finance in decades — and a significant First Amendment decision," says Nathaniel Persily, a political scientist and law professor at Columbia University. "We don’t know its practical impact yet, and I don't think it's the last word from the court," he said.
Nate Persily: Most critics of the decision will suggest that the Court, with this decision, opened the floodgates to unlimited corporate and union spending in next year's and subsequent federal elections. The truth is that this decision is the latest in a series of decisions (four, to be exact) from the Roberts Court knocking down campaign finance laws.
Reformers are outraged by the Supreme Court’s decision, which overruled its own precedent on independent corporate expenditures. As Nate Persily points out, as a practical matter the decision was just the last nail in the coffin; the Supreme Court had already substantially undermined the federal ban on independent corporate expenditures in earlier decisions.
Professor Nathaniel Persily of Columbia Law School noted that since Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. joined the Court it has consistently narrowed or struck down campaign regulations. The newest member, Justice Sonia Sotomayor, joined Justice Stevens' dissent, along with Justices Ruth Bader Ginsburg and Stephen Breyer.
John Coffee: Although the case for enhanced liability is strong, it is a mistake to impose negligence-based liability on the rating agencies, for three distinct reasons: First, it could easily bankrupt them. Second, it could lead them to withdraw from rating risky financial products. Indeed, if rating agencies were to cease to rate structured finance products, housing finance in the U.S. might remain paralyzed. Third, and most importantly, the appropriate legislative goal should be deterrence, not compensation.
"I tend to think the practical effect is not going to be as great as some people think, just because I don't think corporations actually are itching to spend that much on electioneering expenditures," said Columbia Law School professor Nathaniel Persily.
Suzanne B. Goldberg, a law professor at Columbia University and an expert on employment discrimination, said Judge Garaufis’s rejection of quotas was only a minor setback for the Vulcan Society. “The court says that hiring quotas are appropriate, but only in limited circumstances, and that they would provide only short-term relief here,” Ms. Goldberg said in a telephone interview.
"The replacement of O'Connor with Alito totally transformed this area," said Richard Briffault, a professor at Columbia Law School. He said that in the 10 years before Justice O'Connor's retirement, there were four cases that upheld campaign-finance regulations, and in the years since her retirement in 2006, there have been four cases that either struck down or narrowed campaign regulations that the court "clearly would have upheld had O'Connor been on the court."
"If the central idea here is that corporations are no different than anyone else, it's hard to say that you should maintain the ... ban on corporate contributions," said Richard Briffault, a campaign-finance specialist at Columbia University.
Columbia University Professor Nathaniel Persily, one of the nation's experts on election law, said the ruling means that corporations, for the purpose of election spending, basically have the same rights as individuals. But Persily and others said they doubted that corporations were eager to go down the road of pouring huge amounts of money into political campaigns. "I don't think corporations actually are itching to spend that much on electioneering expenditures," he said.
A review of the biggest corporate donors found that their stock prices were unaffected after they stopped giving to the parties. The results suggest that those companies did not lose their influence and may have been giving “because they were shaken down by politicians,” said Nathaniel Persily, a professor at Columbia Law School who has studied the law’s impact.
“If you cannot ban corporate spending on ads, how is it that you are allowed to ban corporate contributions to candidates?” asked Nathaniel Persily, a professor at Columbia Law School. “That is the next shoe to drop.”
Jan. 25 "Censorship can be understood as a trade barrier," said Tim Wu, a law professor at Columbia University who writes on the wider aspects of trade policy. Google essentially exports Internet services, one of America's most important high-tech products, Mr. Wu said. "If you can't reach Google.com, that is a trade barrier," he said.
Not so fast, says Richard Briffault, a professor at Columbia University's law school. "It's not clear that corporations will be spending a lot more," he says. "I don't think you're going to see most ordinary corporations taking out independent ads in which they are identifying themselves publicly as somebody coming out strongly for or against a particular candidate. That's kind of a risky strategy."
"We are seeing the world moving away from the global Internet to a series of national networks," warned Columbia Law School Professor Tim Wu at the New America Foundation on Wednesday. "When you're in China, you're basically on the Chinese Internet," Wu said at the forum. "It is a matter of choice how global or un-global the Internet is, and how interconnected it is."
Nathaniel Persily: In campaign finance, more than in any other area of constitutional law, the replacement of William Rehnquist and Sandra Day O'Connor with John Roberts and Samuel Alito has been deeply felt. The meaning of the First Amendment has been changing for the past few years, and the Roberts court's first revolution has taken place on the terrain of political money.
Professor Tim Wu of Columbia University first made the case in a 2006 paper that there may be good grounds under WTO law to challenge certain aspects of internet filtering. The argument has since gained currency.
Back in 2007 the U.S. Supreme Court decided a case known as Federal Election Commission v. Wisconsin Right to Life Inc. That case allowed corporations to run ads in the days and weeks before an election, as long as they didn't explicitly urge people to vote for or against a candidate, said Columbia Law School professor Nathaniel Persily.
According to [Kimberle] Crenshaw, the American society now is “not segregated, but not integrated either.” She said that segregation is on the rise again and pointed to America’s current public-school system where minority students still attend schools where the majority of students are minorities. Ultimately, Crenshaw pointed out that America is not past racism, but was in fact, “color blind.”
In-House Counsel Name Their Favorite IP Attorneys (no link available)
For Richard Lehv, a partner at Fross Zelnick Lehrman & Zissu PC, the factors that play into successfully relating to clients can be summarized in four words: communication, competence, confidence and caring. “Clients are looking for a strong, confident advocate that is willing to go to bat for them,” Lehv said. “At the same time, they also want to know their chances of winning, to have an accurate estimate of what it's going to cost, to stay informed about what's happening in the case and to be told what's expected of them as a client.
"You see a greater readiness of the government to resort to tried-and-true practices of organized crime cases in the white-collar setting," said Daniel Richman, a Columbia Law School professor and former federal prosecutor. "A ruling for the SEC would confirm the advantages the government sees."
Michael B. Gerrard, a professor at Columbia University law school and director of its Center for Climate Change Law, said the first efforts to sue tobacco companies had appeared to be weak as well. “They lost the first cases; they kept on trying new theories,” Mr. Gerrard said, “and eventually won big.”
SEC Backs Climate Change Guidance for Public Companies (no link available)
Michael B. Gerrard, senior counsel at Arnold & Porter LLP who also directs Columbia Law School's Center for Climate Change Law, said the SEC's interpretative release was a
significant first, but that many companies had seen this coming and had already begun to
disclose aspects of their climate risk. “This new guidance will make it part of the standard practice for all public companies that have such risks and should lead to more standardization of the disclosures,” Gerrard said.
"It's far-fetched," said Daniel Richman, a former federal prosecutor and a professor at Columbia Law School. "To move the trial to some ... inaccessible location would threaten to diminish much of the legitimacy and adherence to process that the government is seeking to obtain in this case."
But Nathaniel Persily, a professor of law and political science at Columbia University said the decision doesn't make any distinction between U.S.-chartered and overseas corporations, effectively opening the door to money from overseas. "The court decision itself liberated all corporations that were prevented from running ads in elections," Persily said. "So foreign corporations were prohibited beforehand, and just like all other corporations, they were liberated by this decision."
Workers rolled in extra rows of chairs to accommodate the crowd who came to hear guest speaker Patricia Williams, a Columbia University law professor, discuss the achievement gap. Williams said the achievement disparity people often focus on — between black students and white students — has little to do with the gap we should be worried about: between the U.S. students and the students of the industrial world. “We Americans don’t value education,” she told the crowd.
Addressing the achievement gap, [Patricia] Williams said focusing only on race as a cause is wrong. She cited figures that show many American students of all races are not performing at their level by 12th grade. Knowing how to educate children in the U.S. is only a part of solving the achievement gap, Williams said. The difficult part is getting the community at large engaged. "You hear black kids don't value education, but I think Americans don't value it like they should," Williams said.
Suzanne Goldberg, professor at Columbia Law School and director of the school's Center for Gender and Sexuality Law, said she believes the resistance should not be a deterrent to ending the policy. "While there are political obstacles, there is also tremendous support, both in Congress and outside, including among current members of the military and retired military leaders, for the repeal of don't ask don't tell,” she said.
Last August I noted that Columbia University law professor John Coffee, commenting on the U.S.- Swiss settlement of the UBS tax evasion scandal, said that in his opinion creating fear in U.S. taxpayers was always the goal of the negotiations between the Swiss and U.S. governments, that the court case brought in Miami against UBS was less about the bank than about instilling fear in all American taxpayers.
Tim Wu: [B]ig things have small beginnings, and it's a mistake to underestimate what YouTube and Google are doing here. It is true that Apple and Netflix, its rivals, have their own online rental services and currently offer much more product. But YouTube's service is more idealistic and more radical, aspiring not simply to succeed in the film industry as it is but to challenge its very structure.
Because there is no uniform federal regulation requiring companies to reduce their Greenhouse Gas emissions that is making it harder for a single market to evolve. “We’re seeing a shanty town of all these different regulators. This certainly is not good for the carbon markets,” said Professor Michael B. Gerrard, Director, Center for Climate Change Law, Columbia Law School, speaking at the conference in New York City.
"The Supreme Court said explicitly in Citizens United that access is not corruption, and that's a major move," said Nathaniel Persily, a professor at Columbia Law School. "The Citizens United opinion is not simply about corporations. It erects a new philosophy to deal with campaign finance."
Judges, however, sometimes bend over backwards for parents, even those in prison, said Suzanne B. Goldberg, a professor of family law at Columbia Law School in New York City. “It seems hard to fathom, but family law typically puts a priority on maintaining parent-child relationships, even when parents have violated the law, even when parents have harmed their children,’’ Goldberg said.
Last January, Matthew Waxman of Columbia Law School wrote an opinion piece in Foreign Policy magazine with the headline, "Closing Guantanamo Is Way Harder Than You Think." Waxman handled detainee affairs for the Pentagon under President Bush, and a year into the Obama presidency, his assessment in Foreign Policy seems prescient.
Kent Greenawalt, a professor at Columbia Law School, waxed eloquent about the First Amendment, explaining to the audience the legal facets of hate speech, blasphemy, workplace harassment and the breach of peace statute. “The bottom line is that although America is one of the most tolerant nations when it comes to blasphemy, it is also one of the most protective of its citizens’ right to safety and security,” he explained.
Cuomo's use of the Martin Act could be problematic for Lewis and Price. Unlike federal securities law, the Martin Act doesn't require proving any intent to defraud shareholders, said John C. Coffee, a Columbia Law School professor specializing in corporate governance and securities law. "You merely have to show that these individuals were responsible for materially false disclosures made to investors," Coffee said. "It's somewhat more threatening" than federal law.
"In the wake of the financial crisis, we have not had many litigated outcomes," said John Coffee, a Columbia University law professor. "This is one of the few enforcement cases that really go to the behavior of these individuals and firms during the financial meltdown."
[John] Coffee said the difference between the new settlement and the one Judge Rakoff rejected in September was not that the bank was paying more money since "that money is still being paid by shareholders to shareholders." The difference might be that the judge's concern about "accountability will now be addressed by someone else"—the state's attorney general.
John Coffee, a Columbia University law professor and securities law expert, said he could not recall a similar case in which one government regulator agreed to a settlement while another filed charges. If Cuomo wins his case against Lewis or Price, "that would suggest the SEC fell short, that they were not sufficiently aggressive," Coffee said.
Columbia Law School Professor John C. Coffee said it’s “unprecedented’’ for Cuomo to sue Bank of America and two key executives, when the bank has already reached a settlement with the SEC. ’’This is an implied statement that the SEC has not done enough,’’ said Coffee, director of Columbia’s Center on Corporate Governance.