December 2012

December 1-31


The Economist – December 1
There have been calls for Google to be chopped up into two independent firms, severing its search business from its other activities. Tim Wu, a professor at Columbia Law School and consultant to the FTC, has even argued that in the interests of promoting competition, big “information monopolies” such as Apple and Google should be forced to choose between being providers of digital content, producers of hardware or information distributors (via such things as cloud-computing services).
ABA Now – December 3
In Hurricane Sandy’s aftermath, the new ABA book The Law of Adaptation to Climate Change: United States and International Aspects reads like a sobering and prescient guide for navigating a changing environment, both actual and legal….The book is edited by Michael B. Gerrard, a professor and director of the Center for Climate Change Law at Columbia Law School, and Katrina Fischer Kuh, an associate professor of law at the Maurice A. Deane School of Law at Hofstra University, where she teaches courses on environmental law.
The National Law Journal- December 3
By Vivian Berger
On December 3, the U.S. Supreme Court is hearing argument in Genesis Healthcare Corp. v. Symczyk. The case involves an uneasy juxtaposition of constitutional law and the Federal Rules of Civil Procedure in a suit based on a major statute, the Fair Labor Standards Act (FLSA).
[Bergier is Nash Professor of Law Emerita]
Lawfare – December 3
By Matthew Waxman
Most discussion of the NDAA on this blog focuses on detainee-related provisions, and a familiar argument is that some of these provisions inappropriately tie the President’s hands, stripping the executive branch of needed flexibility. A somewhat similar debate is playing out elsewhere in the NDAA, where on Friday the Senate approved – 94-0 – new sanctions aimed at Iran’s energy and shipping sectors that the White House complains are unnecessary, ineffective, and diplomatically counterproductive. 
InsideCounsel – December 4
By Paul Sarkozi, Vincent Syracuse, George Du Pont, Jaclyn Grodin
In this article, we examine what you should do as general counsel when you are served with a binding subpoena demanding preservation and production. Particularly, where the subpoena seeks costly and cumbersome electronically stored information (ESI), this article examines what you can do to efficiently minimize your potential exposure and burden while complying with the obligations imposed by Rule 45 of the Federal Rules of Civil Procedure.

[Paul Sarkozi is a lecturer-in-law.]

Ronald J. Mann, a professor at Columbia Law School in New York, argued on behalf of Genesis that the 3rd Circuit’s ruling “deprives the defendant of the ability to free itself from litigation even when it is willing to pay complete relief to the sole plaintiff.”
The Pittsburgh Tribune Review – December 5
And Columbia University’s Peter Rosenblum recounts how Rice, in 1998, botched a peace plan between warring Ethiopia and Eritrea. Her actions directly led to an escalation of the war, prompted Rice’s recall to Washington and resulted in a “probation” ordered by a furious Madeleine Albright, then secretary of State.
Similar articles appeared in other publications.
CNN – December 5
Columbia Law School’s Matthew Waxman discusses U.S. drone strikes killing American citizens.
Los Angeles Times – December 7
“The contrast is striking," said John C. Coffee, a Columbia law school expert in fraud claims, contending that the SEC's own legal staff is weak. "If you want a large recovery, you need a private law firm that can staff the case with the bodies that it takes."
Business Insider – December 7
“I think this will be the final chapter for DOMA," Suzanne Goldberg, director of the sexuality and gender law clinic at Columbia Law School, told Business Insider. "It means the federal government will not be able to ignore gay couples' marriages."
The Huffington Post – December 7
"I'm not thrilled," said Katherine Franke, a professor of law at Columbia Law School, where she directs the Center for Gender and Sexuality Law. "I would have preferred they took the Windsor case alone."
Similar articles appeared in other publications.
ExecutedToday – December 7
“It was an obscure case, the kind that could involve anybody,” Columbia Law Prof. James Liebman said. “Maybe those are the cases where miscarriages of justice happen, the routine everyday cases where nobody thinks enough about the victim, let alone the defendant.”
Lawfare – December 7
By Matthew Waxman
Steve and Marty make what seem to me very valid legal arguments in response to Jonathan Hafetz’s post on Opinio Juris, in which Jonathan argues that the Feinstein Amendment’s principal effect would be to embed citizenship-based distinctions (in this case, with regard to military detention) “that undermine protections for millions of non-citizens in the United States … and widen the rift between international human rights and the U.S. Constitution.”
CBS This Morning – December 8
Suzanne Goldberg, professor at the Columbia University Law School explains how marriage laws across the country could be impacted by two Supreme Court cases.
The El Paso Times – December 10
The El Paso County Sheriff's Office offers a positive example of how local governments can incorporate human rights into their public policies, according to a just-released report by the Human Rights Institute at Columbia Law School…."The report highlights the efforts of the El Paso County Sheriff's Office to foster meaningful participation and collaboration with community members, through the Border Network for Human Rights," said JoAnn Kamuf Ward, spokeswoman for the institute. "States, cities and other localities within the United States are starting to address local issues by incorporating international human rights standards. This report is also a call to action."
Politico – December 10
By JoAnn Kamuf Ward
2012 was a trailblazing year. Until this year, no state had defined fiscal policy in human rights terms. Vermont took the first step. The state Legislature amended the budget to explicitly include human rights principles, stating it “should be designed to address the needs of the people in Vermont in a way that advances human dignity and equity.”
The New York Times – December 9
“We are at a major turning point in the arc of gay and lesbian rights,” said Suzanne B. Goldberg, a law professor at Columbia. “The cases are moving fast, and the country is as well.”
Forbes – December 10
From a broader perspective, the government’s efforts to combat insider trading over the past fifty years have inspired other nations to follow suit.  “The enforcement of insider trading,” explained Meyer Eisenberg, a lecturer-in-law at Columbia Law School, “has been one of America’s most successful exports.”…This analogy also applies to insider trading.  Yes, the government’s performance has been impressive.  But by most accounts, it has uncovered a tiny fraction of insider trading.  “Do many people escape,” said John Coffee, a professor at Columbia Law School who recently chaired a conference on insider trading at the school.  “No doubt about it.”
Slate – December 11
Like Katherine Franke, a scholar of gender and sexuality law at Columbia, I worry that the general response to these charges constitutes a grade-A “sex panic,” a pitchfork-wielding, irrational, damn-the-details response to sexual relationships that make a lot of us uncomfortable.
The Ledger – December 11
The backroom deals continued, says Peter Rosenblum, a professor of law at Columbia University who headed the Carter Center's mission to observe the mining review. "What happened in 2008 and 2009 really proved that the Gertlers of the world would win by doing business the way they'd been doing it all along," Rosenblum says. Today, Transparency International ranks only a dozen countries below Congo in its Corruption Perceptions Index.
Thomson Reuters – December 11
But Kaplan cited a report by Columbia Law School professor John Coffee that said plaintiffs' lawyers hire lobbyists and contribute campaign funds to officials who oversee those pension funds.
Education Week – December 11
By James. S Liebman
In his Nov. 7 victory speech, President Barack Obama noted Americans' "fierce" differences on "big" issues and urged us to come together around shared goals. First among the goals he hopes will unify us, despite our "noisy and messy" disagreements about how to reach them, is access by children "to the best schools and the best teachers."
The New York Times – December 11
Loopholes to Some, Lifelines to Others
It was a strategy for the times. Three years earlier, Republicans had taken control of both chambers of Congress for the first time since the 1950s. “Republicans would vote for any tax reduction that came along without questioning it much,” said Michael Graetz, an expert on taxation at Columbia Law School who worked in the administration of George H. W. Bush. “Democrats found that the only way they could get the kind of spending they wanted was in the form of tax benefits.”
The New York Times – December 12
By Jagdish Bhagwati
The community was in a "palpable state of shock" over the fire at a plant that left 25 workers dead and 55 others injured. "Many people who lost loved ones and friends in the fire expressed bitterness about the deaths and injuries. They acknowledged that the plant provided significant employment for residents in the area, but they were deeply concerned by reports that many of the victims of the blaze were trapped in the building by blocked exits.”
NPR – December 13
John Coffee, a professor at Columbia Law School, scoffs at that doomsday scenario.
“I don’t think anyone can confidently say what the economic impact on HSCB would be,” Coffee says. “I doubt that it would have failed.”
NPR – December 13
"This is justice very much delayed, and that may be to a degree justice denied," says John Coffee, a law professor at Columbia and an expert in prosecuting white collar crime.
Read Media – December 13
Today a coalition of energy, environmental and community interest organizations, led by the Columbia Center for Climate Change Law, have filed a formal petition with the New York Public Service Commission (PSC) to require all public utilities to develop long-term hazard mitigation plans, with a particular focus on dealing with problems that will arise due to climate change, such as increased risk of flooding, sea level rise and more frequent and intense storms.
Similar articles appeared in other publications.
Lawfare – December 13
By Matthew Waxman
It’s important to think carefully about how the government can use the information it collects (whereas the most intense public debate has been about how the government collects information in the first place), but I don’t agree with the immediate reaction of some to this story (see, e.g., here) that it shows vast new government surveillance powers. – December 13
Columbia University law professor Tim Wu may have coined a phrase - "network neutrality" - that's become the cri de coeur for a generation of geeks and Internet evangelists. But maybe more than anyone, Wu knows it's a concept easier said than accomplished - or protected.
Similar articles appeared in other publications.
Puerto Rico Report – December 14
Columbia Law School professor Christina Duffy Ponsa has published a thoughtful essay about the November 6th Puerto Rico Plebiscite.  A nationally recognized expert on the constitutional implications of American territorial expansion, Ms. Duffy Ponsa’s analysis is a concise, easy read on the implications of the recent vote. 
New York Times DealBook- December 17
By Robert Jackson Jr. and Lucian A. Bebchuk
One of the challenges that the Securities and Exchange Commission will face next year is how to address investor concerns about corporate political spending.
Shareholders have grown increasingly interested in receiving information about the money corporations spend on politics. In response to their demands, about 60 percent of the companies in the Standard & Poor’s 100-stock index have adopted voluntary disclosure policies.
The Austin Chronicle – December 18
As Nueces County D.A., Jones was in office when Carlos DeLuna was sentenced to die for the murder of Wanda Lopez in 1983. An exhaustive reinvestigation of that case by law professor James Liebman was published earlier this year in the Columbia University School of Law's Human Rights Law Review, suggesting strongly that DeLuna was convicted and later executed for a crime he did not commit.
NPR – December 18
Theodore Shaw, a Columbia University law professor who used to lead the Legal Defense Fund, says Ifill is more than up to the task of making that case to the public. "She's tough in the right way," Shaw says. "And when I say she is tough, I mean she can make difficult decisions. She is not going to be pushed around. She can run an institution and run it well."
The Boston Globe – December 18
While the $5 million fine may send a message, it is hardly going to hurt Morgan Stanley, said John Coffee, director of the Center on Corporate Governance at Columbia University Law School. “That’s not the bonus for two employees there,” he said.
Still, Coffee said, the action reinforces Massachusetts’ image as an aggressive enforcer of securities law, and shows that the state will go after even minor infractions.
Similar articles appeared in other publications.
The New York Times - December 19
By Tim Wu
Nobody ever said that big cities make for easy living. The apps of the moment, Uber and Airbnb, try to mitigate matters by letting you book a car ride or rent someone’s apartment using your smartphone or computer. They are beloved by those contemplating scarce taxis or $500 hotel rooms. But they’re considerably less popular among city regulators, whose reactions recall Ned Ludd’s response to the automated loom.
China Economic Net – December 19
Karl Sauvant, a resident senior fellow at the Vale Columbia Center on Sustainable International Investment at Columbia University, echoed Alden's views.
"Naturally, the negotiations will present a number of challenges that need to be met, and some issues may even require decisions on the political level, but I think it is certainly worthwhile to press ahead with them," said Sauvant, editor of the book Is the US Ready for FDI from China?
Forbes – December 20
At an insider trading conference at Columbia Law School last month, Mark Pomerantz, a prominent defense attorney and former federal prosecutor who served as a panelist, asked a roomful of experts if they could recall a case from the past 25 years in which a defendant was acquitted in an insider trading case. 
The New York Law Journal – December 21
Alexandra Carter, a professor at Columbia Law School, recently conducted a simulation for the United Nations at which women delegates from 23 countries honed the skills needed for negotiating international peace agreements - in this case the settlement of a fictional conflict involving biological weapons.
The Financial Times – December 21
By John Coffee
The humbling of two global banks in recent weeks has been greeted very differently on opposite sides of the Atlantic. Still, from the perspective of either side, large fines for interest rate rigging by Swiss bank UBS, and money-laundering by HSBC, point to the same conclusion: from now on, banks must protect their reputations as their most valuable asset.
Sounds of Dissent, WZBC 90.3 FM – December 22
Radio interview with Patricia Williams on “Mass Shooters, Mental Illness, Entitlement, and Guns.”
The Buffalo News – December 22
Yet there are other moral questions attendant to the use of drones, said Naureen Shah, associate director of the Counterterrorism and Human Rights Project at the Columbia University Law School.
The Daily Journal (subscription required) - December 27
Eastern District struggles under workload, judicial shortage
Increasing judgeships is difficult, especially in a climate where legislators are paying particular attention to the budget. Adding a district judge costs an estimated $981,000. The most recent bill to add judges passed in 2002. "If you're not going to change the kind of cases that federal courts are hearing, then you have to match up the number of judges to the number of cases that are coming in the door," said Michael Shenkman, lecturer and fellow at Columbia Law School. "In the Eastern District of California, it's so severe that there is no option other than adding new judgeships."