December 2013

December 1-15

Harvard Law Review—December 2013
Professor David Pozen has written an absolutely stellar account of the uses, meanings, and regulations of leaks of secret information by government officials. At the most general level, Pozen argues that the United States’s apparently chaotic system of leak regulation — draconian penalties that are almost never imposed; threats to punish leakers but not publishers — masks a deeper logic.
Business Standard—December 1
The recently announced National Food Security Act, 2013 will prove to be counterproductive for the ruling United Progressive Alliance (UPA) government, according to renowned trade economist and professor of economics and law at Columbia University Jagdish Bhagwati.
The Washington Blade—December 1
Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, said the plaintiffs would be in a stronger position in the case if they sought recognition and then alleged in their amended complaint that the recognition was denied. “If the couples had asked for recognition and been denied, the court would not have dismissed the suit on the same grounds,” Goldberg said.
This story was picked up by other outlets, including the Seattle Gay News.
Compliance Week—December 2
The push for political spending disclosures initiated with a Petition for Rulemaking filed by a team of 10 prominent law professors. Robert Jackson, an associate professor at Columbia Law School, and Harvard Law School Professor Lucian Bebchuk spearheaded the effort in 2011.
Economia—December 3
By Katharina Pistor
In the wake of the 2007-2008 financial crisis, the world’s central banks played a critical role in rescuing the global financial system. They stepped in when private markets froze, acting as lenders and dealers of last resort, and provided additional liquidity to grease the wheels of finance.
Other newspapers around the world published this commentary.
The New Republic—December 4
By Tim Wu
Given all the faces you see glued to computers, tablets, and cell phones, you might think that people watch much less television than they used to. You would be wrong. According to Nielsen, Americans on average consume nearly five hours of TV every day, a number that has actually gone up since the 1990s.
Wu’s piece was also picked up by Time and The Verge.
The New York Law Journal—December 5
"The problem today is that the Parole Board often acts as if it were…responsible for sentencing," said Columbia Law School Professor Philip Genty. "It simply reexamines the underlying crime and history—factors that will never change."… "Rather than focusing on who a person was in the past, the board must acknowledge the person's capacity for significant change while incarcerated, and give appropriate weight to the extent of an individual's rehabilitation," Genty said.
Similar stories appeared in other outlets, including Capital New York.
Wyoming Tribune Eagle—December 5
Richard Briffault is a Columbia University Law School professor and campaign finance expert. He said super PACs offer many advantages compared to direct-to-candidate donations… Briffault said super PACs have become increasingly common and influential since 2010. That is when the U.S. Supreme Court ruled that unlimited donations by these groups are constitutional. “We’ve seen some big super PAC spending in the last two elections cycles,” he said. “It has essentially become part of the contemporary fundraising process.”
SCOTUSBlog—December 5
By Ronald Mann
An uncharacteristically amenable Court heard argument on Tuesday in Lexmark International, Inc. v. Static Control Components, Inc.   Although the case is from the Sixth Circuit, it is not a state-on-top criminal matter.  Rather, it is an intellectual property/standing case.
Al Jazeera America—December 6
Robert Jackson, a law professor at Columbia University who helped write the original petition asking the SEC to consider a disclosure rule, said he believes it is more likely the agency is overwhelmed with the regulation-writing obligations mandated by Dodd-Frank, the massive 2010 financial regulation bill still in the throes of implementation and by the JOBS Act, passed earlier this year to ease regulations on small businesses.
The New York Times—December 6
Some critics of the department say that the explosion of street stops in recent years can be traced back to the change in policing style that Mr. Bratton spearheaded. “Stop-and-frisk is the problem of proactive policing gone wild,” said Jeffrey A. Fagan of Columbia Law School, who studied the department's stop-and-frisk practices for plaintiffs in the federal suit against the city.
Lawfare Blog—December 7
By Matthew Waxman
As the Obama administration re-energizes efforts to winnow the Guantanamo population through transfers to other countries, it will be squeezed from many sides — including from those who see the transfer arrangements as insufficiently protective of American security as well as those who see them as insufficiently protective of former captives’ rights.

The New York Times—December 9
“For the phone companies,” said Tim Wu, a professor at Columbia studying the Internet and the law, “help with federal spying is a longstanding tradition with roots in the Cold War. It’s another area where there’s a split between old tech and new tech — the latter taking a much more libertarian position.”
BusinessWeek—December 9
“Herbalife and Ackman have been fighting in one theater, and now the warfare has moved into an additional theater,” said John Coffee, professor of securities law at Columbia University in New York. “All’s fair in love and activism,” he said, adding that the tactic of putting pressure on activist investors through their clients is a new one.
Publishers Weekly—December 10
Federal Judge Jed Rakoff has dismissed a lawsuit filed by independent booksellers against Amazon and the big six publishers that alleged a murky conspiracy to restrain trade via Amazon’s use of proprietary DRM in its Kindle e-reading platform. In his 18-page decision tossing the suit, Rakoff found that the booksellers’ core claim—that the publishers had engaged in a conspiracy with Amazon to keep rivals from selling e-books on the Kindle—had no supporting evidence, and no plausible motive.
MSNBC—December 10
Columbia Law School Professor Patricia Williams joined Tom Brokaw to discuss the legacy of Nelson Mandela.
This story appeared in other outlets, including The Nation.
Talking Politics Blog—December 10
Although senior government officials routinely criticize the damaged caused by intelligence leaks in the media, some engage in a similar practice of what [Columbia Law School Professor David] Pozen deems “pleaks.” Pozen coins the term “pleaks” – borne from the idea of planted leaks by government officials – to describe what he deems to be leaks of a “quasi-authorized” character.
The Los Angeles Times—December 11
While some expressed hope that the Volcker rule might set the stage for regulators to try to reduce the size of the nation's largest banks, Columbia University law professor John Coffee said Washington's partisan climate made such an overhaul unlikely.
"We have an absolutely paralyzed Congress," Coffee said. "There is no possibility that the Republicans or even the moderate Democrats are going to want to break up the banks."
The Huffington Post—December 11
By JoAnn Kamuf Ward, Caroline Stover and Douglas Cantwell
Yesterday was Human Rights Day, the anniversary of the adoption of the Universal Declaration of Human Rights.  Around the world December 10th signals recognition of the fundamental idea that all people are born equal in dignity and rights.
Note: Joann Kamuf Ward is Co-Director of the Human Rights Clinic and Associate Director of the Human Rights in the U.S. Project. Caroline Stover ’14 and Douglas Cantwell ’15 are students in the Human Rights Clinic.
The Washington Post—December 11
“Proxy statements are written by lawyers,” said Robert Jackson, a professor at Columbia Law School who has also petitioned the SEC to force companies to disclose their political spending. “These are not meant to provide a clear sense of what’s going on in the company.”
Earth Magazine—December 11
“Every country has its own rules,” says Michael Gerrard, a professor at the Columbia University School of Law who directs the Center for Climate Change Law (he and a colleague laid out some of those rules in the U.S. in an article in Eos in time for the 2012 AGU meeting). Doing fieldwork in Iowa may be a bit different than doing fieldwork in Namibia, he says, particularly when it comes to liability — and it’s worth checking out the situation, politically and scientifically, before going abroad.
The Wall Street Journal—December 11
Douglas Bregman, a Bethesda real estate lawyer, was appointed by the board in June to untangle a thicket of allegations that have caused a lengthy dispute between county officials and members of a community founded by freed slaves.
Note: Douglas M. Bregman is a lecturer.
Journalist’s Resource—December 12
A 2013 article in the Harvard Law Review, “The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information,” provides one of the most comprehensive assessments to date on the role leaks play in American democracy. The author, David E. Pozen of Columbia Law School, combines theoretical perspective with knowledge obtained through interviews with journalists and public officials, as well as through the Freedom of Information Act (FOIA).
Al Jazeera America—December 12
“I think it’s the most absurd outcome I’ve ever heard of, and that’s in a system that is already absurdly imbalanced. It makes a mockery of equality and equal standing before the law,” Patricia J. Williams, a professor of law at Columbia University, told Al Jazeera.
India New England—December 12
A ruling by India’s Supreme Court on Wednesday reinstating a colonial-era law banning gay sex bends “the arc of the moral and legal universe… away from justice,” Columbia Law School Professor Suzanne Goldberg wrote in a response to the decision. The Indian high court’s opinion reverses a 2009 lower court ruling declaring the law unconstitutional.
Other outlets picked up on this story, including the IndUS Business Journal.
SCOTUSBlog—December 13
By Ronald Mann
The Solicitor General on Tuesday urged the Courtto grant review in what could be yet another blockbuster patent case – involving the question of “divided” infringement.  Divided infringement refers to a situation in which the acts necessary to infringe a patent are taken by multiple parties collectively, but no single party takes all the steps necessary to infringe the patent.
Computer Weekly—December 13
June Besek, executive director of Columbia Law School’s Kernochan Center for Law, Media, and the Arts, said the US Internet Archive allowed publishers to use the web's automated "robots exclusion" mechanism to remove their pages from the archive… "That's made people more comfortable with The [US] Internet Archive," said Besek. "It will respect this desire of internet publishers not to be scanned if they don’t want to.”
The Associated Press—December 14
Dean Spade, a transgender law professor spending this year at Columbia Law School, said other pressing issues include high rates of incarceration and poverty among transgender people, as well as violence directed against them. He has questioned why some activists are instead placing a priority on helping transgender people pursue military careers. “We should put our energies into relieving the worst conditions placed on people,” Spade said.
This story appeared in hundreds of newspapers and outlets across the country.
Religion News Service—December 14
The judge’s ruling does not say that Utah has to recognize multiple marriages, said Brad Greenberg, a research scholar at Columbia Law School. The Supreme Court has repeatedly indicated that determining who can marry is almost exclusively the province of the states, he said. “A ban on polygamous marriage does little to deter those who want to enter into multiple marriages, some illegally, and then live together,” Greenberg said.
Note: Brad Greenberg is an Intellectual Property Fellow at the Kernochan Center.
Pando Daily—December 14
In their book “Who Controls The Internet?” Harvard Law professor Jack Goldsmith and Columbia Law professor Tim Wu described eBay’s dystopian transformation from left coast anarcho-fantasy dream into a profit-making machine greased by big government coercion
The Los Angeles Times—December 15
By Jagdish Bhagwati and Francisco Rivera-Batiz
Let's say the improbable happens and Congress passes immigration reform. However it's packaged — one bill or many — you can be sure it will focus on "sticks," not "carrots."
The Washington Post—December 15
There's more to monopolistic behavior than pricing. As Columbia Law professor Tim Wu points out, consumers had been conditioned to expect inconveniences like early termination fees, overage charges, and locked phones for years, until T-Mobile came along and ditched a lot of them.
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December 17 - 31


The Atlantic—December 17
Robert Ferguson, a legal scholar and literary critic who teaches at Columbia Law School, suggested that every justice ought to read a volume of writing by prisoners. (His new book, Inferno: An Anatomy of American Punishment, examines why Americans are so much more eager to punish than citizens of other advanced nations.) "Bell Gale Chevigny's Doing Time: 25 years of Prison Writing is one I use, but there are others," he said. "Most judges have no clue of the hell holes they are sending people into."
This piece also appeared in other outlets, including the ABA Journal.
Voice of America—December 17
National security expert David Pozen of the Columbia University law school in New York also said Monday's ruling by Judge Richard Leon may not be upheld by a higher court, but could influence other legal cases and lawmakers' consideration of the scope of U.S. surveillance. "It kind of further legitimated the notion that the NSA was up to something deeply wrong, and I think may - before the courts ultimately decide on the legality of the program - may actually just help spur Congress to revise the program."
This piece appeared in multiple outlets, including The ChosunIlbo.
Journalist’s Resource—December 18
A 2013 article in the Harvard Law Review, “The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information,” provides one of the most comprehensive assessments to date on the role leaks play in American democracy. The author, David E. Pozen of Columbia Law School, combines theoretical perspective with knowledge obtained through interviews with journalists and public officials, as well as through the Freedom of Information Act (FOIA).
Chicago Tribune—December 18
The distinction between how individuals and corporations are punished for arms export and embargo violations often comes down to what the government believes it can prove, said Daniel Richman, a former federal prosecutor who teaches criminal law at Columbia University.
This piece also appeared in other outlets that carry Reuters content.
The Globe and Mail—December 18
“The government really needs the tech industry to achieve its policy goals,” said Tim Wu, a professor at Columbia Law School. “They tried on their own with the Washington version of tech and we saw what happened.”
Bloomberg News—December 18
“Actavis executives got the best of both worlds,” said Robert Jackson Jr., a Columbia Law School associate professor and former adviser to the Department of the Treasury. “The idea that shareholders should have to pay for executives to not pay taxes has been roundly rejected by institutional investors.”
This piece appeared in other outlets that carry Bloomberg content, including la Repubblica.
The Daily Beast—December 19
“There’s a concern,” says Matthew Waxman of Columbia Law School, who works closely with Anderson, “that a highly automated system where a human is kept in the loop inadvertently becomes an autonomous system.” But in practical terms that is a very hard line to draw.
The Jewish Daily Forward—December 19
Columbia law professor Ariela Dubler has been appointed as the new head of the Abraham Joshua Heschel School. Dubler, who is vice president of the school’s board, will succeed Roanna Shorofsky, at the helm of the liberal school that is considered one of New York’s leading Jewish educational institutions.
The Washington Post—December 19
By Tim Wu
Once upon a time, books about American inventor-founders were invariably reverential. Thomas Edison, Alexander Graham Bell, Samuel Morse and the Wright brothers were depicted as men who lived among us but were unlike us: geniuses with a practical vision, who could see a future that others could not.
International Business Times—December 19
Some people thought that the book was greatly dramatised in several occasions. "Bilton prefers drama and embarrassing stories to strategic or technological details," said Tim Wu, a professor at Columbia Law School, who recently reviewed Bilton's book.
The Wall Street Journal—December 19
C. Scott Hemphill, a professor specializing in antitrust at Columbia Law School in New York, said the Journal's description of the activity in these chat rooms is "troubling, but it's not necessarily bad in a way that antitrust cares about…It's not enough that insiders are communicating in order to disadvantage their customers. A regulator would need to lay out the case for why competition is being harmed."
Council on Foreign Relations—December 19
"The panel did not suggest that the government exceeded its legal authorities," said CFR Adjunct Senior Fellow Matthew Waxman. "But it found that the costs to some surveillance programs were not worth the gains." The president and Congress are likely to approve a number of the recommendations, Waxman says, motivated in part by ensuring public confidence in oversight of intelligence activities.
Foreign Policy—December 20
David Pozen, a law professor at Columbia University, estimates in a forthcoming Harvard Law Review article that fewer than three in a thousand leak violations are actually prosecuted, and the true percentage, if all leaks of classified information could be counted reliably, is almost certainly much closer to zero.
USA Today—December 23
As of yet, there's no idea of how much consumers were harmed, says Columbia Law School professor John Coffee. "We do not yet know if Target was negligent or whether these were very skillful hackers who could have penetrated any system--but those critical factual issues seldom slow the race to the courthouse," he said.
Similar pieces appeared in multiple outlets, including The Des Moines Register.
Slate—December 23
By Nathaniel Frank
Last week, Phil Robertson, the patriarch from Duck Dynasty, a popular reality show on A&E, was suspended from the network for offensive comments he made in a GQ interview. In addition to ignorant, racially insensitive remarks, the interview included a rant that called homosexuality sinful and morally wrong.
Nathaniel Frank is a visiting scholar the Center for Gender and Sexuality Law.
The Fiscal Times—December 23
However, others are more skeptical. Matthew Waxman, an international and national security law expert at Columbia University, said in an interview that the “Losing Humanity” report overstates the risk. "I think it's too sweeping in its conclusions about what future technology will or will not be able to do, and I think it neglects some of the significant costs and risks to preemptively banning all autonomous weapon systems," he said. 
The Japan Times—December 23
Indeed, given that the essence of Facebook’s business is “strip-mining human society,” to use Columbia Law School Professor Eben Moglen’s colorful phrase, it would be surprising if the company viewed any online activity engaged in by its wretched subscribers as lying beyond its corporate reach.
NPR—December 24
A new law lets adopted people in Ohio see their original birth certificates — but opponents say it comes at a cost to the birth parents. Guest host of “Tell Me More” Celeste Headlee takes on the topic with law professor Carol Sanger, birth mother Jodi Hodges, and advocates Adam Pertman and Betsie Norris.
Psychiatric News—December 27
“This is an important effort to refocus the discussion about gun violence on groups that represent high risks for violence, rather than continuing with a misdirected focus on people with mental illness,” said consortium member and former APA President Paul Appelbaum, M.D., the Dollard Professor of Psychiatry, Medicine, and Law at Columbia University College of Physicians and Surgeons, in an interview with Psychiatric News.
War in Context—December 29
As Professor Eben Moglen of Columbia University puts it, the intelligence agencies “presented with a mission by an extraordinarily imprudent national government in the United States, which having failed to prevent a very serious attack on American civilians at home, largely by ignoring warnings, decreed that they were never again to be put in a position where they should have known. This resulted in a military response, which is to get as close to everything as possible. Because if you don’t get as close to everything as possible, how can you say that you knew everything that you should have known?”
The Guardian—December 29
"The reason you see this level of violence is that it works," said Ben Liebman, a professor at Columbia Law School, who has studied dispute resolution in Chinese hospitals. Hospitals were more concerned with avoiding violence than with due process; sometimes they overcompensated patients to pre-empt further protests. "They're incentivised to engage in a level of responsiveness, which in turn incentivises people to engage in a level of unrest," he said.
TaxProf Blog—December 29
David Schizer (Dean, Columbia), A Framework for Limiting Tax Expenditures: Programmatic Incentives, Excess Burden, and Distribution: To rein in unsustainable federal budget deficits, we need to cut spending, raise more revenue, or both. In response, political leaders have begun focusing on an important source of potential savings: repealing or limiting tax expenditures, such as the home mortgage deduction, the exclusion for employer-provided health insurance or other tax provisions that promote “nontax” policy goals. ...
CNBC—December 29
W/ Harvey J. Goldschmid
Columbia University law professor Harvey Goldschmid is a former commissioner and general counsel of the securities and exchange commission.
Huff Post New York—December 30
"There may be more behind the theory here than what appears in this three-page document, but it looks on its face to be an unsubstantiated invocation of the mosaic theory," said Columbia University law professor David Pozen, a widely cited expert on the concept. "This on its face is a pretty bare assertion of potential harm that's hard to argue against -- because it's hard to know what their theory is."
Morning Edition—December 30
JOHN COFFEE: I think both their CEO and their board of directors made a decision that it was - made more sense to be a peacemaker and to accept the penalty than to go down into their bunker and fight the government for several years.
New Jersey Law Journal—December 30
By Taysen Van Itallie
One of the biggest scandals for the nation’s legal profession is its inability to offer accessible, reasonably priced legal services to the middle class.
Taysen Van Itallie is a lecturer.
South Jersey Local News—December 31
Edward Lloyd, a Columbia University law professor appointed to the commission in 2002, said that the MOA is akin to “rearranging the chairs on the Titanic.” He said the standards of the Board of Public Utilities and South Jersey Gas are very clear, but the MOA puts the jurisdiction of the Pinelands Commission in jeopardy. “It makes the commission arbitrary,” he said.
Of Special Note: Media Coverage of Professor Brett Dignam’s Habeas Case
On Dec. 17, Columbia Law School Professor Brett Dignam, Lecturer Elora Mukherjee, and their students in the Mass Incarceration Clinic won a ruling granting federal habeas relief to Scott Lewis, a man who has been imprisoned since he was wrongfully convicted for double murder in 1995. Senior U.S. District Judge Charles S. Haight Jr. ordered that Lewis be re-tried or released within 60 days. Dignam has represented Lewis since 2009 and continues to work on the case, which was the subject of extensive media attention.
The New York Times—December 17
For 14 years, Mr. Lewis represented himself, focusing on the idea that he was framed. In 2009, a professor at Yale Law School, Brett Dignam, took up his case. Professor Dignam, who is now at Columbia Law School, was assisted by students from both schools. A team of eight students joined her in presenting evidence and questioning witnesses during a June hearing before Judge Haight.
Associated Press—December 17
Conn. Judge: Convicted killer’s rights violated
Lewis, who maintains his innocence, was represented by Columbia Law School Professor Brett Dignam and her students.
This article was picked up by multiple outlets that carry AP content, including The San Francisco Chronicle.

The Courant—December 17
Lewis was assisted in his federal habeas corpus petition by Columbia Law School Professor Brett Dignam and her students at Columbia. Dignam, a Milford resident who used to teach at Yale's law school, has represented Lewis since 2009. She said the judge's decision was "proof that the Constitution still works." Forty-eight students have worked on Lewis' case since 2009, and eight participated in the trial. "All eight of them put on witnesses and got documents into evidence," Dignam said. "All of them knew the client and had worked for the client for some considerable period of time. And to have a judge who was so careful and thoughtful and attentive and fair ... was a wonderful experience."
New Haven Register—December 17
Columbia Law School Professor Brett Dignam began representing Lewis in 2009 while a professor at Yale Law School. Dignam said that U.S. District Judge Robert Chatigny reached out to her and asked if she would take Lewis’ complex case…More than 40 Columbia Law School students have worked on Lewis’ proceedings, as well as Elora Mukherjee, who co-teaches with Dignam at the Mass Incarceration Clinic…
FOX CT—December 17
Lewis was assisted in his federal habeas corpus petition by Columbia Law School Professor Brett Dignam and her students at Columbia.
New Haven Independent—December 17
“After 18 years in prison, an innocent man is going to come home,” Brett Dignam (pictured) told the Independent Tuesday… Dignam said she drove to MacDougall-Walker Monday to deliver a print-out of the judge’s ruling to Scott Lewis in person. “So, you’ve got good news?” Lewis asked her when they met in one of the jail’s two attorney-client visiting rooms. “Yeah, I’ve got really good news,” Dignam recalled responding. Then she broke into tears. “Can I hug you now?” Lewis asked her next. Yes, she said. You can hug me.
All Voices—December 17
After 18 years in prison, an innocent man is going to come home, Brett Dignam (pictured) told the Independent Tuesday. Dignam took up Lewis's cause in 2010 along with her students at Yale Law School. She subsequently moved over to Columbia Law School and enlisted students there to help Lewis…
The Hartford Guardian—December 24
“It’s very disturbing whenever you watch or encounter a case like this in which they had many opportunities to re-examine the case, including an FBI investigation. And they went ahead with the case anyway,” said Brett Dignam, a Columbia University Law School Professor who has been representing Lewis since 2009 through the University’s Mass Incarceration Clinic.
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NOTE TO FACULTY: This report shares mentions of Law School faculty cited in print, broadcast, and electronic news outlets. It is not intended to be inclusive of every media mention. If you have an article, op-ed, or other commentary being published, please send it to Public Affairs for possible inclusion in our Clip Report. Faculty members seeking assistance in promoting scholarship, facilitating interviews, event coverage, or media training, may email or call us at 212-854-2650.



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