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August 2013

August 1-15

International Herald Tribune—August 1

These laws are cloaked in the language of two-week increments, rather than banning abortion at conception or other more radical measures,” said Suzanne B. Goldberg, the director of the Center for Gender and Sexuality Law at Columbia University. “They are cutting back on women’s constitutional rights, but less dramatically, so they trigger less alarm across society.”
 
This article also appeared in The New York Times and many other outlets.
 
The Washington Post—August 1
John C. Coffee Jr., a professor at Columbia Law School, said a question still remains: “Why didn’t they go after someone important and not this sacrificial lamb?”
 
Similar articles appeared in other outlets including USA Today.
 
The Globe and Mail—August 1
The real reason Canadians have faced higher prices and three-year contracts is that the Big Three form a largely unregulated oligopoly. They have acted to prevent competition by buying up “disruptive” players (innovators such as Microcell), or stopping new entrants from gaining a foothold (the case now with Wind, Mobilicity and Public Mobile.) It all smacks of “parallel exclusion,” which Columbia University law professor Tim Wu describes as “efforts by an entire industry to keep out would-be newcomers.”
 
Truth on the Market—August 1
By Tim Wu
I personally believe that a policy statement on Section 5 would be a very good thing for the Federal Trade Commission, especially over the long run.  I think it would strengthen the agency, renew its distinct sense of purpose, and clarify the jobs of the attorneys who enforce the competition laws on a day-to-day basis.  And so, while there is some possibility that Josh Wright & I may disagree on aspects of substance, on the principle of having a policy statement, we agree entirely.
 
The Christian Science Monitor—August 2
"The big picture concern is that the DOJ seems to be showing some interest in Apple's app platform," says Scott Hemphill, a law professor at Columbia University. While the company usually keeps 30 percent of the revenue made from purchases in the App Store, the DOJ would require Apple to link to other stores' prices free of charge. "The government did not allege in the case [against Apple that its] prohibition on links [to outside sites] was an anti-competitive act in the first place," Mr. Hemphill says. Tacking on this condition in the proposal could be a signal that the DOJ has taken interest in the wider question of how the App Store operates. 
 
The Washington Post—August 2
“The policy of Apple’s iTunes business is not at issue in the litigation, but I don’t want to suggest that it is out of bounds,” said Scott Hemphill, a professor at Columbia University Law School. “Here, the DOJ has asserted that price competition has been deeply disadvantaged by Apple’s and the publishers’ conduct and they see the apps proposal as a way to jump-start and restore competition where it was stopped for a while.”
 
The Wall Street Journal—August 2
"Business tax reform is harder because of the growth of large partnerships, and reform for individuals means cutting popular tax breaks," says Michael Graetz, a former Treasury Department official now teaching at Columbia University Law School.
 
The Wall Street Journal—August 2
Crooked officials in cities across the globe, from Denver to Dakar to Dhaka: There are new eyes upon you. The New York City Department of Investigation and Columbia Law School announced the establishment of the Center for the Advancement of Public Integrity, which will study corruption at the municipal level around the world. “To be a force for good, government has to be honest and free of corruption,” said David Schizer, dean of the law school, in a statement. “Nothing is more important than advancing integrity in government.”
 
City Journal—August 4
The wave of bad borrowing led some states to tighten restrictions even more. Even as reformers made progress, however, courts began to sign off on government evasions of debt limits. As a consequence, such limits “have had only a modest effect on aggregate state and local debt,” writes Columbia Law School’s Richard Briffault. Judges, he notes, “appear to share with state governors and legislators a belief in the legitimacy of the modern activist state.”
 
Time—August 4
For the International Court of Justice, it would be impossible to even consider the case, much less rule on it. Anthea Roberts, professor of law at Columbia Law School, explains: When it comes to contentious cases, the International Court of Justice only has jurisdiction to hear claims that are brought by one state against another state. As this claim is not brought by a state, the ICJ would lack jurisdiction over it.
 
Similar articles appeared in The Daily Mail, The Huffington Post and many other publications.

The Wall Street Journal—August 4
The SEC's victory in the case against Mr. Tourre "confirms the validity of the original Goldman Sachs settlement," said John Coffee, a law professor at Columbia University.
 
European Voice—August 4
Here is some unfinished business. European Voice reported at the end of July that Anthony Luzzatto Gardner, a lawyer turned financier, has been lined up to become the next United States ambassador to the European Union. You can find out more about him here. An item in our Entre Nous section gave more details about his father, Richard Gardner, who was the US ambassador to Italy in 1977-81, and to Spain in 1993-97, and before, after and in between was a professor at Columbia law school in New York.
 
Brooklyn Daily Eagle—August 5
New York City Department of Investigation (NYC DOI) Commissioner Rose Gill Hearn and Columbia Law School’s Dean David M. Schizer announced the establishment of the Center for the Advancement of Public Integrity to study corruption and accountability in government. The Center will expand research into corruption at the municipal level in jurisdictions around the world.
 
Fox Business Network (Countdown to the Closing Bell)—August 5
Mashable Senior Editor Pete Pachal and Columbia School of Law Professor Scott Hemphill on the Administration vetoing the ITC’s ban on certain Apple products.
 
IP Watch—August 6
Also the Kernochan Center for Law Media and the Arts of the Columbia University School of Law stressed that fair use flexibility “in many instances comes at the cost of certainty and predictability,” while individual actors “need to know whether their particular plans will run afoul of the law.” The Kernochan submission follows a paper posted by Infojustice in response to a previous report by the Center (IPW, Copyright, 30 July 2013).
 
World Politics Review—August 6
By Lisa Sachs
The small island-state of Timor-Leste exemplifies the challenge of resource-based development for a poor country well-endowed with a valuable natural resource.
 
Bloomberg Businessweek—August 7
“The substance of white-collar crime is getting your hands on data,” John Coffee, a law professor who specializes in corporate governance at Columbia Law School in New York, said in a telephone interview. “If you can get your hands on 1 million e-mails or phone calls, you will likely find something interesting.”
 
This article appeared in multiple publications, including La Republica.
 
The Huffington Post—August 7
By Kimberlé Crenshaw and others
Two weeks after George Zimmerman's trial in the death of Trayvon Martin ended in acquittal, Juror B29, the only woman of color identified as Maddy, says George Zimmerman got away with murder, while Juror B37, a white woman, believes he did nothing wrong. Both agree that race played no role in the case. Doesn't this settle the issue of whether race was involved in this case?
 
Bloomberg—August 8
“It is unprecedented that the Department of Justice has seriously considered criminal indictment of a major bank and I question whether it truly is,” said John Coffee, a professor at Columbia Law School in New York. “You can often bring dual investigations, civil and criminal, in order to maximize pressure for a global civil resolution.”
 
Democrat and Chronicle—August 8
Daniel Richman, a law professor at Columbia Law School and an expert in sentencing, called Santana’s reduction in prison time “dramatic,” but he added that judges like Karas, who are also former prosecutors, can be particularly sensitive to the “complexities of cooperators’ sentencing.”
 
National Mortgage Professional—August 9
“You can often bring dual investigations, civil and criminal, in order to maximize pressure for a global civil resolution,” said Professor John Coffee of Columbia Law School.
 
The New York Times—August 10
“The New York Times would be very attractive to a Google,” said Scott Hemphill, a professor at Columbia Law School who specializes in intellectual property and antitrust law. And Google should be attractive to The Times, he said, since “The Times can never replicate Google’s scale and experience in advertising technology.” A newspaper, Professor Hemphill said, “is a natural partner for a Google, even more than for Amazon.” Other nontraditional potential partners might be Facebook, Microsoft or Yahoo, he added.
 
This article also appeared in The International Herald Tribune.
 
The Week—August 10
A study by Columbia Law School's Human Rights Institute estimates that 98 per cent of drone strike casualties are civilians (50 for every “suspected terrorist”)!
 
Institute for New Economic Thinking—August 10
According to Institute for New Economic Thinking grantee Katharina Pistor, economists still conceive of law too narrowly, mainly as a means to reduce transaction costs and protect investors. With her grant from the Institute, Pistor, a professor at Columbia Law School and the director of Columbia Law’s Center on Global Legal Transformation, developed a Legal Theory of Finance (LTF) that makes big strides in filling this blind spot.
 
Corporate Board Member—August 12
Fellow professor Jeffrey Gordon, co-director, Millstein Center for Global Governance and Corporate Ownership, Columbia Law School, said he is puzzled as to why boards have given in on governance proposals. “How can we defer to you and trust you if you don’t stand up for what you think is best? Explain and defend your position rather than take the path to agree with shareholders.”
 
The Hill—August 12
Public Citizen notes that three critics of major Wall Street firms were included on the panel — two professors and the vice president of the National Council of La Raza. But they also found that one of those professors, John Coffee of Columbia, has since resigned.
 
Bloomberg Businessweek—August 12
The U.S. may announce charges as early as this week against former London-based JPMorgan Chase & Co. employees related to allegations they tried to conceal losses last year, a person familiar with the matter said. Columbia University Professor of Law John Coffee speaks with Erik Schatzker on Bloomberg Television's "Market Makers."
 
Time—August 12
The bigger problem, Columbia University Law Professor Elizabeth Scott says, is the nature of Ballew’s justification. “The judge made it clear that her primary motivation was religious … the child’s name offended her Christian beliefs,” she says via email. “Thus her decision violates the First Amendment.”
 
Lawfare—August 12
By Matthew Waxman
The President says that he has ordered a review of NSA surveillance programs, and one of the challenging aspects of such review will be establishing metrics of success and value.  This is a common challenge with regard to national security policies and intelligence, because “success” is often marked by non-events. 
 
The New York Times—August 12
“In some cases, the monitors will write the policies; in other cases they say to the police department, ‘You write the policies and I’ll review it,’” said Jeffrey Fagan, an expert witness for the plaintiffs in the current New York case.
 
Harper’s Magazine (The Stream)—August 12
And the government’s problems don’t end there. David Pozen, the author of an important recent study of how the U.S. government has historically dealt with leaks, notes that when the government vigorously prosecutes a person who is widely viewed as a legitimate whistleblower, it risks “a greater amount of unlawful disclosures, or at least a greater amount of destructive disclosures” as a result.
 
Time—August 13
Long before Monday’s ruling, critics have questioned the tactic’s effectiveness in deterring crime. “There’s no evidence that stop and frisk actually is effective,” says Dr. Jeffrey Fagan, a professor of law and public heath at Columbia University. “It’s a difficult social science question to answer, but so far, nobody has come up with any evidence to suggest that it is.”
 
The New Yorker—August 13
So, in addition to examining nineteen individual cases, with testimony from those involved, Judge Scheindlin relied heavily on some statistical analysis carried out by the plaintiffs’ chosen expert, Dr. Jeffrey Fagan, a criminologist at Columbia Law School who has long taken an interest in policing issues.
 
Similar articles appeared in multiple other outlets, including The American Prospect and The Washington Post.
 
Bangor Daily News—August 13
The Millstein Center for Global Markets and Corporate Ownership at Columbia University Law School and the Investor Responsibility Research Center Institute (IRRCI) picked a perfect time to seek papers and research on the potential misuse of stock prices in public equity markets.
 

The Triangle Tribune—August 14

“The idea of allowing the legislature to just go running into court is a guaranteed way to result in lots of flailing-around lawsuits, and is just using the courthouse to continue the legislative session, which to my way of thinking is a very bad idea,” said former Maine Attorney General James Tierney, who now runs the National State Attorneys General Program at Columbia Law School.
 
BBC—August 14
Mr Iksil "has several emails in which he tells his superiors that the losses are getting horrific that he can't keep hiding it anymore", Columbia University professor John Coffee told the BBC. "That is exactly contrary to the intent you would need for securities fraud," he said. "Remember it's not a crime to make a terrible losing trade."
 
The New York Times—August 14
Tim Wu, the Columbia Law School professor and frequent Morozov target, writes that the book was more of the same and that his attacks appear to be “mainly designed to build Morozov’s particular brand of trollism; one suspects he aspires to be a Bill O’Reilly for intellectuals.”
 
This article appeared in multiple outlets, including The International Herald Times.
 
City Journal—August 15
As Columbia Law School’s Thomas Merrill and David Schizer conclude in a study of shale regulations, “there is little evidence so far that subterranean fracturing activity can directly contaminate groundwater, and this risk may never materialize. The layer of shale that is fractured is usually thousands of feet below the water table, with a buffer of dense rock or clay in between.”
 
Fierce GovernmentIT—August 15
The nature of cyber attacks makes it likely that the threshold for triggering a military response to one will be higher than a kinetic equivalent, says Columbia national security law professor Matthew Waxman in a paper published by the Naval War College.
 
Lawfare—August 15
By Matthew Waxman
Like David Remes, but with different assumptions and for different reasons, I was disappointed with Senators Durbin and Feinstein’s op-ed purporting to offer a plan for closing Guantanamo.

 

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August 16-31

Roll Call—August 16

A nationally recognized attorney who counsels corporate boards on governance issues has suggested corporations that give money to trade associations require more disclosure from the trade associations on their political activity. Ira M. Millstein, senior partner at Weil, Gotshal and Manges, is the founder of the Millstein Center for Global Markets and Corporate Ownership at Columbia Law School.
 
The Root—August 16
The answer to that riddle can be found largely in one place: data crunched by Jeffrey Fagan, a Columbia University professor whose research has now made long-standing complaints of millions of black and Latino men an objective reality.
 
This article appeared in other outlets, including Newsday.
 
Lawfare—August 18
By Matthew Waxman
Raha Wala of Human Rights First has written in with an in-depth response, printed below in full, to my post the other day expressing disappointment in Senators Durbin and Feinstein’s op-ed on closing Guantanamo.  I had argued there that Durbin and Feinstein weren’t even acknowledging — put aside answering — some of the toughest questions involved in such an effort.
 
Mother Jones—August 19
If the FCC could be convinced to hand over some of those powerful frequencies to the public, meshes could span huge distances. "We need free networks, and we need free bandwidth," says Eben Moglen, a law professor at Columbia University and head of the Software Freedom Law Center. But given the power of the telco and defense lobbies, don't hold your breath.
 
NPR (All Things Considered)—August 19
w/Professor Michael B. Gerrard
 
The New York Times—August 19
“This is evidence of a tougher policy,” John C. Coffee, a securities law professor at Columbia University, said about Monday’s settlement. “This is a case where the S.E.C. should have been greatly embarrassed by original settlement.”
 
This article appeared in many other outlets that carry New York Times content. Similar articles appeared in other outlets, including The New York Post.
 
The Daily Herald—August 20
Each year, the Project recognizes the outstanding contributions of a single individual to the field of property rights scholarship and awards the Brigham-Kanner Property Rights Prize. The 2013 Brigham-Kanner Property Rights Prize will be presented to Thomas W. Merrill, the Charles Evans Hughes Professor at Columbia Law School.
 
The Wall Street Journal—August 18
Brad Greenberg, an intellectual property and media law researcher at Columbia University Law School, told Law Blog by email that the new version provides “more clarity,” but said the bill language still has problems. It’s not clear, he said, how it would handle situations in which the explicit videos or images were recorded by the victim.
 
Brad A. Greenberg is an intellectual property fellow at the Kernochan Center for Law, Media, and the Arts.
 
The New York Times (Dealbook)—August 19
“This is evidence of a tougher policy,” John C. Coffee, a securities law professor at Columbia University, said about Monday’s settlement. “This is a case where the S.E.C. should have been greatly embarrassed by original settlement.”
 
The New York Times—August 20
“Of the Democratic appointees, he is more of a centrist than most,” said Daniel Richman, a Columbia professor who specializes in criminal law.
 
This article was also cited in Esquire and appeared in other outlets that carry New York Times content.
 
The Wall Street Journal—August 20
"It's not unusual for there to be significant turnover, particularly with a new chairman," says Harvey Goldschmid, an SEC commissioner from 2002 to 2005. Officials recruited by the departing chairman, such as division heads, tend to follow their boss out the door. Mr. Goldschmid, the former SEC commissioner and now a Columbia University law professor, says she lured "strong" people while U.S. Attorney in Manhattan and a partner at law firm Debevoise & Plimpton LLP.
 
The Wall Street Journal—August 20
John Coffee, a law professor at Columbia University who studies white-collar crime and securities fraud, said the Obama administration "has been appropriately criticized for being excessively equivocal and slow to respond'' to the financial crisis. But he said Mr. Holder's remarks suggest "he is responding to the temper of the times.''
 
The Washington Post—August 20
Such incidents have real costs. Columbia Law School’s Jeffrey Fagan, Yale Law School Tracey Meares and NYU’s Tom Tyler note that there’s a huge research literature showing that perceptions of police legitimacy matter for crime rates — in part because, for police to actually solve crimes, the community needs to want to work with them.
 
USA Today—August 20
Fifty years later, progress has been "breathtaking and unimaginable," in the words of civil rights lawyer Ted Shaw, who can recall his mother bringing home the handbill from the march. But blacks still are victims of income inequality, housing segregation and inadequate educational opportunity. "It's the best of times and the worst of times," said Shaw, former president of the NAACP Legal Defense and Educational Fund and a professor at Columbia University School of Law.
 
This article appeared in other outlets that carry USA Today content, including The Daily Times.
 
New York Magazine—August 21
To be more confident in these findings, though, you would like to be able to control not merely for the demographic conditions of a neighborhood, but for the other policing interventions that tend to go along with the stops — for arrests, for summonses, and for the mere presence of cops on the street. (Each of these interventions likely has some effect on crime on its own, independent of stops and frisks.)  Jeffrey Fagan, of Columbia Law School, is trying to do this. His study is not yet final, but so far, he said, it seems that stop-and-frisk, if properly isolated from the other components of policing, may actually increase crime rather than decrease it.
 
The New York Times—August 21
Does India simply need more time for growth to work its magic, or is there something fundamentally wrong with its formula? Do improvements in health and literacy create growth or simply derive from it? … Those are some of the questions behind an unusually nasty fight between two of this nation’s greatest economists. It is a fight that has echoes in poor countries across the globe. The battle between Amartya Sen, a Nobel Prize winner and Harvard professor, and Jagdish Bhagwati, an eminent professor at Columbia University, has broken out just as India’s economy seems to be coming undone.
 
Similar articles appeared in multiple outlets, including ACQ Magazine.
 
SNL—August 21
On the other hand, legal expert Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School and senior counsel at Arnold & Porter LLP, said he does not expect a flood of such cases to come forward. He said it is difficult for plaintiffs to establish causation and misconduct. Nevertheless, he said the ruling is precedential and will certainly be cited by plaintiffs who bring future common law nuisance claims if anyone raises a pre-emption defense.
 
NPR (All Things Considered)—August 22
Columbia University law professor John Coffee concurs. "There have not been more than a handful of criminal prosecutions, and most of them have involved small mortgage banking operations and not major investment banks," he says.
 
New York Law Journal—August 23
Columbia Law School has teamed with New York City's Department of Investigation to establish the Center for the Advancement of Public Integrity. The center will study corruption and accountability in government. In particular, it will research corruption at the municipal level in jurisdictions worldwide.
 
The New York Times—August 26
Law firms are vying to recruit law partners with international experience, and law schools like Columbia University’s are adding graduate courses in the field, said George A. Bermann, who teaches arbitration at Columbia and is director of its new Center for International Commercial and Investment Arbitration.
 
This article also appeared in the International Herald Tribune.
 
The New York Times—August 27
“This is a somewhat heroic story because these plaintiffs just kept fighting and fighting,” said John C. Coffee Jr., a professor at Columbia Law School. “This is like a triple-overtime win.”
 
This article appeared in multiple outlets that carry content from The New York Times, including Columbus C.E.O.
 
CNBC—August 27
"Every estate wants to lowball the value of assets," said Alex Raskolnikov, a professor at Columbia Law School, who specializes in tax law. "The amount of tax an estate has to pay is based on the value of the assets."
 
This article appeared in other outlets that carry NBC content, including NBCNews.com.
 
Lawfare—August 27
By Matthew Waxman
For anyone interested, I’ve posted to SSRN my draft article, forthcoming in the Yale Law Journal, titled “The Constitutional Power to Threaten War.” 
 
WNYC—August 28
“I think his office has had a troubling readiness to double down on cases before appropriately looking into the challenges to the convictions,” said Daniel Richman, a professor of law at Columbia University and a former federal prosecutor. But Richman also credited Hynes with creating drug treatment alternative to prison programs and championing re-entry programs and community courts. These efforts, he said, have put Brooklyn at the forefront.
 
Courthouse News Service—August 28
Statistics from Columbia University professor Jeffrey Fagan show that the roughly 80 percent of the 4.4 million stops made between 2004 and 2012 targeted black and Latino New Yorkers and visitors, Scheindlin said.
 
Democrat and Chronicle—August 28
In most places, it would be illegal if employees were coerced to make a contribution or if they were reimbursed for the donation, Richard Briffault, the Joseph P. Chamberlain professor of legislation at Columbia Law School, said.
 
Forbes—August 28
Of all the people I have come across while researching a book on the business of personal data, I don’t think I have met anyone who takes more Internet and email security precautions than Eben Moglen.  A professor at Columbia Law School, Moglen also serves as the leader of the Software Freedom Law Center which embraces the idea of free and open source software.
 
Headlines and Global News—August 28
Professor of law at Columbia University Matthew Waxman said that the United States might try using a moral backing for reasons of intervention.
 
Similar pieces were published by Lawfare and the Council on Foreign Relations.
 
Bloomberg TV—August 29
Jagdish Bhagwati, a professor of economics at Columbia University and author of "Why Growth Matters: How Economic Growth in India Reduced Poverty and the Lessons for Other Developing Countries," talks about India's economy.
 
Reuters (subscription required)—August 29
In what may be a sign of the times for the legal industry, Columbia Law School is offering a first-of-its kind course on how to broker a law firm merger. Law schools have long included business of law courses in their curricula, but this
appears to be the first course that squarely takes on the business and cultural
challenges of combining two major law firms.
 
The Hill—August 30
A number of environmental and animal welfare groups are suing the Obama administration for dropping a rule expanding federal oversight of industrial livestock farms…The case is being handled by the Columbia University School of Law’s Environmental Law Clinic.
 
Financial Times (subscription required)—August 30
Banks get ready to feel the penalty pain
"You see somewhat of a stiffening of the DOJ and SEC posture in some of these cases," says Daniel Richman, a former federal prosecutor and now professor of law at Columbia University. "Some of it is in response to the facts in the investigation, some might be in response to the criticism of insufficient zeal."

The Verge—August 30
"I’m sympathetic to their argument," says Columbia Law professor and former Supreme Court clerk David Pozen, "and I'm skeptical that the Supreme Court will endorse it."
 
The New York Times—August 31
"I think he's got an uphill battle," said June M. Besek, executive director of the Kernochan Center for Law, Media and the Arts at the Columbia University School of Law. "It's really a statute of limitations issue. He could be depicted as someone who did not conscientiously pursue his rights."
 
This article also appeared in other outlets that carry content from The New York Times, including The Hamilton Spectator.
 
NPR—August 31
But saying it's the right thing to do doesn't necessarily mean it's legal under international law, say Matthew Waxman, a senior state department official in the George W. Bush administration, now a professor at Columbia Law School.
 
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