July 2-16


"The parents remain responsible for their children after arrest," says Professor Jane Spinak, a Columbia University professor and founder of their Child Advocacy Clinic. "Even if they are convicted and incarcerated, they are still responsible for making decisions about their child’s lives. Unless they are proven unfit parents, in which case the state can intervene, through child protective services. But if they are not unfit parents...they can decide to give temporary custody to a relative or a friend someone who they trust to take care of the children."
Prof. Jane Spinak: “Parents absolutely have a say. They don’t lose their parental rights because they’ve been arrested. When that doesn’t happen is when the state has determined that the children are in an unhealthy or an unsafe environment. So in a child protective proceeding, for example, the state is going to intervene and remove the children. But an arrest in and of itself doesn’t make a parent unfit to make decisions about their children.”
I attended Professor Eben Moglen’s lecture in Edinburgh, he is presenting here for the second time in two years. Here are some notes. Defining the problem: Software is everywhere, it’s in cars, hospitals, in buildings, and in all other sort of devices. “There is software in the things that power people’s hearts”, there are no requirements on the type of software that goes into those devices. All of these software solutions sometimes fail because the software has been acquired from providers with indemnities, or acquire it unlawfully. Providers do not have requirements to disclose the provenance of software.
LINUX.COM—July 7                                                          
I talked to [Eben] Moglen just prior to the Bilski vs. Kappos ruling and asked him what the most pressing issue was for software development from a legal perspective. He told me that regardless of the outcome of the Bilski case, the issues between free software and the patent system "remain the most legally complex and strategically challenging part of the landscape." But he contends that the free software community has demonstrated how copyright law that encourages sharing works and pointed to Creative Commons as an example.
“There’s certainly a rise in scrutiny of investment done by State-owned enterprises or institutions, particularly those from China,” said Karl Sauvant, executive director of Vale Columbia Center on Sustainable International Investment and an expert in foreign direct investment (FDI) issues. Sauvant said any Chinese firm making an acquisition move with a US company has to be aware there’s a “very strong” regulatory framework in the US to look into that. And it is more of a challenge to Chinese companies because they have little experience in overseas markets, he said.
BERGEN RECORD (New Jersey)—July 9
What concerns some legal scholars is an issue that seems far removed from the complexity of corporate takeovers and private wealth. Could the Perelman-Cohen case change our basic notion of will-writing? If Perelman succeeds in his appeal, the Cohens fear that a precedent-setting legal guidepost will be established for the way families in New Jersey draw up wills for even the smallest of estates and perhaps challenge them later — even if the person writing the will is still alive but possibly incapacitated in some way, or impaired. "I think it's extremely unusual," Columbia University law professor Barbara Aronstein Black said of the possibility of successfully challenging a will before someone dies.
The heirs to co-creator and artist Joe Shuster, Siegel's partner, are seeking to reclaim their share of the copyright as of 2013, and if they do, that could give the two families a big say in the Man of Steel. Aside from a radically re-altered version of Superman, one side may have a tough time exploiting the character without the cooperation of the other. As Columbia Law School professor Jane C. Ginsburg puts it, "What this really means is that Warner Bros. and the heirs can stymie each other."
Q NOTES—July 10
Last month, students in Columbia Law School’s Sexuality and Gender Law Clinic won asylum for a gay man who feared persecution because of his sexual orientation if forced to return to his native Uzbekistan. The grant, issued by the U.S. Department of Homeland Security, comes at a time when gay people in Uzbekistan face serious threats, both from police and the surrounding community.
Over the past 20 years, said Daniel Richman, a professor at Columbia Law School and a former federal prosecutor, the Justice Department "as a regular matter" has performed its own investigations of police-abuse cases "that the state has…pursued, but resulted in something less than a maximum verdict." Mr. Richman said that many, and perhaps most, of the federal investigations of police cases that have already been tried in state court don't result in new prosecutions.
THE DAILY KOS (via Wall Street Journal)—July 11
Thanks to the Republican effort to euthanize the estate tax, the Treasury is being emptied of billions while creating chaos for thousands of families across the country.  As tax law professor Michael Graetz of Columbia University  put it, "Enough very wealthy people have died whose estates have the means to challenge a retroactive tax, and that could tie the issue up in the courts for years."  
Victor P. Goldberg, who teaches contracts at Columbia University's Law School, said the Facebook contract lawsuit may get tripped up by the statute of limitations, which is six years in New York. He also said the contract itself was unusual, because it doesn't stipulate what else Mr. Zuckerberg would have gotten from Mr. Ceglia aside from $1,000.
Matthew Waxman, a former Bush administration official in the State Department and Pentagon, said he expected similar claims to be raised by other Guantanamo defendants who are moved into civilian courts. "If this ruling is an indication of how courts will view those claims, however, it suggests they are willing to give the government latitude," said Waxman, now a professor at Columbia Law School. "That latitude may be especially important as the government considers its options for KSM and the 9/11 conspirators and its options for closing Guantanamo."
Thomas Friedman: No, everything the Russians should want from us is everything they don’t have to steal. It is also everything we should be celebrating and preserving but lately have not: open immigration, educational excellence, a culture of innovation and a financial system designed to promote creative destruction, not “destructive creation,” as the economist Jagdish Bhagwati called it.
NPR (All Things Considered)—July 14
Even if you're not calling for armed insurrection, invoking the sacred text of the Constitution gives a political argument more authority, says Columbia University law professor Nate Persily. "When you start phrasing your objections in constitutional terms, you are lodging sort of the biggest weapon that we have in American political discourse," he says. Persily has just completed a poll of Tea Party supporters, and he says while their constitutional arguments may sound abstract, they are grounded in something visceral.
"It's a very large bounty," said John Coffee, professor of law at Columbia Law School. "It can more than offset the danger of being fired from a job." In addition, the act allows whistleblowers to bring a private cause of action in federal court for double back pay, reinstatement with appropriate seniority, and attorney and expert fees.
 "It is very hard to see how anybody could buy the company without his (participation)," said John Coffee, a securities law
expert. Nevertheless, Coffee said, Playboy's board does have a fiduciary duty to all shareholders, not just Hefner, to consider any competing bids for Playboy stock. For that reason, the company has said it will form a special committee of independent directors to evaluate options.
John Coffee: There's very little in this financial reform bill that changes the accounting or disclosures. And there, they have regularly engaged in this short-term gaming of the financial statements by correcting things on the last day of the quarter and that simply blinds investors to the truth.
"It is a major victory for the SEC because you don't find other settlements in which the defendant admits it made materially misleading disclosure," said John Coffee, a Columbia University securities-law professor. "This is one where they really bet the farm on this case by taking on the most esteemed firm on Wall Street, and they obtained a concession by Goldman that they misled their clients."
"It's a major vindication for the SEC," says Columbia Law School professor John Coffee. "I'm sure (Goldman) had to be dragged kicking and screaming" to admit that it had failed to come clean with investors.
Daniel Richman: "It would be strange after reaching some sort of settlement with Goldman as a regulatory matter, the SEC turned around and worked with the U.S. Attorney's office on a criminal case." "It regularly is the case that a civil settlement of this sort allows a company to move forward without looking over its shoulder."

Though the fine won't make much of a dent in Goldman's finances, the settlement will have sweeping legal implications for future securities fraud cases, said John Coffee, a securities law professor at Columbia University. "Even if the penalty was lower than the market expected, the fact that Goldman admitted that it made misleading and incomplete disclosures to its clients vindicates the SEC's legal theory for the future," Coffee said. "You have to understand that the defendant almost never makes such a concession in SEC settlements."
JOHN COFFEE, professor of securities law, Columbia University Law School: “Every settlement is a compromise, and both sides have to give in at an intermediate position. I think the SEC got what they most needed. The SEC chose here to vindicate a principle more than to maximize the penalty. And that was sound.”
 Columbia Law School professor Eben Moglen heads the Software Freedom Law Center (SFLC) and wrote the group's amicus brief in Kappos v. Bilski. Moglen's position on the subject of software patents—that they should be banned—is, to say the least, outside the mainstream in legal circles. Moglen's critique of the patent system extends well beyond the software issues he writes about, however. He suggests, for instance, that the 20-year monopoly granted by a patent is the product of a bygone era.



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July 16-23


Harvey Goldschmid, a member of Finra's board of governors since 2007 and a former SEC commissioner, said examining advisers is a natural progression for Finra. “It will make sense to have a fiduciary standard for broker-dealers, and it makes sense for there to be a self-regulatory structure for investment advisers,” said Mr. Goldschmid, who is a professor at Columbia Law School. “The resources of a self-regulatory organization can be of enormous help to the SEC.”
“They have won against the most powerful adversary on Wall Street,” says John Coffee, a professor at Columbia Law School. “They see this as a vindication of the principle that you have to make [adequate] disclosures. They now consider this a precedent.” This observation suggests the likelihood of further cases depended on narrow legal considerations.
While few doubt the quality and range of advocacy offered by the legal septet, some argue that this strength could turn into a weakness if BP does not manage it well. John Coffee, professor at Columbia Law School, said: “Its defense counsels are an all-star team but that can pose problems and invite ego conflicts unless one lawyer is clearly in charge.”
Some U.S. legal experts were surprised that bail was granted given the serious weight the U.S. justice system places on obstruction charges and convictions. "It surprised me; I wouldn't have predicted that," said John Coffee, a professor of law at Columbia University in New York. "It certainly suggests that the seventh circuit (court of appeals) thinks there's some reason why the sentence on the obstruction charge would necessarily preclude his release."
Calling sexual orientation a status may not require the conclusion that being gay is immutable rather than a choice, but it certainly suggests it. There was something broader going on, too, said Suzanne B. Goldberg, a law professor at Columbia. “The court is talking about gay people, not homosexuals, and about people who have a social identity rather than a class of people who engage in particular sex acts,” Professor Goldberg said.
James Tierney, a former Maine attorney general and the director of the National State Attorneys General Program at Columbia University, says it should come as no surprise that candidates emphasize the positions they take, particularly when they align with popular opinion in a way that might help them win elections. But Tierney cautions against reading much into their positions on national issues such as immigration and health care. “The overwhelming issue in every election is going to be jobs and the state budget,” Tierney says. “It could be that an entire attorney general’s record is irrelevant to their campaign for governor.”
Jagdish Bhagwati: “[L]ack of trade activism has also meant that we are not moving forward with trade liberalization. The long-standing Doha Round of multilateral trade negotiations seems to have been put on indefinite hold. That governments did not break out into protectionism after the global financial crisis hit surprised many. In retrospect, it is easy to see why. Policy is driven by three “I’s”: ideas, institutions, and interests (i.e., lobbies). On all three dimensions, protectionist policy was hemmed in.”
NEW YORK TIMES (Deal Book)—July 21
First, there is a problem that Prof. Jeff Gordon at Columbia Law School has highlighted with the entire resolution process. Placing a company into the resolution process may itself scare the entire market and throw the financial system into panic. This may be addressed in part by only putting the main part of A.I.G. and its subsidiary AIG Financial Products (the division that wrote the derivatives that destroyed A.I.G.) into receivership, leaving the main insurance companies out of the process. But still, this would be an undeniable blow to market confidence.
John C. Coffee Jr., a professor at the Columbia Law School, called the heated language of the letters “posturing.” Professor Coffee noted that the case was likely to end in private arbitration, and that the penalty for Anadarko and MOEX not paying was that they would probably forfeit their interest in the well — “which all now recognize has liabilities that dwarf their revenues.”
The excellent book Death by a Thousand Cuts, by Michael Graetz and Ian Shapiro, describes how a tax that falls on the slimmest minority of Americans was set on the path to extinction in 2001. Legislation called for the tax to decline to the point where it disappeared entirely in 2010. Then it would bounce back to its pre-2001 level in 2011.


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July 23-30

“Once the SEC took on the most powerful player on Wall Street, Goldman Sachs, it follows that” both the SEC and Finra “would seek to take similar positions in similar cases,” John Coffee, a securities law professor at Columbia University in New York, said in a telephone interview yesterday.
Long before he became [University of Rochester President], Joel Seligman emerged as a leading authority on financial regulation. He is co-author of the 11-volume Securities Regulation as well as a definitive history of the Securities and Exchange Commission. "He is one of the giant scholars in the securities area," said Columbia University law professor Harvey Goldschmid.
While legislation stalls in Congress, a series of judicial decisions and ongoing litigation in the courts is shaping the potential liability for greenhouse gas emissions.  To learn more about what is happening in the courts and what it might mean for climate change, Big Think spoke with Michael Gerrard, Director of Columbia Law School's Center for Climate Change Law. “I count a total of about 250 lawsuits and administrative cases on file aiming to reduce greenhouse gases or otherwise litigate climate related issues,” said Gerrard.
This lack of disclosure is unconscionable, says Harvey Goldschmid, a commissioner of the U.S. Securities and Exchange Commission from 2002 to 2005. “I can’t imagine why bank regulators haven’t been requiring a prominent ‘no FDIC insurance’ disclosure,” says Goldschmid, who’s now a law professor at Columbia University in New York. “This system works very badly for the bereaved. It takes unfair advantage of people at their time of weakness.”
John Coffee, a securities law expert at Columbia Law School, said executives asking underlings to employ someone to whom he or she is romantically linked is not uncommon in the business world. In Redstone's case, he sees the issue of finding a job for a friend as being of less concern than pushing the Electric Barbarellas show. If the band lacks talent, as MTV executives believe, demanding that the network pursue a show appears to be "a real waste of corporate funds," Coffee said.
THE DEAL—July 28
Columbia Law School associate professor Robert Jackson Jr., who assisted pay czar Kenneth Feinberg with an examination into pay practices at financial institutions that received TARP funding, discusses why he thinks certain executive compensation models contributed to the financial collapse.
WCBS-TV—July 29
"What the court says is this goes too far in invading the federal government's control over immigration policy," said Richard Briffault, Columbia University constitutional expert.
Harold Edgar, a Columbia University law professor who has written extensively about the Espionage Act, said that it would be “really, really tough to claim that a foreigner has an obligation to obey U.S. law” in circumstances in which the foreigner received information from another person outside the United States. Wikileaks and Mr. Assange could also challenge any such prosecution on First Amendment and due-process grounds, he said. “These are extremely difficult questions,” Mr. Edgar said. “There is a minefield of issues, none of which have been addressed by the Supreme Court.”
Among prosecutors and former prosecutors, the comments in Ms. Kaye’s report seemed to cloud the report’s ability to quiet the controversy surrounding Mr. Paterson’s role in the domestic violence case against his suspended aide, David W. Johnson. “She is at least implicitly, if not explicitly, stating that there is going to be uncertainty about her findings because of the possibility the investigation could have been affected by leaks,” said Daniel C. Richman, a former prosecutor who is a law professor at Columbia.
Citigroup spokesman Jon Diat said the bank was pleased that it had reached an agreement with the SEC. Former Chief Financial Officer Gary Crittenden, who left the bank n 2009, agreed to pay $100,000 under the settlement. "This is the highest-ranking corporate officer to be yet named in the still-continuing investigation of the 2008-2009 crisis," said John Coffee, law professor at Columbia.


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