Jan. 28-Feb. 4


NPR—Jan. 29
"Closing Guantanamo has turned out to be much more complicated than the administration thought it would be," said Matthew Waxman, a law professor at Columbia University who advised the Bush administration on Guantanamo. "It was easier to campaign on. And now they realize there are some really bad individuals down there that no one knows how to deal with."
Now that Republicans have taken control of the House of Representatives, a leading expert on climate change law is not optimistic about the prospects for meaningful climate legislation in the next two years. “The best we can hope for from this Congress is some energy legislation that would encourage renewable energy and efficiency”—and even that isn’t a sure thing, says Michael Gerrard (CC’72), director of Columbia Law School’s Center for Climate Change Law.
Ronald Mann, a law professor at Columbia who has researched bankruptcy issues for about 10 years and has tracked the nation’s monthly personal bankruptcy rates for several years, said he has seen a troubling trend develop in the Southeast recently. It has some of the nation’s highest bankruptcy rates, particularly in its smaller communities.
Robert Jackson Jr., associate professor of law at Columbia Law School and a corporate governance expert, said that over time the definition of "for cause" has become very narrow. Usually cause will only be found in the event of crime or fraud against the company, said Jackson.
FORBES—Jan. 31
[Irving] Picard need not show any bad faith or malicious intent, just that Wilpon bailed out of his Madoff fund because he sensed trouble, explains Columbia Law School professor John Coffee. “They must prove that a reasonable person should have been suspicious,” says Coffee.
"One thing I found interesting is that the company has taken a couple of very progressive corporate governance steps," said Robert Jackson Jr., associate professor of law at Columbia Law School and a corporate governance expert. Pall has decided that moving forward it will separate the roles of CEO and chairman of the board. "They see that there is some governance concern," said Jackson. The company has made it clear that there will now be separation between the new CEO and the board, he said.
ABC NEWS (Australia)—Feb. 1
There's been less publicity for legislation in the USA which has the potential to lock Americans out of the web. It goes by the name of the Protecting Cyberspace as a National Asset Act. But Internet activists are calling it The Kill Switch. Tim Wu is an expert on internet control. He spoke on this programme last year about his book The Master Switch. “It is an effort by the United States Congress supposedly to prepare the United States for cyber war. They're going to set up a new organisation that identifies what are called critical infrastructure and then allow the president to declare a state of cyber emergency, which is something new, and then should that happen, allow critical infrastructure to be cut off from the internet.”
A similar video interview appeared on the websites of the Sydney Morning Herald and The Age (Melbourne).
Columbia Law School Professor Gillian Metzger said Judge Vinson’s decision declaring the entire Affordable Care Act unconstitutional represents "a remarkable assertion of judicial power fundamentally at odds with Supreme Court precedent." "The combination of Judge Vinson’s substantive and remedial rulings is a decision that displays marked hostility to effective congressional regulation," Metzger said.
A similar item appeared on the Wall Street Journal Law Blog.
Another middle-ground approach, raised by some Democrats at the hearing, would add a VAT while eliminating income taxes for most Americans, and retaining the income tax on high earners. Such a plan has been outlined by Michael Graetz of Columbia University Law School.
"It creates a strong argument for 'treat us the same way you treat this guy'," said Michael Gerrard, an environmental law professor at Columbia University and former chair of the American Bar Association's environmental section, who reviewed the document. Gerrard said the move "is part of the administration's effort not to stop or be accused of stopping too many new projects."
To say that [Tim] Wu has written a history of the information age is sort of like saying that Howard Zinn wrote a history of the United States. Wu is a young scholar but the first line of his obituary is already written: a few years back he coined the term "Net neutrality," then got the FCC to embrace it. In The Master Switch, he explains why it is necessary to keep information pipelines from being controlled by unrestrained corporations, wielding the weight of history to back him up.
Gender, race, class, and other dimensions of identity are inherently related and intertwined, thereby contributing to systematic social injustice, said UCLA and Columbia Law School Professor Kimberlé W. Crenshaw at the second of a three-part lecture series on race.
Even if citizen plans don't prove popular with legislators, they could find a more receptive audience in court. When state lawmakers fail to draw legal maps, courts have asked scholars such as Columbia University Law Professor Nathaniel Persily to step in to devise a plan. With citizen redistricting taking off this cycle, Persily says that might not be necessary. He has his students drawing district maps using Caliper software and writing legal papers defending them. He doesn’t see this as merely an academic exercise. “For states that fail to craft redistricting plans,” Persily says, “there will be ready-made redistricting.”


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Feb. 4-11

Robert Jackson, a Columbia University law professor, said in an interview earlier this week that despite what some banks have done on their own, the rule will set a standard for others to follow who may not be making efforts on their own to tamp down excessive risk taking.
On the other hand, the court’s reputation has been remarkably resilient after closely divided decisions that were highly controversial. “The Supreme Court has a deep reservoir of good will with the American people,” says Nathaniel Persily, a law professor and political scientist at Columbia University and an editor of “Public Opinion and Constitutional Controversy.” “The public’s attitudes toward the court have very little to do with individual decisions.”
Drop the Case against Assange
Tim Wu: The WikiLeaks case endangers the reputation of the United States as a defender of free speech and an open Internet globally, while forcing the Obama administration to take uncomfortable constitutional positions better suited to the Nixon administration.  The importance of this issue is hard to overstate:  At a time when the Internet is increasingly recognized as a medium of global resistance to authoritarian rule and when protestors in Tahrir square are holding up signs that say "Thank you, Facebook!", the Obama administration and the United States must make sure that they stand on the right side.
Columbia Law School professor Gillian Metzger said it seemed "premature" for state officials such as those in Florida, Idaho, Utah and Wisconsin to declare the reform law dead based on one decision from a trial court in the Northern District of Florida. "That's not a very strong basis on which to risk falling behind on implementation. If implementation were an easy thing to do, it wouldn't matter so much. But implementation is really complicated," Metzger said. "There is a serious consequence if you guess wrong and don't make moves for implementation here."
Philip Hamburger: Waivers can be used for good purposes. But since the time of Matthew Paris, they have been recognized as a power above the law — a power used by government to co-opt powerful constituencies by freeing them from the law. Like old English kings, the current administration is claiming such a power to decide that some people do not have to follow the law. This is dangerous, above the law, and unauthorized by the Constitution.
A similar article appeared on
Columbia Law School professor Tim Wu, an influential academic and author who popularized the term "net neutrality," has been appointed senior advisor to the Federal Trade Commission. Mr. Wu, 38, will start his new position on Feb. 14 in the FTC's Office of Policy Planning, and will help the agency to develop policies that affect the Internet and the market for mobile communications and services. The FTC said Mr. Wu will work in the unit until July 31.
Hedging Company Stock (Letter to the Editor)
David Schizer:
Re “Stock-Hedging Lets Bankers Skirt Efforts to Overhaul Pay” (front page, Feb. 6): Employees of financial institutions should be required to hold their employer’s stock. This gives employees added incentive to protect the financial health of their employer. Yet it is not necessary for employees to hold all of their stock forever, or to have all of their wealth in the form of their employer’s stock. Over time, they can — and should — be allowed to sell some stock, as long as they keep enough. And if they are allowed to sell particular shares, then they should also be allowed to hedge them.

GLOBE AND MAIL (Toronto)—Feb. 9
Tim Wu: It’s also odd, as the Internet gets faster, to hear Bell Canada complain about “congestion” as if it were 1999. I suppose there are strange things done under the midnight sun, and the instinct of Stephen Harper and his cabinet to pay some attention to the issue righteous. For hidden in the complexity of billing policy is part of a larger movement to change some of what we take for granted about the Internet. And it’s starting in Canada.
Prof. Michael Graetz talks about ways to simplify the tax code, including lowering corporate taxes, eliminating income tax on earnings under $100,000, and instituting a national sales tax.
Richard Briffault, a Columbia University law professor, said it's common for public servants to fail to recognize certain perks as benefits requiring documentation. "He probably should have reported it," said Briffault, who was a consultant to the commission that created the conflicts board in 1989.
David M. Schizer, dean of the Columbia Law School and the Lucy G. Moses Professor of Law, believes the rigorous style of thinking that lawyers learn is valuable to leaders in all contexts. And lawyers today need specific skills that business schools teach well, such as quantitative analysis and teamwork, he added.
A similar article appeared on US News.

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Feb. 11-18

The rise of the expert network firm was to some degree a counter-reaction to an SEC effort to stamp out insider trading more than a decade ago, said John C. Coffee Jr., a professor a Columbia Law School. Years ago, top corporate executives would share information about upcoming earnings reports with favored Wall Street analysts, who could use the information to the advantage of their investment firms and clients, Coffee said. In 2000, the SEC banned companies from selectively divulging significant information by adopting a rule called Reg FD, for "Fair Disclosure."
"I think the age of the deeply competitive internet is over," says author and telecommunications lawyer, Tim Wu. "The next five years is going to be a story of the big four or big five."
A similar article appeared in Concurring Opinions.
Ronald Mann: The central advantage of behavioral economics for those seeking to justify regulatory intervention is the premise that individuals make mistakes all the time: It is much easier to justify intervention to protect individuals from "errors" that behavioral analysis says happen all the time than it is to protect individuals from the adverse effects of decisions thought to be fully rational. So, policymakers trying to rein in consumer lenders naturally turn to behavioral finance as a way to justify constraints in consumer finance markets.
Columbia University law professor Nathaniel Persily has enlisted his classes of students to draw proposed maps, using widely available software. Journalists can use state freedom of information laws to pry open doors of secrecy. Recognizable communities should insist on representation.
As the town of Litchfield works toward voting on its laws to govern wind-power projects and the town of New Hartford begins looking into the issue, some potential help could be blowing their way. The Center for Climate Change Law at Columbia Law School announced Tuesday that it drafted a model ordinance that municipalities in the state can use to regulate wind projects.
A similar article appeared in the Watertown Daily Times and Midwest Energy News.
On Tuesday afternoon, as Secretary of State Hillary Rodham Clinton spoke in Washington about the Internet and human liberty, a Columbia law professor in Manhattan, Eben Moglen, was putting together a shopping list to rebuild the Internet — this time, without governments and big companies able to watch every twitch of our fingers.
Theodore M. Shaw, a professor at Columbia Law School and the former director-counsel of the NAACP Legal Defense and Educational Fund, said, “The culture of our country is that these shows do produce an audience.” He added: “It’s not just a question of whether someone is sentenced to prison, but the inviolate right to prosecute these cases. It’s a kind of truth and reconciliation.”
TIME (The Curious Capitalist Blog)—Feb. 16
Second, John Coffee, a law professor at Columbia University who has followed the Madoff case and has looked at Picard's complaints against JP Morgan and others, says it doesn't appear that Madoff has provided a smoking gun to Picard in either the case against JP Morgan or the Mets' Wilpon. In fact, in the Wilpon instance, Madoff may actually hurt Picard's case against the Mets owner and his business partner Saul Katz. He repeatedly told the Times that Wilpon and Katz knew nothing.
A similar story appeared on the CBS Evening News and in Bloomberg BusinessWeek.
NEW YORK TIMES (Room for Debate blog)—Feb. 17
Jamal Greene: [M]any of the reasons for oral arguments assume that the justices are either keen to persuade others of their views or are open to persuasion themselves. There is little evidence that Justice Thomas fits this description. He is a judicial iconoclast, opposed to following constitutional precedents with which he disagrees and unwilling to moderate his positions to achieve consensus. He is the court’s most frequent lone dissenter, and to assign an important majority opinion to him is to risk losing your majority because of his uncompromising language.
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Feb. 18-25


Columbia University law professor John Coffee said mortgage cases like Mozilo's were muddied by the numerous parties involved, unlike Enron and other "cook the books" cases in which executives were convicted. Countrywide's model was to make or buy mortgages only to sell them off immediately to Fannie Mae or Wall Street as fodder for securities. Given that model, Coffee said, blame could be assigned to an entire chain of players: mortgage brokers who falsified applications; investment bankers who concocted complex and "opaque" mortgage bonds; rating firms that provided high ratings on the bonds but said they were lied to; and institutional investors that relied on dubious ratings because the securities carried above-market interest while promising to be risk-free.
The U.S. Supreme Court is slated to hear Wednesday arguments in a patent case that Columbia Law School Prof. Eben Moglen, one of the most prominent voices in the free software movement, says would chill innovation and impede progress. At issue in the case, Global Tech Appliances v. SEB, is the interpretation of a provision of patent law that allows a patent holder to sue anyone who actively induces infringement. The court will examine whether that standard can be applied to a person who recklessly disregarded the risk of infringement, or only to someone who intends to encourage infringement.
"Could he describe a meeting where banks caught him red handed and still acquiesced in his conduct?" Columbia University law professor John Coffee asked. If he could have, surely he would have, and surely we'd have read about it in the Times. Nowhere in 45 column inches does gun smoke waft.
NPR—Feb. 22
Columbia Law School professor Jamal Greene contends that while other justices at oral argument are "trying to figure out how to fit" the case before them into a complex set of previous decisions, that task is frequently unimportant to Thomas.
John C. Coffee Jr., a professor at Columbia University law school and an expert on class actions, says the questions before the high court are of enormous significance to the future of employment discrimination-based class actions. "The real issue is whether the justices are going to rein in this case in a way that plaintiffs can live with, or make it a game-ender," says Coffee, who is not involved on either side.
The EPA lawsuit, with dozens of co-plaintiffs and the full force of the federal government opposing it, is expected to result in a highly complex court battle potentially spanning several years — a prospect Cuccinelli appears to relish. A wide range of legal experts said the suit had a low chance of success. “It’s the legal equivalent of the ‘Hail Mary’ pass,” said Michael B. Gerrard, a professor at Columbia Law School and an authority on climate change law.
"There are very few men in this city who…have truly founded a law firm. Marty Lipton, Joe Flom, maybe David Boies," said John C. Coffee Jr., a professor at Columbia Law School. He said that Mr. Flom was primarily responsible for making Skadden the giant it is today.
"This major turn should be a final nail in the coffin for the different treatment of gay and non-gay people by the federal government." - Law professor Suzanne Goldberg, director of Columbia University's Center for Gender and Sexuality Law after President Barack Obama ordered his administration to stop defending the constitutionality of a federal law that bans recognition of gay marriage.
Depending on the specifics, the conversation could possibly rise to the level of conspiring to lie to federal officials, a federal crime, but prosecutors rarely pursue such cases, said Daniel C. Richman, a Columbia University law professor and former federal prosecutor. “In the scheme of things there are other priorities, and these are not necessarily easy cases to make,” Mr. Richman said.

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