Coverage of the Supreme Court Hearing on the Affordable Care Act

Abbe Gluck, law professor at Columbia Law School, talks with Bloomberg Law's Spencer Mazyck about the severability of the individual mandate provision from the Affordable Care Act.
By Abbe Gluck and Michael Graetz
The Obama administration has made a curious strategic choice in its defense of the constitutionality of the health care reform act. The central issue before the Supreme Court, which will begin hearing oral arguments on Monday, is whether the act’s requirement that everyone buy health insurance — the so-called individual mandate — exceeds Congress’s constitutional power.
BALKINIZATION (blog) – March 25
By Trevor Morrison
Over at the Volokh Conspiracy, Orin Kerr notes that many of those behind the constitutional challenge to the individual mandate in the Affordable Care Act (ACA) claim that if the Court upholds the mandate, there will no longer be any constitutional limits whatsoever on federal power. In response, Orin proposes that to ensure consistency, those who have made such arguments should pledge now that if the mandate is upheld, they “will never again argue that there are any limits on federal power.” (Orin also proposes a parallel pledge for those on the other side of the issue, but as I’ll show below, the key point is that those opposed to the ACA have already demonstrated the principled bankruptcy of their position.)
Does Congress have the power to mandate that everyone in the U.S. have health insurance? The Manhattan Institute's Avik Roy and Columbia University's Gillian Metzger discuss the Supreme Court's hearing of the case with WSJ Legal reporter Ashby Jones.
NY 1 (video) – March 26
Inside City Hall’s Errol Louis spoke with Columbia Law School professor Abbe Gluck, Fordham University political science professor Bruce Berg and Dahlia Lithwick, who writes about courts and the law for, about the first day of the Supreme Court's hearings on the federal health care law and preview what to expect during the next two days of oral arguments and beyond.
REGBLOG – March 26
By Gillian Metzger
There’s a common impression that key Obama administration regulatory reforms have created a power struggle between the federal government and the states. States challenging healthcare reform have portrayed that new legislation as a giant federal takeover and coercion of state governments. But that characterization misses what’s really going on.
"To the extent people thought, that based on Raich, and to the extent the questioning is indicative of his views, he had really only skeptical questions of the solicitor general," said Gillian Metzger, a law professor and vice dean at Columbia Law, and former clerk to Justice Ruth Bader Ginsburg.
"And he really did not ask very much at all of the respondents, which would seem to suggest—again, if you rely on the questioning—that he would be in the camp of thinking this is unconstitutional," she said. "That is a change from what people were thinking given his decision in Raich. I think otherwise, the general tenor, in terms of where justices stood, it was all in the range of possibility."
By Risa Kaufman and Martha Davis
As the Supreme Court weighs the fate of the Patient Protection and Affordable Care Act (ACA) this week, it should consider the law's international significance as well as its domestic impact. By extending health care coverage to new, under-served groups, the ACA squarely responds to concerns repeatedly raised by international human rights bodies and experts about racial disparities in U.S. health care policy. As emphasized in an amicus brief submitted to the Court by several civil and human rights organizations, the ACA represents an important effort by the United States to abide by its human rights commitments and assert its global leadership in providing equitable health care access.
By Gillian Metzger
Tuesday’s argument on the constitutionality of the individual mandate was striking in many respects. First is the apparent skepticism that the five more conservative members of the Court displayed towards the constitutionality of the mandate. Although questions at oral argument do not necessarily reveal how the Justices will vote, these five seemed sympathetic to the claim that Congress cannot force individuals to engage in economic activity.

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March 1 - 15

Washed Away: As Sea Levels Rise, Island Nations Look to the Law to Fend off Extinction
Michael B. Gerrard, the director of Columbia University’s Center for Climate Change Law who co-chaired the conference, says that, for him, one of the takeaway messages was that “the top priority for these islands was to stay there on their islands as long as they can.” Adaptation measures—such as building sea walls, reinforcing coastlines or even building artificial islands to live on—are expensive. But most of the threatened island nations appear on the U.N. list of least developed nations and cannot afford such projects.
MSN MONEY – March 1
On the other hand, says Michael Graetz, a former top Treasury official now teaching at Columbia University's Law School, the election results could mean that "for 'millionaires and billionaires' with more than $250,000 of income, there may be a substantial tax increase."
A recent paper by Curtis Milhaupt, a scholar of comparative corporate law at Columbia Law School, and Li-Wen Lin, a graduate student in sociology at Columbia University, sheds useful light on what they call the “black box” of SOE organization.
As Lin and Milhaupt note, the Chinese system is based on “vertically integrated groups” of large state-owned and related companies. Each group has a “central holding company,” the State-Owned Assets Supervision and Administration Commission (SASAC), which is the majority shareholder in a “core company.” That company, in turn, owns a majority of shares in the state-owned companies that comprise the group, including a finance company that is a source of finance for members.
“There’s a widespread perception that military commissions are tilted strongly against defendants, often based on the assumption that military officers will come down more harshly than federal judges. The record to date tells a very different story,” said Matthew Waxman, a professor at Columbia Law School and a former Pentagon official in the George W. Bush administration. “This plea deal will likely cause discomfort among both hard-line detention hawks and civilian libertarians. The former will see the sentence as too light, and the latter oppose the use of military courts.”
THE NEW YORK TIMES’ GREEN (blog) – March 3
A future without the Indian Point nuclear power plant in Buchanan, N.Y., may be fine or dire, depending on your point of view. Columbia University Law School’s Center for Climate Change Law gathered a few experts on Thursday night to discuss the pros and cons just as the plant is seeking renewal of its federal license amid strong opposition from New York’s governor, Andrew M. Cuomo, and environmental groups.
THE NEW YORK TIMES’ BITS (blog) – March 4
“There was a time when people building things on the Internet didn’t have a dream to be one of the biggest companies out there; their goal was not to be the next General Motors,” said Tim Wu, a professor at Columbia Law School. “But that is all changing. Now you have a battle of cultures on the Web where fun is being chiseled away.”
CNN – March 5
By Matthew Waxman
On Monday, Attorney General Eric Holder delivered a long-anticipated address providing the Obama Administration’s legal rationale for targeted killings of certain al Qaeda suspects - even U.S. citizens. Ever since last fall when the it reportedly killed American-born Anwar al-Awlaki - an al Qaeda terrorist plotter and propagandist - with a drone strike in Yemen, the Obama Administration has faced strong pressure to explain its legal basis for such actions.
This piece also appeared on the Council on Foreign Relations’ website.
FORBES (via MSN MONEY) – March 5
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.
NEWSDAY – March 5
If they appeal Rakoff's $83 million decision, the Mets' owners will have to come up with enough collateral to secure a bond equal to 110 percent of the judgment, said Columbia University law professor John C. Coffee Jr.
A similar news item appeared in AM New York.
"Military commissions have produced sentences or plea deals that are lighter than those typically coming out of federal courts, where terrorism-related sentences are often very severe," said Matthew Waxman, a professor at Columbia Law School and former senior Pentagon adviser on detention issues.
Interestingly, several recent news stories have highlighted both an explosion, and the forced shut down of the Indian Point plant on two occasions in the past few years. At one point in 2010, the state went without power from one of the reactors for 17-days. A similar story appeared in Bloomberg News, but has since been removed from their website. Amidst the debate, the Center for Climate Change Law at Columbia Law School held an interesting forum this past Thursday with a cast of characters who had differing vested interests in the power plant’s future.
Matthew Waxman, a professor at Columbia Law School and a former Pentagon and State Department official, said the Obama administration "has tried to walk some difficult lines." He said Holder was "asserting broad and geographically expansive war-fighting powers while assuring critics that they are limited, justifying actions that remain covert and officially unacknowledged, and promoting government transparency while protecting sensitive intelligence programs and diplomatic relations."
For China's provincial leaders eager to woo overseas investors, a report released on Monday may provide some timely guidance. Using the FDI Performance Index adopted by the United Nations Conference on Trade and Development to discover if areas have received FDI inflows appropriate to their economic power, the report reveals three provincial clusters, according to Karl Sauvant, senior fellow of the Vale Columbia Center on Sustainable International Investment.
CNBC – March 6
According to Daniel Richman, a professor at Columbia Law School in New York, these recorded conversations can help advance an investigation in new ways. “It appears to be remarkably productive in terms of information and leads,” Richman said. “The prosecutions that grew out of those series of wiretaps are not over. This is a very rich mother lode of information, and I imagine that the lesson for the government is that this might be a very productive tactic in the future.”
Matthew Waxman, who teaches law at Columbia University, says neither end of the political spectrum is likely to feel satisfied with the status quo.
"Even if the administration comes forward with further disclosures, many of the details about this operation are going to remain opaque," Waxman says.
Daniel Richman, an evidence professor at Columbia Law School, said the criminal conviction does not guarantee a win in the civil actions. But the verdict could mean that information favorable to the civil cases about the scheme will "shake out," he said.
Columbia Law professor Jeffrey Fagan explained to The Final Call it is not “unconstitutional” for a police officer to put his hands on someone in the course of making a stop. “Cops can legally handcuff someone, for example, if they believe that person has a weapon,” he said. “It would be interesting to know the racial breakdown of those stops that don’t end up in use of force.”
SLATE – March 7
By Tim Wu
In the media industry, displeasure is often announced with copyright lawsuits. A few weeks ago, Barry Diller and IAC launched Aereo, the “rent-an-antenna” service that brings broadcast TV to your desktop—with a DVR service to boot. At the time, I pointed out that the service was a legal innovation as much as it was a technological one, and that it remained to be seen whether the networks, which have usually defended their turf from such newcomers, would take kindly to the arrival of Aereo.
We often hear of the ‘Americanisation’ of abortion politics in the UK, but unpicking the substantive threats to women’s reproductive rights in the USA can be a challenge. In the 2012 BPAS public lecture in London on 7 March, Carol Sanger, Professor of Law at Columbia Law School and a leading international scholar in the regulation of abortion, motherhood, and family, explored the current state of abortion politics in the USA and reflected on what lessons can be drawn by those keen to protect women’s reproductive autonomy in the UK, at a time when abortion appears increasingly politicised.
By Michael Gerrard
Environmental impact state-ments (EISs) examine the effect of the proposed action—typically a construction project, but sometimes a government policy or other activity—on the environment. However, increasing attention is now devoted to looking in the other direction—at how changes in the environment might affect a project.
The Columbia Law School Sexuality and Gender Law Clinic helped draft a law, recently passed by the Key West City Commission in Florida, that requires contractors who wish to enter the city's competitive bid process to offer employees with domestic partners the same benefits as married employees.
"Right now there is often great inequality where employees with spouses make more money than employees with domestic partners when you take into account benefits such as health insurance," said Suzanne B. Goldberg, the clinic's director. "Here, the community exercises its authority to say companies must treat their employees equally."
The lack of physical construction may not be an issue due to Gov. Andrew Cuomo’s stated opposition to Indian Point, said Michael B. Gerrard, director of the Center for Climate Change Law at Columbia Law School.
“I think that state energy policymakers are going to try to coordinate the timing of the completion of the new facilities with the closure of Indian Point,” Gerrard said. “So if the state feels that they can’t close Indian Point until the other projects are up and running, that could help ease the path of those other projects.”
"There was a time when people building things on the internet didn't have a dream to be one of the biggest companies out there; their goal was not to be the next General Motors," said Tim Wu, a professor at Columbia Law School. "But that is all changing. Now you have a battle of cultures on the web where fun is being chiseled away."
FORBES – March 12
After rising sea water renders these islands uninhabitable, it will then drive these nations out of existence. Disbursed populations living in legal limbo across the globe will make it nearly impossible to form and administer any form of government, leaving behind an unanchored Diaspora state. And even if a population from an individual nation flocks to a concentrated area, it will be “profoundly difficult to maintain a culture” in a new environment that barely resembles the abandoned homeland, explained Michael Gerrard, director of the Columbia Law School Center for Climate Change Law.
By Menachem Rosensaft
Reacting to the inclusion of the "white nationalist" anti-immigration activist Peter Brimelow on a panel on "The Failure of Multiculturalism: How the Pursuit of Diversity Is Weakening the American Identity" at this year's Conservative Political Action Conference (CPAC), Ed Schultz observed on MSNBC's The Ed Show that, "We've come to expect CPAC to bring together the far righties. But even CPAC should draw the line somewhere."
By Jagdish Bhagwati
So much has been written, by so many, against the muddled ideas that have now overwhelmed good sense on trade policy in the US government that one wonders whether there is anything left to say. Yet it is worth recalling what French politician Pierre-Joseph Proudhon reportedly told Russian intellectual Alexander Herzen: "And do you imagine that once a thing has been said, it is enough? It has to be dinned into people, it has to be repeated over and over again."
And what precisely is an emerging growth company? It is any company with annual revenue of less than $1 billion. (That’s “billion,” with a “b.”) “It’s just too broad a definition — every company winds up being an emerging growth company,” said John C. Coffee Jr., a securities law professor at Columbia.
Similar news items appeared on Dealbook and ProPublica.
John Coffee Jr., a professor at Columbia Law School, said it was “logical to place the burden of proving good faith on the defendants since they have the better access to information about their own good faith.”
But India has undergone a “revolution of rising expectations” since the economy was liberalized two decades ago and growth began to take off, Panagariya and fellow Columbia professor Jagdish Bhagwati say.
What can we do to avoid the privacy problems created by third-party storage? Ars Technica talked to Eben Moglen, a law professor at Columbia University and chairman of the Software Freedom Law Center. He argued the only way for users to truly safeguard their privacy is not to relinquish control of personal information in the first place.
John Coffee, a securities law professor at Columbia, is no fan, either. He calls it over-broad and says the claims of job creation are dubious, at best.
JOHN COFFEE: I think some very smart lawyers found a way to gut the federal securities laws without admitting that.
Similar news items and editorials that quoted Professor Coffee’s December Senate testimony on the JOBS Act appeared in publications such as the Guardian, the Huffington Post, Newsday, Nonprofit Quarterly, and PC World.
METRO FOCUS – March 15
“The mess we have now is because politics has paralyzed them [the State legislature], but in the late ’50s and ’60s it was because they couldn’t figure out what the rules were,” said Richard Briffault, a professor at Columbia Law School.


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March 16 - 31


U.S. Supreme Court Justice Ruth Bader Ginsburg, one of the leading sex-discrimination litigators and strategists of the 1970s, says the culture was ripe for legal reforms. "There was a spirit that things were not right and they should be changed," Ginsburg told a symposium at Columbia Law School here in February.
WNYC – March 16
“Immaturity is not a defense to criminal charges,” said Suzanne Goldberg, who teaches sexuality and gender law at Columbia Law School. “Sometimes, unfortunately, college students behave as though immaturity is a defense to criminal charges, and equally unfortunately, sometimes colleges and universities treat students who commit criminal acts with kid gloves.”
“The debate in this case was, Was this a stupid college prank or criminal intimidation? And the jury gave a clear answer,” said Suzanne B. Goldberg, a gender law expert at Columbia Law School.
“No one can say that the Justice Department has come out well from this,” said Daniel Richman, a criminal law professor at Columbia University. “The question now is of what significance this is to future reforms.”
NASDAQ – March 19
Shareholder groups had hoped to keep executive pay on the front burner of public debate. "For better or worse, the public uses executive pay as a proxy for understanding whether boards are doing a good job representing shareholder interests," said Robert Jackson, an associate professor of law at Columbia University and a former adviser to the pay czar under the Treasury Department.
This story was also featured on MarketWatch.
REUTERS – March 19
"What we can say about the board is that it had a very unusual structure that raises all kinds of conflicts of interest questions," said Robert Jackson, a governance expert at Columbia Law School. "Having members of the board who are receiving payments from the firm; not only is the CFO on the board, but the CFO came from the board; having a staggered board - you have much less than ideal corporate governance at Diamond."
Edward Lloyd, an environmental law professor at Columbia, noted that billions of dollars worth of home loans are made directly or underwritten each year by Fannie Mae, Freddie Mac, the Federal Housing Administration and the Veterans Administration. He said those lenders might feel compelled by the Agriculture Department’s decision to study their own policies.
Judge Mann produced her map with assistance from a redistricting expert at Columbia Law School, Nathaniel Persily. They did not take into account the residences of incumbent lawmakers, and their proposal drew praise from government watchdog groups for its compact, common-sense districts.
USA TODAY – March 20
Republican donors "are either trying to resolve the nomination fight faster by helping Romney knock out his opponents or they consider the nomination fight resolved and they are aligning behind the person they think is the winner," said Richard Briffault, a campaign-finance expert at Columbia Law School.
Tim Wu, a law professor at Columbia University, agreed in his testimony that putting more spectrum in Verizon’s hands would affect “the very competitive structure of the communications market,” raising the specter of a “creeping duopoly” of Verizon and AT&T.
George P. Fletcher, one of the leading criminal law scholars in the United States and the Cardozo Professor of Jurisprudence at Columbia University Law School, also argues that “racial fears invariably infuse routine judgments in American society about what kinds of acts constitute a serious danger or what kinds of violent responses should be regarded as reasonable acts of self-defense.” It then follows that racial stereotyping about “who commits crime” in our society draws no distinction between the guilty and innocent if they share the same phenotype, before pulling a fatal trigger and claiming self-defense.
THE NATION – March 21 (print – April 9)
By Patricia Williams
It’s an interesting time to ponder the meaning of life and death in the eyes of the law. On one hand, Christian conservatives increasingly seek to sacralize embryos from the moment of conception. On the other, the Supreme Court just heard a case that, among other things, considers the extent to which the corporeal death of a parent is really the “end of the line” with regard to “survivor” benefits for children conceived by artificial insemination from the frozen sperm of a deceased father. On one hand, Citizens United granted First Amendment rights to corporations that are identical to—and some would say exceed—those of natural persons; on the other, the Second Circuit recently ruled that individuals, but not corporations, can be sued for human rights abuses.
Mohandas K. Gandhi and B.R. Ambedkar were the men of the hour at Columbia University on Tuesday evening.
An audience of hundreds packed the rotunda of the historic Low Library for the lecture, “Reconciling Gandhi with Ambedkar,” hosted by the Columbia Law School Dr. B.R. Ambedkar Chair in Constitutional Law. Jagdish Bhagwati, a Columbia professor and leading Indian economist, introduced historian Ramachandra Guha of the London School of Economics, who went on to detail a complicated yet complementary relationship between two of India’s dynamic founding fathers.
Tim Wu, the Columbia law professor who coined the phrase "network neutrality," agreed. The deal, he said, "affects the very competitive structure of the communications industry." Over the last decade, Verizon has been Comcast's strongest competitor, and Verizon's new LTE network represents the most promising wireless alternative to a traditional wired broadband connection. But, he said, closer cooperation between Verizon and Comcast will reduce competition between the two firms.
Similar news items appeared in CIO, the Deal Pipline, and PC Advisor
AP NEWS via USA TODAY (video) – March 22
Jeffrey Fagan, a Columbia University professor of law, says the expansiveness of Florida's 'Stand Your Ground' law could cause problems for prosecutors and law enforcement officials trying to determine the credibility of evidence and witnesses.
We'll deconstruct the case against Dharun Ravi and discuss its implications for the future of hate crimes law, cyber law and bullying with DANIELLE CITRON of the University of Maryland's Francis King Carey School of Law and SUZANNE GOLDBERG of Columbia School of Law.
PINKNEWS – March 23
Among the groups advocating for Ms Atala, Columbia Law School’s Sexuality and Gender Law Clinic submitted a brief to the Court from 60 experts on sexual orientation, gender and family law from around the world. It pointed to an increasing acceptance globally that whether or not a parent is gay is irrelevant in determining the best interests of a child. The brief also argued that denying lesbian and gay parents custody of their children violates the rights of both children and parents to live freely without discrimination.
Suzanne B. Goldberg, a Professor of Law and director of the Sexuality and Gender Law Clinic said: “The Inter-American Court’s decision vindicates the American Convention’s basic promise of equality and non-discrimination and makes clear that lesbian and gay parents have and deserve these important human rights protections.
Columbia University Law School professor, and columnist for The Nation magazine, Patricia Williams discusses the difficulties when perceptions of threats are protected under the law--in the context of the Trayvon Martin case and the Stand Your Ground law in Florida as well as in the Dharun Ravi conviction.
Matthew Waxman, a Columbia Law School professor and formerly the top detainee policy official at the Pentagon during the Bush administration, said the delay risked undermining the ability of military prosecutors to secure other plea bargains.
“Plea deals, including transfer to a home country, can be a very useful tool for the government,” Professor Waxman said. “But these bargains depend on the credibility of the governments’ offers. The less detainees can count on the governments to follow through, the less inclined they’ll be to accept such arrangements.”
“Insider trading prosecutions have always had a particular allure for US authorities. Even in a market dominated by institutional investors, the idea of a ‘fair playing field’ is politically potent and has real courtroom appeal,” says Daniel Richman, a Columbia University law professor.
BLOOMBERG – March 28
The likelihood that Strauss-Kahn’s argument will prevail is “slim to nil,” said Sarah H. Cleveland, a professor of human and constitutional rights at Columbia Law School in New York and an expert on international law.
Librarians and educators attending two panel sessions at Columbia University on Tuesday were told that they must employ fair use in a reasonable and robust manner in order to avoid deforming their mission to advance knowledge. The event, which was organized by the university’s Copyright Advisory Office under the direction of Kenneth Crews, brought together a range of experts who urged the audience to use rational risk management when making decisions about fair use, and to embrace their rights even though the copyright legal landscape is often ambiguous. In fact, as James Neal, Columbia’s university librarian, said: “Ambiguity is our friend.”
So you'll have your Xbox, you'll see that you can watch, I don't know, Cheers through Netflix or Comcast. Netflix will count against your monthly limit, Comcast won't. Columbia law professor Tim Wu, the guy who first coined the term net neutrality, says Comcast is tipping the playing field.
“The whole idea of net neutrality is to try and guarantee that similar content gets treated similarly,” Wu says, “and if you think about it for a second, if something doesn’t count against your cap, obviously it's getting a preferential treatment. You're more likely to stream that instead of someone else's.”
A news item citing this interview appeared on CNET on April 2, 2012.
"This is the electronic equivalent of someone writing a letter to the editor," John Coffee, a professor at Columbia Law School, said in an interview. "You are rewarded by publication, not by payment."

“I think there is widespread understanding of the close linkage between climate change and politics,” wrote the Andrew Sabin Professor of Professional Practice and Director of Columbia’s Center for Climate Change Law, Michael B Gerrard, in an email to Minivan News. “However, in few places other than the Maldives is there such a close linkage between climate change and democracy itself.”


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