Eben Moglen: Now, the vast interconnection of humanity we call the Internet promises to divorce the press and power forever, by dissolving the press. Now, every mobile phone, every document scanner, every camera, every laptop, are part of an immense network in which everything we see, we think, we know, can be transmitted to everyone else, everywhere, immediately. Democracy in its deepest sense follows. Ignorance ceases to be the inevitable lot of the vast majority of humanity.
Columbia Law professor Timothy Wu is ready to enter the government "jungle," two weeks after announcing that he will serve as a senior advisor to the Federal Trade Commission. Wu, who coined the phrase “net neutrality,” will be taking a leave of absence for six months to advise the commission on legal problems related to privacy, competition, and consumer protection. “If scientists have laboratories where they figure out the facts, for us in legal academia, that’s the government. It’s going into the jungle,” he said.
But Daniel Richman, a former prosecutor who teaches criminal law at Columbia, said there was an interest in ensuring the integrity of the jury process. “The government has to walk a fine First Amendment line bringing these charges,” he said, “but lawless jury behavior is certainly of concern to it, too.”
The Columbia Journal of Race and Law will publish comprehensive articles written by scholars, lawmakers, experts and students that dissect issues such as affirmative action, immigration, environmental justice and voting rights. Its editor-in-chief, third-year law student and former NAACP Legal Defense Fund intern Sheila Adams, said in a release that high profile incidents including Arizona’s immigration law and the disproportionate impact of the financial and foreclosure calamities on minorities disprove theories that President Obama’s election ushered in a “post-racial” society.
GOP Continues Assault on Regulation (subscription required)
Peter Strauss, professor of law at Columbia Law School, had four recommendations to improve the APA. Strauss said the notice requirements of the act should make explicit that agencies give the public access to the technical data on which the might rely. Second agencies should be required to place in the record all documents “of relevance to the rulemaking proceeding,” he said.
“International prosecutions can sometimes carry risks, such as causing brutal dictators to entrench rather than step down and face justice,” said Matthew Waxman, professor at Columbia Law School and fellow at the U.S. Council on Foreign Relations. “However, (they) can also help isolate perpetrators... hastening their demise while also laying the foundation for longer term stability and serving broader interests in justice and deterrence.”
"Private equity is well-known for closely tying pay to performance across the top of the house," said Robert Jackson Jr., associate professor of law at Columbia Law School and a corporate governance expert. "So it is no surprise that a lawyer at this level is capable of earning amounts like these in a strong year," he said.
Kendall Thomas, constitutional law expert at Columbia Law School, said the court's decision was a loss for private citizens. "This victory for Phelps came at the cost of thousands of Americans who would be subject to the behavior of the likes of the Westboro Baptist Church during a time when they are at their most vulnerable,” Thomas said. “The court could have shown a greater sensitivity than it does for that harm."
What the media will look like in five years and which companies will dominate was anybody's guess, but Tim Wu, a professor at Columbia Law School, had a good stab. He said consolidation was inevitable and could well mirror that of the film and telecommunications industries. For example, he said, in 1910 there were 10,000 telephone companies in the US but within the next decade it was a monopoly. ''Whether it will be one company or five end up being in charge is the big question,'' he said.
Patricia Williams: Reprehensible as it is, Westboro’s rhetoric has an oddly unifying emotional power. Indeed, the family’s harangues are so awful that the vast majority of us can shake our heads in easy dismay. As a baseline for political dissent, therefore, Westboro allows us to forget that the First Amendment really anticipates a kind of dissent that is more deeply challenging, a test not only of individual conscience and resonance of feeling, but also of the government’s commitment to the democratic ideal of suffering — really suffering — disagreement.
Suzanne Goldberg: The Constitution does not protect obscene speech, but that's different from profane speech, and there is no one legal definition of profane. I would certainly think in either event that it would be difficult, if not impossible, to treat Westboro's speech as profane in a sense that you could block its use legally.
Matthew Waxman, a Columbia law professor who was the first deputy assistant secretary of Defense for detainee affairs in 2004-05, said that the government probably won’t close or substantially alter Guantanamo in the near term. He noted that the Supreme Court decision giving detainees the right to challenge their incarceration effectively blessed the continued operation of the military-tribunal system; Congress has blocked all efforts to close the prison; and even the White House has been steadily backing away from the idea.
Jeffrey Fagan: With the deterrence argument eviscerated, those who defend the death penalty are forced to do so on other grounds. This is challenging, as problems with the death penalty continue to rear their ugly head. The lessons of 138 exonerations of innocent death row inmates trouble most citizens with the possibility of executing an innocent person.
Michael Graetz: The spread of popular revolt in the Middle East to Libya has exacerbated a spike in oil prices and gasoline costs at the pump. In turn, this has stimulated widespread complaints about the lack of a coherent U.S. foreign policy toward despots in the region. This is not the first time this has happened.
WALL STREET JOURNAL—March 7
White House Adopts International Standard for al Qaeda Detainees Matthew Waxman, a professor at Columbia Law School and a former Bush administration official who supported recognizing Article 75 as customary law, said the Obama administration move was important—and could blunt criticism that the U.S. intends to hold some accused terrorists indefinitely. “Part of the opposition to the U.S. position that it could capture and hold enemy al Qaeda fighters for the duration of hostilities, comes from a concern the U.S. was not adequately explaining what law would then apply,” Mr. Waxman said.
Michael Graetz, a Columbia law professor, had a similar take, noting that less than one percent of partnerships account for 60 percent of that group’s income. (Partnerships are a kind of pass-through entity.) “We really ought to divide the world between large companies and small businesses,” Graetz said, adding that the U.S. should “not allow the corporate tax to be elective for large businesses.”
"On the one hand, it improves operations and processes at Guantanamo and it improves the legal framework under which the U.S. government conducts detention operations," said Matthew Waxman, a professor at Columbia Law School who served as deputy assistant secretary of defense for detainee affairs in the George W. Bush administration. "On the other hand, the reason why this order is in place is to put Guantanamo policy on a stronger foundation for the long term," he added, and critics "worry this is a step towards making Guantanamo permanent or at least keeping it open."
“It depends on whether he has material information or just a little piece that would not be important to the ordinary investor,” said Harvey Goldschmid, a Columbia University Law School professor and former SEC Commissioner.
John Coffee: He's going to be able to say that he told his board of directors about Warren Buffet's investment of $5 billion and that only minutes thereafter there was trading activity in Goldman stock. And the prosecution will be able to show that one Goldman director, Mr. Gupta, called Mr. Rajaratnam and appears to have provided that information to him.
NEW YORK LAW JOURNAL—March 10
Increasing Use of Renewable Energy: Legal Techniques and Impediments (subscription required)
Michael Gerrard: Existing economic and legal mechanisms as well as physical constraints significantly inhibit the growth of renewable energy resources, but numerous techniques are available to overcome many of these difficulties.
John Coffee, a professor at Columbia Law School, said the plaintiffs face an uphill fight because their proposed class is so diverse. "In recent Supreme Court decisions, class actions have to have a little internal cohesion that this case lacks," he said. But he said the justices might allow "scaled-down" suits, perhaps permitting Wal-Mart employees to band together based on region or job type.
FDA WEEK—March 11
House Republicans Weigh Raising APA Bar for Agencies (subscription required)
But at the hearing, Peter Strauss of Columbia Law School expressed concerns that the procedure could be used to obstruct an agency from moving forward with a rulemaking, citing his experience with the process at the Nuclear Regulatory Commission.
We all know that as technology empowers us to do more, it carries with it all manner of problems. But one of our biggest pickles tends to slip right by us: We’re not free. So argues Tim Wu, law professor, author of The Master Switch and recent appointee to the Federal Trade Commission. In the face of corporate control of the Internet, Wu’s concept of “network neutrality” – the notion that networks should be equally accessible by the people using them, and that the people who own the pipes can’t place restrictions on access to it or on the content that passes through it – has sparked a war over the future of communication.
S&T has managed to expose key details of its relationship with Juridica and King & Spalding. And that may be the most important legacy of the S&T spat with its erstwhile investor. Maya Steinitz, an associate-in-law at Columbia Law School who has written about the litigation finance industry, said S&T's "allegations implicate the potential conflicts of interest that arise once lawyers have a relationship--indeed may be accountable to--an investment firm as well as to their clients."
Columbia University law professor Michael Gerrard isn't quite as exercised about the potential three-year delay on what he refers to as companies' emissions "sub numbers." "It's extremely important that these macro numbers, the total emissions per facility, be reported as soon as possible," Gerrard, director of the university's Center for Climate Change Law, told SolveClimate News in an interview. "That's a large step in the right direction. And the public, companies and the EPA will be able to make good use of those numbers."
John Coffee: The Rajaratnam criminal trial may be the "insider trading trial of the century" (as some hyperbolic press accounts have already dubbed it), but it is the associated administrative proceeding brought by the SEC against his alleged co-conspirator, Rajat Gupta, the former director of Goldman Sachs and Proctor & Gamble, that is raising the most questions.
The key phrase once the debates start may be "except in the case where the damage is caused by a grave natural disaster of an exceptional character." That language in Japan's nuclear-damage compensation law could let Tokyo Electric off the hook for any offsite damage caused by the incident. Whether last Friday's magnitude 9.0 earthquake and resulting tsunami qualifies as such an event hasn't been determined. "But if this doesn't fit under that definition it makes you wonder if anything does," said Curtis Milhaupt, a Columbia Law School professor and expert on Japanese law.
Jagdish Bhagwati: Increasingly, political leaders like British Prime Minister David Cameron, German Chancellor Angela Merkel, and Indonesian President Susilo Bambang Yudhoyono, who spoke eloquently for the Round at the World Economic Forum in Davos this year, are emphasizing that the Doha Round’s failure would cost the world significant gains in prosperity, halt progress for the poor in developing countries, and reduce workers’ real incomes in developed countries.
Eben Moglen, the Columbia University law professor who knows more about the GPL and IP law when he’s asleep, then I ever when I’m wide-awake on my best day, told me, “I would say that the issue is a little less complex and a little less dire than it might seem on first acquaintance, while the facts are not quite as simple and therefore the narrative not quite as compelling as one might be led to believe.”
Columbia University law professor John C. Coffee Jr. described the Delaware law firm handling the case, Grant & Eisenhofer, "an experienced firm." He said the law firm's tactical decision not to seek an injunction to block News Corp.'s purchase of Shine "an intelligent, creative attempt to show the court that this is not extortionist litigation."
Tim Wu Tries to Save the Internet Mid-February, Tuesday night, a downtown D.C. restaurant. Nursing a pint of Magic Hat in a back booth, Tim Wu struggles to make the transition from one of the loudest lives in academe to his new job as a quietly effective federal bureaucrat. The Columbia Law School professor used to be his own boss, CEO of Tim Wu Inc. He made his name by coining the concept of "net neutrality," the notion that network operators shouldn't block or favor certain content. But right now Wu is trying to be something else: boring.
Michael Doyle: The UN authorization of a no-fly zone in Libya gives teeth to the much-heralded “responsibility to protect." But the intervention poses legal and ethical dilemmas that will plague policymakers in the weeks and months ahead.
Though Mr. Stuntz, a professor at Harvard Law School, advised public officials and wrote often in the popular press, his greatest influence was with legal scholars. After he burst on the scene in the 1980s with a flurry of fresh ideas and interpretations, “you saw a snowballing of references to him,” said Daniel C. Richman, a professor at Columbia Law School.
Law students at Columbia University in New York City are attempting to draw districts for all 435 U.S. House seats at DrawCongress.org. "The educational component is for the students themselves, but also the general public," says their professor, Nate Persily. "When the line drawers say something can't be done, we can say 'Look — we did it.' "
[T]here’d be something particularly ironic about the Federal Trade Commission permitting the AT&T/T-Mobile merger just months after it hired Tim Wu as a senior adviser “working on issues at the nexus of consumer protection, competition, law and technology.” Wu is author of “The Master Switch,” a book that I think very highly of, but whose main theme is “don’t let AT&T get too much power in any one market.”
Under Article 78, the bike lane opponents need to show that DOT acted in an “arbitrary and capricious” manner when it decided to install the bike lane. That means “that there is little or no support for what they did in the facts,” said Richard Briffault, a Columbia Law School professor and expert in state and local government law. The city only needs to show that it had some reason for installing the lane and followed proper procedure. “That puts a heavy burden on the challenger,” said Briffault.
The most immediate question, of course, is whether the parties will appeal. Most likely, the answer is yes, legal experts say, noting that at the very least, an appeal would buy time and a little breathing room while the parties revisit the prospect of yet another amended agreement process. “With so much invested to date, an appeal poses comparatively modest costs and few downsides,” blogged Columbia University copyright lawyer Kenneth Crews.
[M]ediation may help meet profound emotional needs of the injured parties in a way that an adversarial trial would not. "Mediation is a place where you can have a much broader discussion and talk about not only what's legally relevant to a patient's claim but also about things that are often very important to people but aren't legally significant, like how you were treated, or the lack of communication," Carol B. Liebman, coauthor of the study, a professor of law at Columbia Law School and director of the school's mediation clinic, told Medscape.
"The constitutional lines defining the president's authority to use military force without congressional authority have never been clearly defined and remain subject to substantial debate," Matthew Waxman, an expert on national-security law at Columbia Law School, said. While the Constitution gives Congress the power to "declare war," it also outlines that the president is the commander in chief of the Army and Navy. "This division of authority doesn't provide much guidance," Waxman said, "especially with respect to limited uses of force."
Eben Moglen, a professor of Law at Columbia Law School and the founding director of the Software Freedom Law Center, believes that Google is simply repeating the past mistakes of other companies that tried to put tight controls around the release of their open-source software. "It's usually a mistake," Moglen says. "Long experience teaches people that exposing the code to the community helps more than it hurts you."
Could a patent infringement case that has the deep-fryer industry sizzling really have a chilling effect on software development? That’s the claim made by Columbia Law School’s Eben Moglen, who said the U.S. Supreme Court’s forthcoming decision in the Global-Tech Appliances v. SEB dispute could stifle innovation and impede progress.
Jagdish Bhagwati: I call upon the media in all the democratic countries, including The New Republic magazine and publishers in the Islamic countries whose people have been turning to the universal values of democracy, human rights, and freedom, to unite and declare a day in 2011 as Freedom of Expression Day, and publish in unison a common set of cartoons mocking different religions, with a ringing statement that no newspaper or magazine will ever be allowed to be singled out for retribution for its adherence to the important value of freedom of expression.
Yesterday’s numbers are “the gunshot that starts the race to draw districts,’’ said Nathaniel Persily, a Columbia University professor frequently called upon by courts to draw nonpartisan maps when districts are challenged. “Redistricting becomes a game of musical chairs, and when the music stops, one of the incumbents doesn’t have a seat.’’
Columbia University law professor John Coffee said that the high court could bring a virtual end to employment discrimination class actions filed under Title VII of the Civil Rights Act of 1964, depending on how it decides the Wal-Mart case. “Litigation brought by individuals under Title VII is just too costly,” Coffee said. “It’s either class action or nothing.”
Matthew Waxman: Does the president have constitutional authority to authorize U.S. military operations in Libya without congressional approval? The short answer is, "Very likely yes, but . . ." I say "very likely" because constitutional law in this area remains hotly contested between the Executive and Legislative branches (along with legal scholars and other commentators), but it strongly favors the president in this case. I say "but . . ." because as Libyan operations evolve without congressional approval, or if Congress takes certain actions of its own, the answer may change.
Lawyers familiar with the cases speculate that Google is providing a defense under some type of indemnity agreement negotiated with Android users. "It's no secret," said Columbia Law School professor Eben Moglen, who chairs the Software Freedom Law Center. "Google made clear to handset manufacturers that this was not going to be their problem. It was going to be Google's problem."
But if it just destroys the business model for competing travel agents and websites by absorbing the service into its overall search system, [Google] will undermine a whole set of potential competitors for advertising dollars. Tim Wu, a law professor and author of the book The Master Switch, argues of such a deal, "In the longer term, however, the risk is that this deal could give Google such an advantage that travel search becomes like other forms of search, dominated by one engine, which could eventually stifle innovation."
The power of "professional plaintiffs' class action lawyers" in the American legal system is unrivaled. It is no more clearly demonstrated than in their ability to have the word "professional" given a negative connotation by our country's judiciary … Equally troubling has been [their] ability to have the judiciary cast aspersions on objectors' counsel for engaging in a litigation/business strategy not dissimilar from the litigation/business strategy of "professional plaintiffs' class action lawyers." At least one prominent observer of class action industry practices, Professor John C. Coffee Jr. of Columbia University Law School, has noted the irony of the accusation of the predatory nature of so-called "professional objectors."
The history of U.S. energy policy is "not encouraging," as, for the past 40 years, hand-wringing about price shocks quickly gives way to relief when prices drop, said Michael Graetz, a Columbia University professor who recently authored a book on the failures of past energy policies. "We lose our attention span," he said.
John Coffee, a Columbia University law professor, called the disclosure "embarrassing" for Berkshire. "It's the kind of behavior that, as a matter of corporate governance, sophisticated companies try to avoid," he added.
Richard Lehv, a lawyer who teaches trademark and copyright law at Columbia University Law School, said the dispute had similarities to other local culinary trademark issues, like those surrounding pizza places named Ray’s and pasta sauces named Patsy’s. He said a court will judge numerous issues: logos, menus, clientele, whether there is evidence of customers being confused, the origin of the name Mutt’s Hut, the strength of the Rutt’s Hut trademark among them. “Likelihood of confusion, as you can guess, isn’t a bright-line standard,” or clear-cut division, he said.
Political and financial misconduct at the Fiesta Bowl could produce a plethora of criminal prosecutions, not to mention lawsuits and regulatory actions, according to experts who analyzed the bowl's internal report. "This is more than good ol' boys having fun," said John Coffee, a Columbia University law professor who specializes in white-collar crimes.
In addition to testifying truthfully at grand jury and court proceedings, Minkow is required to assist federal investigations by going undercover if asked, the plea agreement says. "Apparently, the government values his assistance in other cases," said John Coffee, a securities law expert at Columbia University. "Only time will tell if he can make any bigger case for the government."