January 1-15


MUSEUM VIEWS – January 1
Forgeries—estimated as high as 40 percent of worldwide art sales of some $50 billion—and how to uncover them were discussed in depth during a symposium held by Columbia Law School’s Kernochan Center for Law, Media and the Arts. Legal scholars, attorneys, insurance underwriters, art curators, and others gathered for the occasion.
By Menachem Rosensaft
An abhorrent rally Saturday night in Jerusalem's Shabbat Square featuring haredim, that is, ultra-Orthodox Jews, wearing yellow stars and simulated concentration camp uniforms brings to mind Walt Kelly's observation in the classic Pogo comic strip, "We have met the enemy and he is us."
"You cannot create a majority black district in Harlem," said Columbia University's Nathaniel Persily, a veteran of past line-drawing efforts. "There's just not enough [blacks] there.''
CNN MONEY – January 5
But someone who works for himself can't be misappropriating information from an employer, observes Columbia law professor Jack Coffee in an interview. Now if he intentionally publishes false information about target companies, Coffee continues, that would be illegal stock manipulation. But if the information is true, or the person believes it is, it probably can't be stock manipulation.
"What we have now is a situation where it is extremely easy for people with large amounts of money for shaping a congressional race to put it in early," said Richard Briffault, a Columbia law professor who specializes in campaign finance. "The so-called independent money is increasingly less about ideology and more about targeting or helping -- more commonly targeting -- specific candidates. These are in effect shadow campaigns, maintaining a little bit of distance from campaigns because they have to do so legally, but basically being totally supportive, supporting or opposing a particular candidate."
Matthew Waxman, a professor at Columbia Law School, was in charge of detainee affairs during the Bush administration. "2012 will be a big year for military commissions," Waxman said. "The U.S. government has several goals that they are trying to achieve. Obviously they want to achieve successful convictions, but they also want to prove that the military commissions system is a legitimate one."
Fewer Americans filed for personal bankruptcy last year, though experts said that might change in 2012. Filings fell 12% in 2011 as 1.35 million Americans entered Chapter 7 or 13, according to an analysis for the National Bankruptcy Research Center by Columbia Law School professor Ronald Mann.
USA TODAY – January 5
Super PACs are a new weapon in politics, spurred by recent federal court rulings that allow unlimited corporate and union spending in political advertising. The super PACs are barred from direct coordination with the candidate's campaign, but they face no restrictions on how much they can raise or spend to support or attack politicians. "The sky's the limit," Columbia Law School campaign-finance expert Richard Briffault said. "We are back to the pre-Watergate era of unlimited amounts of money."
Benjamin L. Liebman, Robert L. Lieff professor of law and director of the Center for Chinese Legal Studies at Columbia Law School, said one or two faculty members from each school are expected to participate in the program that begins this spring. The exchange, he said, is geared towards Columbia faculty members who are not specialists in Chinese law.
REUTERS – January 6
The practical impact of the change could be limited. "It is a very small, marginal change," said John Coffee, a professor at Columbia Law School. "It does make them look more flexible...It was ludicrous to say the defendant does not admit charges that he's already pled criminally guilty to."
The state Supreme Court-appointed "special master" who conducted Monday's nearly two-hour hearing in Hartford — Columbia University Law School professor and election expert Nathaniel Persily — said he'd take the arguments "under advisement" in preparing his report to the Supreme Court recommending new boundary lines for the state's five congressional districts. The court's deadline for re-drawing the lines is Feb. 15.
The number of Americans filing for personal bankruptcy fell 12% last year, as 1.35 million Americans entered Chapter 7 or 13, according to an analysis for the National Bankruptcy Research Center by Columbia Law School professor Ronald Mann.
PBS NEWSHOUR (blog) – January 11
Elke from Roswell, N.M. asks: If tax rate adjustments did not affect revenue very much, did that have to do with simultaneous adjustments in deductions and exemptions?
Paul Solman: After doing the usual "little green man" double take when reading that this email came from Roswell, New Mexico, I sent it on to Columbia Law School professor Alex Raskolnikov, the tax expert around whom our story on the history of top tax rates was built.
SCOTUSBLOG – January 11
By Ronald Mann
The Court’s decision yesterday in CompuCredit Corporation v. Greenwood reversed the Ninth Circuit in yet another in the one-sided line of cases involving the enforceability of pre-dispute arbitration agreements. The decision involves arbitration of claims that involve an obscure statute, the Credit Repair Organizations Act (CROA), but an all-too-familiar product: the so-called “harvester” credit card largely outlawed by Section 105 of the CARD Act of 2009.
By Menachem Rosensaft
The spectacle of haredi -- that is, ultra-Orthodox -- thugs spitting on Naama Margolis, an 8-year-old schoolgirl in the Israeli town of Beit Shemesh has exacerbated the already frayed relations between the fundamentalist religious sector of the Jewish community, in Israel and elsewhere, and the rest of us, that is, Conservative, Reform, Modern Orthodox and secular Jews.
FORBES – January 13
The Brown bill was referred to the Committee on Banking, Housing, and Urban Affairs, and a hearing was held by such Committee on December 1, 2011, with respect to several pieces of capital formation legislation, including crowdfunding. As noted above, the hearing focused on fraud concerns, including testimony from Professor John C. Coffee of Columbia University Law School.
C. Scott Hemphill, a Columbia Law School professor and former clerk to U.S. Supreme Court Justice Antonin Scalia, has been hired to run Attorney General Eric T. Schneiderman's antitrust bureau. Mr. Schneiderman said that Mr. Hemphill's "expertise in the complex area of antitrust law is broad and deep, as is his commitment to justice and fairness. He will be a tremendous asset to this office, and the people of New York State."
The maps filed by Nathaniel Persily, a Columbia law professor named as special master after a legislative redistricting commission deadlocked over congressional borders, would keep Democratic New Britain in the 5th District, an open seat expected to spark the closest race in 2012.
Similar new items appeared in the Hartford Courant and Greenwich Time. Persily’s draft report and plan for Connecticut’s Congressional redistricting is available via the Judicial Branch of the State of Connecticut.
"In the immigration context," said Columbia University Law School professor Suzanne Goldberg, an expert on sexuality law, "DOMA tears binational gay couples apart."
MERCURY NEWS – January 14
Still, the bill has drawn some critics, including John Coffee, a professor at Columbia Law School who testified at some of the Senate hearings last month. "I have some doubts it will accomplish much," Coffee told me. "And you're giving a very broad exemption from our normal expectation of transparency."
John C. Coffee Jr., a professor at Columbia University School of Law, said the rule should be changed to require a minimum net worth of $5 million and to set a standard for diversification so that no more than 15 to 20 percent of someone’s net worth could be in unregulated investments.
THE NEW YORK POST – January 15
“If the lawyers are actively involved in counseling her in what to say and haven’t urged her to come clean, that would violate the rule against deception,” Columbia University law professor William Simon said.
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January 16-31

JD JOURNAL – January 16
Legendary professor of Columbia Law School, Hans Smit, ’5 LL.B., was also a scholar and practitioner of international arbitration and procedures. He died on January 7, 2012, at the age of 84.
By Vivian Berger
The past decade has witnessed a growing number of experiments in sex-segregated public education. Although the bloom may be off the rose — districts in Louisiana, Pennsylvania and Wisconsin recently decided to end, or not commence, such plans — they are scarcely moribund, despite attacks by the American Civil Liberties Union and resistance from mainstream feminist groups. Indeed, in 2011-12, more than 500 schools in 40 states are either wholly single-sex or furnish single-sex classrooms. Some proponents claim that these programs are needed to remedy the ills of urban educational systems.
RADIO BOSTON – January 17
“The whole point of the super PACs – the thing that makes them legal – is that they operate independently of the candidates,” said Richard Briffault, a law professor and expert in campaign finance law at Columbia Law School. “So to suggest that the candidates could actually control the super PACs that are helping them would in effect mean that those super PACs were themselves illegal.”
But even if the SEC’s allegations of misrepresentation are true, they won’t bring about just retribution for the 2008 meltdown’s main villains. When it comes to the 2008 crash, Columbia law professor John Coffee told me, Fannie and Freddie are “second tier in terms of culpability.” Republicans like to claim that the two agencies caused the housing bubble and financial meltdown, but that’s untrue. In fact, Coffee pointed out, the very term “subprime” originally referred to financial products that Fannie and Freddie wouldn’t touch—that is, until they were goaded by their competitors and shareholders into entering the market.
BLOOMBERG – January 18
The SEC must approve Carlyle’s registration statement before the private-equity firm can sell shares to the public. The agency has historically refused to permit a public offering by a company whose charter mandates arbitration and precludes class actions, John Coffee, a professor at Columbia Law School in New York, said in an e-mail response to questions.
HARPER’S – January 18
By Scott Horton
On Friday, a judge from Spain’s national security court, the Audiencia Nacional, issued a decision directing the resumption of criminal proceedings relating to the torture and mistreatment of three prisoners held in the American detention facility at Guantánamo Bay.
But the ruling could open the door for Congress to craft further changes in copyright law that scholars might consider even more restrictive, said Kenneth D. Crews, director of the copyright-advisory office at the Columbia University Libraries.
Tim Wu, a professor at Columbia Law School, said that the technology industry, which has birthed large businesses like Google, Facebook and eBay, is much more powerful than it used to be. “This is the first real test of the political strength of the Web, and regardless of how things go, they are no longer a pushover,” said Professor Wu, who is the author of The Master Switch: The Rise and Fall of Information Empires.
BLOOMBERG – January 19
But it's important to remember that Carlyle has to get past the Securities and Exchange Commission before its IPO can reach the market. And the SEC, according to Columbia Law School securities law professor John Coffee, has historically looked askance at attempts to impose arbitration on shareholders. Coffee said that for 30 years, the agency has resisted corporate attempts to amend their charters to ban shareholder suits and require arbitration.
Tim Wu, a Columbia University law professor and author of Master Switch: The Rise and Fall of Information Empires, says yes: It boils down to a battle for survival. “Google and other web companies live or die based on how open the Internet is,” he says, calling an open Internet the natural environment that has allowed online businesses to thrive.
What everyone in the mutual fund industry seems to be focusing on now is a proposal put forward last August by professor Jeffrey Gordon of Columbia University in a comment letter he filed with the SEC. He suggested a two-tier system, with Class A and Class B shares — the first with a fixed NAV, and the second, “whose value will float to cover outright defaults or depreciation in [the] market value of portfolio securities.”
By John C. Coffee
The U.S. Securities and Exchange Commission's decision to seek a writ of mandamus against U.S. District Judge Jed Rakoff's order refusing to approve the proposed consent judgment between the SEC and Citigroup Global Markets Inc. poses fundamental questions about the relationship between administrative agencies and federal courts. But it also has led to unusual hyperbole from both sides with little objective analysis of each side's claims.
In reaching its January 2010 decision in Citizens United v. Federal Election Commission, the Court "imagined and assumed" there were already robust reporting requirements for political spending, said Robert Jackson, a Columbia Law School professor and a chief author of the SEC petition. "We were dismayed to see the Supreme Court make that assumption because it's not the case," he said.
SOCIAL FUNDS – January 20
The group's efforts to have the SEC mandate corporate disclosure of political spending activities grew out of a petition filed with the Commission last year by a group of academics calling itself the Committee on Disclosure of Political Spending. Two of the committee's members—Lucian Bebchuk, the director of the Program on Corporate Governance at Harvard Law School, and Robert Jackson of Columbia Law School—were present at the press conference.
Some hedge fund and private equity managers route IRA retirement holdings through an offshore entity set up as a "blocker corporation," an affiliate of a private equity fund that acts as a way-station, storing the retirement funds while investing an identical amount in the actual fund. This complicated maneuver allows the investor to defer paying a 35 percent tax on earnings that the IRS considers "unrelated business income," said Michael J. Graetz, a Columbia University law professor and an authority on national and international tax law.
"Where I think you'll have a bigger impact are in the Senate and House races, where you'll see the super PACs raise more than the candidates lifted," said Richard Briffault, a professor of law at Columbia University and a campaign finance expert. "And you're going to see it sooner than ever before."
ZDF HEUTE (TV) – January 21
Griechenland ist auf den vereinbarten Schuldenschnitt angewiesen. Dagegen wollen Hedgefonds klagen. "So ganz ernst nehmen kann man das nicht", sagt Katharina Pistor von der Columbia Law School.
"We don't know anything about which companies give money to the [U.S.] Chamber of Commerce, the Business Roundtable or other intermediaries. We know how much the chamber spends, but we don't know where it comes from," said Columbia Law School professor Robert J. Jackson Jr.
NEWSWEEK – January 23
It is a tragedy of hubris. It started in Greece, prematurely some days before Dionysia, the traditional festival that is popular for its performance of Greek tragedies. But it caught up rapidly. Greece had a huge stock problem of debt overhang. But its main problem was its gargantuan current deficit. The IMF is the agency that has the unpleasant task of getting nations to tighten their belts while easing the pain by providing temporary adjustment funds. I was among the few who argued that the EU must let the IMF do this unpleasant job. But the EU felt that calling in the IMF was undignified. And so the tragedy began. Germany, rather than the IMF, is now the enemy of the Greek people; contagion has spread to others who are caught up in the rising panic. We used to say that Turkey was the “sick man of Europe.” Then Greece became that. Now Europe is almost the sick man of Europe!
SLATE (blog) – January 23
By Tim Wu
The Sundance film festival launched this past weekend, with the usual mix of offbeat drama, thoughtful documentaries, and so on. But one thing feels a little different this year: the steadily increasing presence of Silicon Valley.
SLATE (blog) – January 24
By Tim Wu
One of the hits at this year’s Sundance Film Festival is Robot and Frank, an unusual story of a lonely old man named Frank who makes friends with a household robot—who becomes his accomplice to burglary. (Yesterday, io9 labeled it the “next great science-fiction indie.”) The film is set in the near future. Frank is losing his memory, the robot has perfect memory, and together, it turns out, they make a good team for crime.
Scott Horton, a professor at Columbia Law School and a prominent human rights attorney, noted that the names of CIA operatives that Kiriakou allegedly leaked to the media would be extremely useful to foreign prosecutors pursuing possible war crimes charges against U.S. intelligence agents and officials.
Investor advocates say new rules would be an important step forward. "It's simply good policy, wise and fair. It will give retail customers greater protection," says Harvey Goldschmid, a professor at Columbia University Law School and a former SEC commissioner.
Michael B. Gerrard, Andrew Sabin Professor of Professional Practice at Columbia Law School:
"This is a very large number of comments to receive on a particular proposal, but it's not unheard of to have many thousands of comments on controversial issue. However, it's not a popularity contest. The state is required to consider all the comments, but it certainly need not follow the majority."
SLATE (blog) – January 25
By Tim Wu
“This is coming to you,” declares Tommy Stevens, owner of a blues bar in Detroit. By that he means the decay, deflation, and defeat of the middle class that has comprised the last decade of Detroit’s history. That painful story and its meaning for the rest of America is the subject of Detropia, an important, heartbreaking, and yet still occasionally hilarious documentary directed by Heidi Ewing and Rachel Grady, which premiered this past week at Sundance.
CNN MONEY – January 26
Curtis Milhaupt, professor of Japanese corporate law at Columbia, says the frankness of the report is a "good sign for Japanese corporate governance" and, as professor Mark Roe at Harvard Law says, it shows an Olympus committee much "more willing to be negative" than we are used to seeing in similar reports in the U.S. The oft-praised report commissioned by the Enron board and even reports commissioned by the government and bankruptcy courts, such as the recent Financial Crisis Inquiry Report or the Valukas report on Lehman, describe lapses of oversight but do not contain clear, pointed characterizations or condemnations of the sort the Olympus report provides.
CNN MONEY – January 26
Campaign Finance the Stephen Colbert Way
Richard Briffault
, a professor at Columbia Law School, said the attention Colbert is paying to the issue is, overall, a good thing. "He is performing a public service by bringing this issue to a wider audience," Briffault said. "At the same time, it's a pretty serious matter. It's not a joke."
Scalia has found a sympathetic audience in the federal appellate court in Washington. The court tilts conservative and is often skeptical of government regulation. “This is an activist court saying, in effect, we don’t like the substantive work the commission is doing here,” says Harvey J. Goldschmid, a former Democratic SEC commissioner who teaches at Columbia Law School. Goldschmid and other Dodd-Frank supporters say the lawsuits are an attempt by big-pocketed corporations to undo in the courts what they couldn’t stop in Congress.
At a Dec. 12 conference hosted by the Americans for Financial Reform at the headquarters of the AFL-CIO, investors, academics and advisors expressed hope that the pending rules would thwart excessive CEO pay—and thus help directors to do so. In a keynote address, Rep. Elijah Cummings (D-MD) advised that the SEC should continue what Dodd-Frank started. In response to charges throughout the day that directors “failed” to prevent runaway pay, Professor Robert J. Jackson Jr., associate professor at Columbia Law School, argued that directors are far more vigilant than ever about pay—a point reinforced by Anne Sheehan, director of corporate governance with the California State Teachers’ Retirement System (CalSTRS). Jackson wants to see more disclosures about trader-level compensation in financial firms.
SLATE (blog) – January 26
By Tim Wu
An escape fire is a swath of grassland intentionally ignited to protect humans from an oncoming blaze. Escape Fire: The Fight to Rescue American Healthcare, which premiered at Sundance this week, argues that we need to do something equally drastic if we are to save the economy from the health care system. While everyone knows health care is broken, the filmmakers go further, portraying health care itself as an out of control system, one which, if left unfixed, will burn until it consumes everything in its path.
By Katherine Franke
I return from a two-week visit to the West Bank wrestling with the complexities of solidarity in this region. The first half of my trip was as part of a delegation of 16 academics, journalists, artists, and activists who sought to better understand the relationship of Israeli occupation to Palestinian freedom and identity, particularly sexual freedom and identity. The group and its members identified as lesbian, gay, queer and/ or transgender. I stayed on for another week after the delegation concluded to begin work on an EU-funded project to enhance the role of women lawyers in the Palestinian Bar Association and in the legal profession more generally. Week One surfaced sexuality while admitting no interest in gender, while Week Two illuminated gender while leaving sexuality in the shadows. Of course the one cannot be fully understood apart from the other, but in practice it is difficult to keep both in view.
MSNBC’s THE BOTTOM LINE (online) – January 27
"You can't pay someone for just staying at a bankrupt company," said Robert Jackson, an associate professor at Columbia Law School at Columbia University, and former advisory to senior Treasury officials on executive compensation during the financial crisis.
Critics of the current status quo say there are other legal ways to patch the ballooning-bonus loophole. "You could simply amend the bankruptcy code to preclude a company in bankruptcy from paying bonuses in excess of prior salary to its existing executives," John Coffee, a professor at Columbia Law School, said via email.
By Jagdish Bhagwati
While developed countries are angst-ridden over mostly illegal immigration by unskilled workers from developing countries, a different set of concerns has surfaced in Africa, in particular, over the legal outflow of skilled, and even more importantly, highly skilled, people to developed countries. This outflow is supposedly a new and damaging “brain drain,” with rich countries actively luring away needed skills from poor countries.
“It’s an awful lot better than a global ‘takedown’ policy,” said Tim Wu, a professor at Columbia Law School. Twitter must comply with censorship “or face either physical punishment or blocking”, he added. “This is a compromise.”
Tim Wu, a professor at Columbia Law School and author of “The Master Switch,” said the changes could undermine the usefulness of Twitter in authoritarian countries. “I don’t fault them for wanting to run a normal business,” he said. “It does suggest someone or something else needs to take Twitter’s place as a political tool.”
MARKET WATCH – January 30
The briefing will include two panels of experts. Panel I will include voting rights scholars Professor Guy-Uriel Charles of Duke Law School, Professor Keith Gaddie of the University of Oklahoma, Professor Justin Levitt of Loyola Law School, Los Angeles, and Professor Nathanial Persily of Columbia Law School who will discuss the 2006 VRA amendments and post-census redistricting.
And in a recent interview, John C. Coffee Jr., a law professor at Columbia University, put it this way: “Cuomo made his fame as attorney general, and he sort of treated that jurisdiction as portable and took it with him as governor.”
CNET – January 31
The social-networking company has been at work on Capitol Hill as well. It's been lobbying Congress on behalf of a bill--now before the Senate--that, among other changes, ups the number of shareholders of record to 2,000, according to John Coffee, a Columbia Law School professor who last fall testified before the Senate Banking Committee about this issue.
FORBES – January 31
In a project funded by the Pew Charitable Trusts, TPC modeled a sweeping reform of the federal tax system that includes a VAT. The plan was authored by Columbia Law School professor Michael Graetz . While there are many forms of consumption taxes (Herman Cain’s 9-9-9 tax included several), Graetz’s is similar in structure to the one used by most other countries. In effect, every business pays tax on its sales and gets a credit for any tax that is included in the price of what it buys from other firms.
THE NEW YORKER (blog) – January 31
There’s also a question for Twitter that’s still pending: Will it enter countries where it will likely be forced to censor? It can stay out—not building offices, not selling advertising—and then just let users post whatever they want. Or it can go in and have to obey the onerous requests. Tim Wu, a law professor at Columbia, told me, “In those countries, Twitter has no particular reason or legal duty to follow the laws of that nation, and I don’t think Twitter should agree to be bound by their censorship laws, even for their citizens. Obviously, it has the right to, but I don’t agree it’s good policy.”
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