October 1-15


BNA INSIGHTS - October 2011
Columbia Law School Professor John C. Coffee is widely recognized as one of the leading experts on class certification. His annual presentation on recent developments in class action certification is a highlight at the American Bar Association Litigation Section's National Institute on Class Actions. In this article, prepared for the Institute, Professor Coffee details and assesses the highlights of class certification rulings from 2005 to 2011, and tracks trends in approaches to certification.
EL PASO TIMES – October 2
This is a very live question," Richard Briffault, a Columbia University law professor who studies campaign-finance law, said of the El Paso case. "It could go either way."
Nathaniel Persily, a law and political science professor at Columbia Law School, said the consultant question comes down to what a state is trying to accomplish. If the goal is to balance populations and maintain the collective voice of racial or minority voting blocs, the data is available from the U.S. Census Bureau. If a state wants to go further and delve into the political ramifications of new district lines, it probably wants to hire a consultant.
GIGAOM – October 3
In the end, O’Brien — and many other critics of Google, including law professor Tim Wu, author of the book The Master Switch – also argue that the search giant is unassailable because it benefits from network effects that no one else can match.
LAW.COM – October 3
"We have always had a list of factors the board was supposed to consider, such as the seriousness of the crime, criminal history and participation in [rehabilitative] programs," said Philip M. Genty, a professor at Columbia Law School and director of its Prisoners and Families Clinic who has written about the new law for the New York Law Journal ("Changes to Parole Laws Signal Potentially Sweeping Policy Shift," Sept. 2).
“Once the case gets back to the district court, “the judge will have a lot more information,” said Henry P. Monaghan, a Columbia Law School professor who helped Blackstone prepare its Supreme Court petition. “The basic issue is, were there misrepresentations when the IPO was issued, and what is the relevance?” Mr. Monaghan said in an interview.
Some major corporations, however, may be reluctant to give directly to a political candidate or advocacy group because the donation would become a public record, exposing them to scrutiny, experts say. "People might object to what they've done -- their shareholders, their customers," said Richard Briffault, a law professor at Columbia Law School.
"The question is, how much info is going to be biasing, assuming they're not going to live in a bubble, and what kind of info is biasing?" said Jeffrey Fagan, a professor at Columbia University Law School. "What happens to people subconsciously with their biases and what happens cognitively with their biases, you just don't know."
NYTIMES – October 5
“It’s surprising to learn that practices that the Fed raised as problematic two years ago are still going on,” said Robert Jackson, a Columbia Law School professor and senior adviser on executive compensation in the Obama administration until last fall. “We are still waiting for hard evidence of any real change.”
FORBES – October 5
President Barack Obama’s decision to brand his bid to tax the rich more—the “Buffett rule”–  is hardly unprecedented,  but it is plenty savvy.  “Anecdotes have caused all sorts of tax legislation,’’ says Columbia University Law Professor Michael J. Graetz, a former Treasury official and author of several books on tax policy.
Harvey Goldschmid, former SEC commissioner and law professor at Columbia Universty, might hold even more clout among his fellow countrymen.
He said this is a "critical moment" for convergence and wheeled out supporting statements from well-respected backers like Ford Motor.

In response to the second argument, the Court found that the 1990 rule change was “never properly promulgated,” and thus does not give FINRA the authority to judicially enforce its fines.
Securities law professor John Coffee, Jr., stated that “[t]he decision neuters Finra.”
"This is not the tempered language that one usually sees from a court," said Suzanne Goldberg, a professor of civil-rights law at Columbia Law School. "In that sense, this is a very sharp rebuke."
John Coffee, a prominent securities law expert and a law professor at Columbia University in New York, said he thinks Mr. Rajaratnam will get 13 to 17 years, a few years shy of the term the prosecution asked for, which he said would have been an “all-time record” for insider trading.
NY TIMES – October 9
Some lawyers say that by avoiding compromise, the court’s majority rulings are clearer because they do not need to be softened to win votes. But some lawyers say Judge Lippman simply may not be able to control the other judges on the court. “One possibility,” said Richard Briffault, a Columbia Law professor, “is that he’s not as good at getting compromise as Judge Kaye was.”
In The Master Switch, Tim Wu points to history and shows how every information industry has been taken over by a ruthless monopoly. He argues that as most of the world's media is now travelling on one single network, there is a risk of the internet being ruled by one corporate leviathan. It doesn’t take a massive leap of thought to imagine that the resulting centralisation of power by a single corporate might not be great for freedom of speech.
BLOOMBERG – October 12
John C. Coffee Jr., a Columbia University securities law professor, called it a “delicious irony” that the two men’s firms fared better than their competitors after passage of the securities reform act intended to restrict them.
BLOOMBERG – October 13
“Attorneys general have worked long and hard together to pull together an agreement and may not make it,” said James Tierney, director of Columbia Law School’s National State Attorneys General Program. “But their disagreements have been honest ones, and they have certainly come closer than any other groups of elected officials in actually doing something to enforce laws and help consumers.”
JDSUPRA – October 13
For those interested in learning more about Tax Increment Financing (TIF), an article published in the University of Chicago Law Review sheds light on the history and dramatic rise of TIF in the United States. “The Most Popular Tool: Tax Increment Financing in the Political Economy of Local Government,” by Richard Briffault, professor at Columbia Law School, traces the development of TIF and explains why TIF has evolved into the most important economic development tool for local governments.
John Coffee, a securities-law expert and a professor at Columbia University’s law school, said he was surprised that the sentence wasn’t more punitive if the courts truly did want to make a statement. Mr. Rajaratnam’s lawyers argued for a lighter sentence due to his ongoing health problems, including kidney disease.
A similar item appeared in Marketplace from American Public Media and ABC News’ PM
By Mark Barenberg, James Brudney and Karl Klare
In the past month, the National Labor Relations Board has come under furious attack from Republicans in Congress, and decades-old workers’ rights are at risk. Backed by a well-financed lobbying and publicity offensive, Republicans are using a recent labor-law complaint against Boeing to achieve a radical goal that goes far beyond the legal issues in the case: unraveling workers’ rights that have been part of the fabric of our social contract since the Great Depression.

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October 16-31

 THE NEW YORK TIMES – October 18
Peter Mullen, Power at a Leading Law Firm, Dies at 83
The white-shoe firms “said that takeovers were a one-time blip,” recalled John C. Coffee Jr., a law professor at Columbia, who in the mid-1970s practiced at one of those firms, Cravath, Swaine & Moore. “They said that Skadden was riding a short-term wave, and that it would be caught in a terrible crunch when it crashed and disappeared.”

BLOOMBERG – October 20
Lawsky Juggles Roles as Financial Cop in N.Y.
John Coffee, a professor at Columbia Law School, said the original proposal would have allowed the governor to maintain some of the powers he enjoyed as attorney general.

REUTERS – October 20
Analysis: Tax Reform Impossible? Reagan Did It 25 Years Ago
"All of the betting was that (reform) was impossible," said Michael Graetz, a tax professor at Columbia Law School.

Flat Tax Seen as Savings Booster
A move to a consumption tax is "inevitable," said Michael Graetz, a professor at Columbia Law School and a Treasury Department tax official during the George H.W. Bush presidency. "I don't think you can run an economic race of the sort we're in when you're hobbled...and I think we're hobbling ourselves."

U.S. Senate Confirms Two Securities Regulators
John Coffee, a Columbia law professor, said the effect Gallagher would have on the Commission was unclear. "Recently, the Commission has been extremely polarized, and the question is whether (Gallagher's) presence will add to or subtract from that level of polarization."

One Country, Two Revolutions
Because, to paraphrase the Columbia University economist Jagdish Bhagwati, Wall Street, which was originally designed to finance “creative destruction” (the creation of new industries and products to replace old ones), fell into the habit in the last decade of financing too much “destructive creation” (inventing leveraged financial products with no more societal value than betting on whether Lindy’s sold more cheesecake than strudel). When those products blew up, they almost took the whole economy with them.

THE DAILY BEAST – October 26
Raj Deserved It
Prof. John Coffee, a securities-law expert at Columbia University Law School, says, “The real injury is, we’re corrupting institutions. Look at Goldman Sachs’s board. You want those directors to be honest, and we’ve got people being bribed. It’s like bribing a Supreme Court justice.”

A similar item appeared in Marketplace from American Public Media.

BLOOMBERG – October 27
Ex-Goldman Director Gupta Accuses in Indictment of Feeding Rajaratnam Tips
“It appears they’re ready to make out their case with a combination of phone records, co-conspirator statements from Rajaratnam, wiretaps and perhaps other witnesses or documents,” said Daniel Richman, a professor at Columbia Law School and a former federal prosecutor in New York.

CNN WORLD (online) – October 27
Why a Cybersecurity Treaty Is a Pipe Dream
By Adam Segal and Matthew Waxman
With companies and governments seemingly incapable of defending themselves from sophisticated cyber attacks and infiltration, there is almost universal belief that any durable cybersecurity solution must be transnational. The hacker – a government, a lone individual, a non-state group – stealing valuable intellectual property or exploring infrastructure control systems could be sitting in Romania, China, or Nigeria, and the assault could transit networks across several continents. Calls are therefore growing for a global treaty to help protect against cyber threats.

Energy: Friend or Enemy?
The tangled history of energy policy is admirably described in the new book by legal scholar Michael Graetz, The End of Energy. Graetz is a professor of tax law at Columbia University and a major thinker about the design of our current tax system.

Wu on ‘The Master Switch’
Tim Wu, Columbia University law professor, talks about his new communications history book, "The Master Switch."

Lifelong Death Sentences
Sarah H. Cleveland
, a law professor at Columbia and a former State Department official, said there was a gap between the United States and much of the rest of the world on this point. “Although concerns about the human impact of excessive time spent on death row have received little attention in this country, the ‘death row phenomenon’ — including lengthy time on death row — has been recognized as inhuman punishment and illegal throughout Europe since the 1980s,” she said in an e-mail.

One of the authors of that study was James S. Liebman, a law professor at Columbia. In a seminal 2000 article in The Columbia Law Review called “The Overproduction of Death,” Professor Liebman explained where the capital justice system has gone wrong: It produces too many death sentences at trial and then throws most of them out.


GOP Bill to Accelerate Redistricting in Wisconsin Falters
Historically, maps of new districts have taken effect for both houses at the same time. Barry Burden, political science professor at the University of Wisconsin-Madison, and Nathaniel Persily, a national expert on election law at Columbia University Law School in New York, said they knew of no precedent of putting two sets of maps in place at different times.

King Memorial Rekindles Imaging Debate
Philippa Loengard, assistant director of the Kernochan Center for Law, Media and the Arts at Columbia University, said while she understands why the family might guard how King’s image is used, “they are probably one of the most careful, concerned and on-top-of-image protectors I’ve ever met. They are very aggressive.”

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