July 1 - July 15

Cost-benefit defeat weighing on "gun-shy" SEC

“Losing that proxy access rule-making on the basis of a cost-benefit analysis has left the SEC gun-shy. That ruling put immense and unrealistic pressure on the commission to do cost-benefit analysis at a level that takes tremendous resources and in some respects represents nothing more than the spinning of wheels,” says Harvey Goldschmid, Dwight Professor of Law at Columbia Law School in New York and an SEC commissioner from 2002 until 2005

THE VERGE – July 5

Five years after the iPhone, carriers are the biggest threat to innovation

"The carriers have always been wary of ‘excessive' innovation in the mobile space because of the danger that it might make mobile service cheaper," says Columbia Law School professor and The Master Switch author Tim Wu. If companies like HTC and Samsung were able to compete directly at the consumer level, the carriers would turn into dumb pipes — and AT&T and Verizon would be forced to raise their service levels and lower their monthly fees to effectively compete against each other.

REUTERS – July 6
ABA members argue legality of audit firm rotation proposal

But the PCAOB could still be challenged if it mandated rotation without having cost-benefit data to support that move, said John Coffee, a law professor at Columbia University.

“The big question is not whether they have the authority, but what they have to do to exercise that authority so as to withstand judicial review,” he said.

A Fancy Financial Adviser Title Does Not Ensure High Standards

“If you were to call up Merrill, can you get them to sell you and put you into a no-load Vanguard fund?” said John C. Coffee Jr., a professor of securities law at Columbia Law School. “My guess is you cannot. But that is where I would tell my mother to put a good portion of her money, and whether it is Vanguard or Fidelity or someone else, I don’t care.”

THE HINDU – July 6
Take these men off death row

With a dark and chilling feeling we recently read about the wrong Carlos who was executed in the United States for a crime he did not commit. An extraordinary investigation by a Columbia law professor and his team led to the revelation that due to a series of mistakes from investigation to trial, Texas executed Carlos De Luna for a crime committed by Carlos Hernandez. But it came too late for poor Carlos De Luna.

REUTERS – July 8
Texas to test 1965 voting rights law in court

In the 1960s, Democrats held a monopoly of voters in the Southern states. But since then, most white Southern voters have shifted allegiances to the Republican Party, while black and Hispanic voters moved further toward the left.

That shift did not fully manifest itself until congressional redistricting last year, Nathaniel Persily, a professor at Columbia Law School, wrote in a to-be-released article in the Stanford Law & Policy Review. There have been more challenges to the Voting Rights Act in the past two years than in the previous 45 years combined. Among those challenges have been a redistricting case in Alabama and Florida's purging of voter lists of non-citizens earlier this year.
Meet the hanging chad of 2012
By Nathaniel Persily

Those of us who specialize in election law engage in a heart-wrenching task: attempting to make an educated guess about the likelihood that one or another election irregularity will lead to a Bush v. Gore-style meltdown. My candidate for the honor of the next potential chad to dangle: absentee ballots.

NY TIMES – July 8
Term Limits for Federal Judges
By Jamal Greene

It has become common, even this soon, to describe the health care decision as being central to Chief Justice John Roberts’s legacy at the Supreme Court. But that assessment may be premature. If the chief justice were to retire at the same age as the justice I clerked for, John Paul Stevens, he would be on the court until the year 2045. Will we — those of us still around, that is — even remember the health care decision then?
The Bell Tolls for India’s Congress Party
By Jagdish Bhagwati and Arvind Panagariya

Politics in Asia’s two giants, India and China, has suddenly turned very uncertain. China remains in authoritarian mode, of course. But egregious human-rights violations and suppression of dissent are raising the specter of growing internal disruptions, particularly in the wake of purges within the top leadership. By contrast, India, with its firmly rooted liberal democracy, smells to some like roses. But many believe that India, too, faces uncertain political prospects.

As the race for the White House intensifies, so does the question of campaign financing. And the answer to where the money is coming, and how it is reaching candidates, is only getting more complicated. Richard Briffault is a professor at Columbia Law School and has been following changes in campaign financing. 
Is the SEC s bark worse than its bite?
By John C. Coffee Jr.

Does the U.S. Securities and Exchange Commission settle too cheaply? Several federal judges have recently questioned whether the SEC was obtaining more than "pocket change" from major defendants in cases before them. However, the most outspoken of these judges, U.S. District Judge Jed Rakoff, who had refused to approve SEC settlements with both Citigroup Inc. and Bank of America Corp., has now been stayed by the U.S. Court of Appeals for the Second Circuit in a decision that seems to uphold the SEC's right to settle on whatever terms it wants. See SEC v. Citigroup Global Capital Markets Inc., 673 F.3d 158 (2d Cir. 2012). But this will not end the debate.
The state of Texas is facing off with the Justice Department this week over the federal Voting Rights Act. At issue is a 2011 law passed by the Republican–led Texas legislature. The law requires voters to show photo identification when they head to the polls. Lawyers for the state argued Monday that the law represents the will of the people and doesn't violate the federal Voting Rights Act passed in 1965 to protect minorities' right to vote. GUEST(S): Nathaniel Persily is the Charles Keller Beekman Professor of Law and professor of political science at Columbia Law School.
Urvashi Vaid — New York, NY - Director of the Engaging Tradition Project at the Center for Gender and Sexuality Law at Columbia Law School. Vaid is an attorney, writer and longtime leader in lesbian, gay, bisexual, and transgender (LGBT) and social justice movements. She is former executive director of the National Gay and Lesbian Task Force and has been a leader for over a decade in several philanthropic organizations.

Katherine Franke of Columbia Law School puts the same idea this way: “As some states expand their laws protecting the rights of LGBT people, pinkwashing has become an effective tool to portray a progressive reputation when their other policies relating to national security, immigration, income inequality, and militarism are anything but progressive.”


John Coffee, a Columbia Law School professor, said the scandal was proving as damaging for regulators as bankers.

By Michael B. Gerrard

In his Environmental Law column, Michael B. Gerrard, a professor at Columbia Law School and Director of its Center for Climate Change Law, writes: When a litigant brings a lawsuit under SEQRA, the odds of success have never been high. However, the cases decided in 2011 exhibited a stark exception to this general rule: Project applicants who were frustrated by governmental delays or obstacles won six of the seven cases they brought under SEQRA.
ABC NEWS – July 12
Voter ID: Poll Tax or Common Sense?

"There is fraud and there is some voter impersonation fraud but you're trying to kill a fly with a bazooka with these kinds of laws," said Nathaniel Persily, a voting law expert at Columbia Law School. "There's a lot of collateral damage."
Death penalty undermines justice
I base this upon a recent Columbia University Human Rights Law Review report. If ever there is evidence that we got it wrong and executed an innocent person, this is it. Wanda Lopez, a convenience store clerk in Corpus Christi, was brutally knifed to death in 1983. Carlos DeLuna was executed in 1989 for the murder. But an 18-month investigation led by Professor James Liebman concludes it was most likely another man who committed the murder. This report (which may be accessed at details how Texas executed the wrong man. Video clips, police records, audio interviews and notes from 100 witness interviews paint a vivid picture of the system flaws that led to DeLuna's execution.
Calculated Deal in a Rate-Rigging Inquiry
“The perception so far has been that the regulators have been toothless,” John C. Coffee Jr., professor of law and specialist in white-collar crime at Columbia Law School, told me this week.
Osama's Driver Freed In Latest Guantanamo Release
"It is wrong to think that there are no ways out of Guantanamo," says Matthew Waxman, a professor at Columbia Law School who advised the Pentagon on detainee affairs during the Bush administration. "The population has slowly been going down, and there are several avenues by which detainees can be released or transferred."
Back to top

July 13 - July 31

Online Kiobel symposium: The Alien Tort Statute and the foreign relations fallacy
By Sarah Cleveland

Both law and policy support the exercise of Alien Tort Statute (ATS) jurisdiction over serious international law violations occurring in another country, within appropriate and established bounds. Even if the domestic presumption against extraterritoriality could be considered to apply to a jurisdictional statute like the ATS, the text, purpose, and history of the statute indicate that it is not territorially limited, Among other reasons, piracy is one of the paradigmatic offenses actionable under the ATS, a clear indication of Congress’s purpose to reach beyond U.S. soil.  This is also how early interpreters like Attorney General Bradford understood it.

Trans-Pacific partnership risks China rift: report

Jagdish Bhagwati will warn the government of the risks associated with Australia's signing of the Trans-Pacific partnership when he meets with the cabinet later this month.

“I think Australia in particular has to look toward the region and toward the US, it should not have a false choice,” Professor Bhagwati said.

REUTERS – July 16
New York bar convenes task force to study anemic legal job market

Prominent lawyers from every sector of the profession will join a task force to address a historically poor job market for law school graduates, the New York City Bar Association announced Monday. Here is a [partial] list of participants:

Law school deans and leaders
-Michelle Anderson, dean, City University of New York School of Law

-Matthew Diller, dean, Cardozo Law School
-David Schizer, dean, Columbia Law School
-William Treanor, dean, Georgetown Law School
-David Wilkins, director, Program on the Legal Profession, Harvard Law School

Exclusive: Gupta Seeks Help From Friends for Lenient Sentence

Columbia University law professor John Coffee said Rakoff is known to take letters of support seriously in doling out sentences, though he said Gupta’s aggressive pitch to friends and colleagues “is not going to help” in gaining leniency.

ABC NEWS – July 18
So, Is Romney Saving Money in the Caymans or Not?

Michael Graetz, a tax specialist who teaches law at Yale and Columbia, noted that Romney makes no effort to suggest he’s not benefiting financially from the secretive accounts. Romney’s adviser Kevin Madden wrote in a letter that was read on “Fox News Sunday” that Romney “hasn’t paid a penny less in taxes by virtue of where these funds are domiciled.”

The Enduring Power of Maoism

Benjamin Liebman of Columbia Law School writes about China's legal reform but states in the beginning of exhaustively researched essay that "The party-state has continued to view law primarily as a tool for achieving policy goals. Legal reforms have not imposed significant restrains on the party-state."

JOBS Act Warning: Slow! Men at Work
By John C. Coffee

In his Corporate Securities column, John C. Coffee Jr., the Adolf A. Berle Professor of Law at Columbia University Law School, discusses the JOBS Act, a brief overview of which shows the Law of Unintended Consequences remains in full force and effect. Passed quickly, the JOBS Act does some things that the business community may not have wanted - if it had time to focus.

Diverse Director DataSource (3D) Opens for Business

"Companies face global challenges and need diverse talent on their boards to ensure they have the skills and experience to succeed," said Ira Millstein, Director of the Columbia Law School and Columbia Business School Program on Global, Economic and Regulatory Interdependence. "3D is a new source, with integrity, that can add such directors to those seeking candidates to recommend."

Ohio GOP claims Sherrod Brown, special interest allies will spend more than $13 million against Josh Mandel

Richard Briffault, a law professor at Columbia Law School professor who specializes in campaign finance, said there are two schools of thought.

"Some people divide the campaign finance world into parts – candidate spending and everything else (‘outside spending’)," Briffault wrote in an e-mail. "Other people divide the campaign finance world into three parts – campaign spending, party spending in support of that party’s candidates, and spending by all other groups (‘outside spending’).

WIA REPORT – July 19
Katharina Pistor Wins Max Planck Research Award

Katharina Pistor, the Michael I. Sovern Professor of Law at Columbia Law School, has been selected to receive the 2012 Max Planck Research Award, from the Max Planck Society and the Alexander von Humboldt Foundation. The prize comes with a cash prize of 750,000 euros.

CNN MONEY – July 19
Barclays the biggest Libor liar? No, that may have been Citi

Why Citi understated its rate matters. In Barclays' case, it was clear that traders at the bank were trying to profit from the manipulation. But if Citi lied solely to make it look better, law professor John Coffee of Columbia says that may not be enough to prove it was trying to manipulate Libor. "Criminal prosecutors are unlikely to go after a bank that was just trying to make itself look good," says Coffee.

Clock ticking for SEC to pursue fraud charges in financial crisis cases

“There’s always this moment when the SEC says: ‘You enter into this tolling agreement or we sue you tomorrow,’ ” said John C. Coffee Jr., a law professor at Columbia Law School who specializes in security regulation. “Most defendants prefer to enter into this type of agreement and avoid a dramatic event such as a lawsuit.”

Chinese judges get close-up view of US courts

This was the fourth year Columbia hosted the program, which was co-arranged by the National Judges College of China's Supreme People's Court and City University of Hong Kong Law School. "One of the most interesting things to us is to see how the quality of the participants from China increases every year," said Columbia Law professor Benjamin Liebman, who has been teaching a course on torts for the program since it began in 2009.

Both Candidates Trying to Leverage the Big Divide in Bain Capital Debate

The election-year rhetoric on outsourcing is “garbage,” said Jagdish Bhagwati, professor at Columbia University and senior fellow for international economics at the Council on Foreign Relations. Outsourcing some jobs can make American businesses more competitive and can even preserve jobs at home, Bhagwati said.

High-level managers know that there can be a difference between being an active company owner and an owner in name only. That’s a tension “that securities lawyers and corporate lawyers acknowledge every day,” said Robert Jackson Jr., associate professor at Columbia Law School.

Dimon Buys $17 Million of JPMorgan’s Shares

“I expect this is meant as a sign of his confidence in the bank,” John Coffee, a securities-law professor at Columbia University Law School, said in an e-mail.

SEC funding, SRO debates rekindle Madoff blame game

In January 2009 testimony before the Senate Banking Committee, Columbia University law professor John Coffee said that Mr. Madoff's brokerage firm fell within the jurisdiction of Finra and NASD, Finra's predecessor.

IGLHRC Honors Baldwin and Trailblazing Chilean Judge

Suzanne Goldberg, director of the Center for Gender and Sexuality Law at Columbia Law School presented Atala with the Felipa de Souza Award, named for a woman convicted and tortured for sexual relations with another woman in Brazil during the Portuguese Inquisition in 1591. She said Judge Atala had given human rights advocates “a gift at the global level” that will reverberate, noting that just months after the ruling, Chile passed an anti-discrimination law.

Negative enmity

The plan may run into legal trouble: Thomas Merrill at Columbia Law School thinks MRP might struggle to convince a court that it has satisfied the “just compensation” clause of the fifth amendment.

Trading Surges Boosted Whale Positions Before Audits

Investigators will want to look into whether traders tried to manipulate the price of an index to boost the value of holdings, said John Coffee, a securities-law professor at Columbia University Law School. Such actions resemble what’s called “painting the tape,” in which a trader engages in “purchases that are motivated only by a desire to influence a price in a thin market,” he said. Prosecutors and plaintiffs’ lawyers would need to prove intent, Coffee said.

Response: Plain text, stare decisis, and déjà vu all over again

By Sarah Cleveland

Remarkably little has been said about two issues that might seem central to this debate: the text of the ATS, and the Supreme Court’s actual analysis in Sosa.  Whatever happened to plain language analysis?  And whatever happened to stare decisis?  Sosa’s explication of the statute clearly contemplated application of the ATS to foreign acts on foreign soil.

DOJ investigating Pa. voter ID law

Nathaniel Persily, a Columbia Law School professor of law and political science, says these cases are difficult to investigate because the state has no recorded instances of voter fraud, which the law was ostensibly passed to address.

Stock Research, For a Select Few

These specialists are part of the brokerages' sales teams, and not the research departments. And no one suggests that inside information is being passed along. "The bottom line is that selective disclosure continues to be possible," says John Coffee, a securities-law professor at Columbia University. "The laws don't curtail the ability of Wall Street professionals to leak their opinions, forecasts and evaluations to preferred clients ahead of other public clients."

Doha’s Retreat

By Jagdish Bhagwati

Germans would be interested to know that Chancellor Angela Merkel teamed up in 2010 with British Prime Minister David Cameron (and, in turn, both brought on board the President of Indonesia and the Prime Minister of Turkey) to appoint an Independent Expert Group, co-chaired by me and former WTO Director General and EU Trade Commissioner Peter Sutherland, to help bring the Doha Round of Multilateral Trade Negotiations (MTN) to a close after nearly ten years of negotiations. She even turned up at Davos where we presented our Report and spoke emphatically in support of Doha, as did Mr. Cameron.

Utilities Commission faces risks in ousting Duke Energy CEO

Columbia Law School professor Jeffrey Gordon, who focuses on corporate law, said regulators can powerfully influence corporate boards, who fire CEOs as they wish.

But a forced CEO change, he said, would be a “punitive” move that slows down integrating the two companies and hurts shareholders and, indirectly, customers.

Billionaires May Win as Dems Split on Estate Tax

Additionally, home-state interests such as Montana ranchers, represented by Democratic Senators Max Baucus and Jon Tester, and the billionaires of Wal-Mart Stores Inc. (WMT) (WMT)’s founding Walton family in Arkansas shape lawmakers’ positions on the issue, said Michael Graetz, a law professor at Columbia University in New York who co-wrote a book on the politics of the estate tax.

Trading spikes give clues that losses were masked

Investigators will want to look into whether traders tried to manipulate the price of an index to boost the value of holdings, said John Coffee, a securities law professor at Columbia University Law School.

Such actions resemble what's called "painting the tape", in which a trader engages in "purchases that are motivated only by a desire to influence a price in a thin market", he said. Prosecutors and plaintiffs' lawyers would need to prove intent, Prof. Coffee said.

House Hearing Looks at Good, Bad and Ugly of SOX 10 Years Later

Among those slated to testify are: Marie Hollein, president and CEO of Financial Executives International (FEI); John Berlau, senior fellow with the Competitive Enterprise Institute; Mercer Bullard of the University of Mississippi School of Law; John Coffee of Columbia University Law School; Mallory Factor, a professor at The Citadel; Michael Gallagher, chairman, Professional Practice Executive Committee, Center for Audit Quality; and Jeffrey Hatfield, CEO of Vitae Pharmaceuticals on behalf of the Biotechnology Industry Organization.

The Story So Far

On reflection, these figures are not as startling as they seem. Nathaniel Persily, a law professor at Columbia with expertise in polling and public opinion, shared with me an unpublished article in which he makes the point that few people know much about the Supreme Court and very few ever read a Supreme Court opinion. Rather, they take their cues about the court from opinion leaders they trust.

10 years on, Sarbanes-Oxley revisited on Hill

Columbia Law School Prof. John Coffee, who testified at the hearing, pointed out that an April 2011 study conducted by the Securities and Exchange Commission found that corporations with an auditor-attestation provision in 2009 generally had a lower rate of restatements that firms that did not have such a requirement.

CFO.COM – July 26
Has Sarbanes-Oxley Done Its Job?

Columbia University Law School professor John Coffee testified that he needs a “thorough cost-benefit study in order to support the proposal.” He further noted that if the PCAOB went forward with the idea without such an analysis, the oversight board would be subject to judicial review.

SOX’s anniversary marked with congressional debate on benefits and costs

John Coffee, a Columbia University law professor, testified that an intellectual war has been raging over whether the decline in U.S. capital markets has been caused by over-regulation or a loss of investor confidence. He said he believes investor confidence has suffered significantly in the United States because of recent scandals.

Court upholds EPA ability to regulate GHGs

"Clearly, the court decision means that EPA regulations are full steam ahead," said Michael Gerrard, director of the Center for Climate Change Law at Columbia University and senior counsel at Arnold & Porter.

"The theory of EPA's ability to regulate [GHGs] has been thoroughly vindicated," Gerard said in an interview. "What remains is the practice."

Sticking Up for the Small Donor

By Richard Briffault

There's a growing sense in America that our campaign finance system is in shambles. Mega-donations from wealthy individuals, large corporations, and special interest groups are pouring into elections. Ads paid for by multi-millionaire-funded super PACs and shadowy tax-exempt organizations are flooding the airwaves. Politicians, other than those who are themselves super-wealthy, are increasingly financed by and indebted to a small pool of very big givers -- not the 1 percent but the top 1 percent of the 1 percent. Their dependence on these large donors inevitably influences the policies they support, much as the fear of triggering a torrent of spending against them can cause them to run away from certain issues and not cast certain votes.

NY TIMES – July 29
Killing a Fly With a Bazooka

Even if the government concedes that there is no evidence of fraud, there is an additional argument that the perception that voting fraud is possible “leads citizens to disengage from the democracy” and thus legitimates preventive measures. Stephen Ansolabehere, a Harvard political scientist, and Nathaniel Persily of Columbia Law School counter that argument in a Harvard Law Review article, “Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements,” which contends that the costs of such laws outweigh the benefits.

NPR – July 30
Will Penn. I.D. Law Actually Keep Voters Away?

Voter I.D. laws have been hotly debated this election season. Now, a Pennsylvania case is challenging that state's new Voter I.D. law. The Justice Department also announced that it will investigate whether the law is discriminatory. Host Michel Martin speaks with Columbia Law Professor Nathan Persily for more on the case.

Geek Time with Eben Moglen

Earlier this year at LibrePlanet 2012, Jeremy Allison caught up with Eben Moglen, head of the Software Freedom Law Center, to discuss the GPLv3 and the software project Freedom Box. Some highlights from the chat are listed below

Trickle of Libor lawsuits from rate-fixing scandal likely to become deluge

Columbia University law professor John Coffee anticipates there will be a few large class-action suits but expects more individual civil cases brought by mutual funds and investment banks.

“Mutual funds economize on their operating costs and would love to settle rather than litigate for four or five years,” he said. “If one of these cases was litigated on a full-scale basis, the plaintiff might have to incur costs of well over $10 million to bring the case to trial.”

Mitt Romney’s Financial Mysteries
By Michael Graetz

PRESSURE is mounting for Mitt Romney to release more of his financial records. Mr. Romney has made public only his 2010 tax returns and has said his 2011 documents will be released soon. “That’s all that’s necessary for people to understand something about my finances,” he said recently. He is “simply not enthusiastic,” he also said, about giving the Obama campaign “hundreds or thousands of more pages to pick through, distort and lie about.”

CNN MONEY – July 31
Apple aims for salted earth in Samsung fight

Apple's thirst for blood isn't unusual. "You always wage total war in litigation -- that's the way this works," said Harold Edgar, a professor of law and technology at the Columbia Law School.

REUTERS – July 31
Analysis: UBS's huge Facebook loss throws doubt on Nasdaq plan

"UBS is going to say, ‘you did not perform the service a professional is supposed to perform' and that's malpractice," said John Coffee, a securities law professor at Columbia Law School in New York. He added that Nasdaq's potential liability may be linked to whether the trading issues can be tied to regulatory decisions or professional service problems.

CNBC – July 31
UBS's huge Facebook loss throws doubt on Nasdaq plan

"Nasdaq is going to want to say the delays, the screwups on the morning, were because of regulatory decisions to delay trading, disrupt trading," John Coffee, a securities law professor at Columbia Law School, said in an interview.

Two online poker giants reach a deal with feds

"This is another shoe dropping in a longstanding effort by the federal government to try and freeze these companies out of the American market," said Daniel Richman, a professor of law at Columbia University and a former federal prosecutor. "As some state governments reconsider their gambling laws, we may see more of these cases against foreign gambling companies."

# # #
NOTE TO FACULTY: This report captures mentions of faculty members cited in the media, including newspapers, magazines, TV broadcasts, online outlets, and blogs. However, it is not inclusive of every media mention. If you have an article or op-ed being published, or have an interview or speaking engagement scheduled, please inform the Public Affairs office at This will allow us to better track coverage, stay informed, and promote your work. You can contact the office at 212-854-2650 for help facilitating interviews and coverage.



Back to top