November 2013

November 1-15

ClimateWire—November 1
The report, from the law school's Center for Climate Change Law, takes up the controversial issue of "managed retreat" and describes the myriad ways government officials can make citizens step back from the coast… It was written by Anne Siders, former associate director of the Center for Climate Change Law, under the direction of the center's director, Michael Gerrard. Columbia Law students also took part.
ChinaDaily—November 1
By Karl Sauvant
Since China adopted its "going out" policy in 2001, its outward foreign direct investment flows have grown rapidly, reaching $84 billion (61 billion euros) last year, (although the stock remains small). That year, China was the world's third-largest outward investor, after the United States and Japan.
Karl Sauvant is resident senior fellow at the Vale Columbia Center on Sustainable International Investment, a joint center between Columbia Law School and the Earth Institute at Columbia University
Bwog—November 2
Professor Eben Moglen strode in calmly and confidently, pulled a yellowish sheet of notes from his jacket, and placed his watch on the table… He began by saying that mass surveillance—listening in on every phone call and tracking every movement—is incompatible with a free society, because citizens aren’t able to discuss their government in private with only the people they choose.
The Wall Street Journal—November 3
By Kenneth Anderson and Matthew Waxman
With each new drone strike by the United States military, anger over the program mounts. On Friday, in one of the most significant U.S. strikes, a drone killed Pakistani Taliban leader Hakimullah Mehsud in the lawless North Waziristan region bordering Afghanistan.
The authors discussed their piece further at the Lawfare blog.
The Daily Caller—November 4
Columbia University Law School lecturer Scott Horton told The Daily Caller he doubts that the government would prosecute Greenwald if he enters the United States, but he said it is possible. “If they were going to make a case against Glenn Greenwald they would have to show he induced Snowden to turn over documents to him and therefore there was a conspiracy between him and Snowden to breach statutes that protect confidential information.”
Scott Horton is a lecturer.
Jurist—November 4
By Richard Briffault
On October 8, 2013, the US Supreme Court heard oral argument in McCutcheon v. Federal Election Commission, in which a wealthy individual donor and the Republican National Committee (RNC) challenged the longstanding federal law placing an "aggregate" limit on the amount of money an individual can give to all federal candidates, political parties and political action committees (PACs) in an election cycle.
The Los Angeles Times—November 4
Although SAC Capital will no longer invest others' money, the plea deal would effectively transform the mammoth hedge fund into a so-called family office managing Cohen's own fortune. "He's going to happily play the market on his own," said John Coffee, a securities law expert at Columbia University. "There are worse fates. He won't starve."
Similar stories appeared in Marketplace and Business Insider and on Fox Business Network.
NPR All Things Considered—November 4
ZARROLI: Dan Richman is a professor of law at Columbia Law School.
DAN RICHMAN: I don't imagine that Steve Cohen is resting soundly after this because the government has made its continuing mistrust in him quite clear.
New York Daily News—November 4
Dr. Paul Appelbaum, a professor of psychiatry, medicine and law at Columbia University, told the Daily News that the report itself isn't particularly revelatory, since it's a well-known fact that medical personnel have participated in abusive techniques at the behest of the government.
Paul S. Appelbaum is the Elizabeth K. Dollard Professor of Psychiatry, Medicine, and Law at Columbia University.
OpenSecrets—November 4
Last week, Prof. Robert Jackson Jr., one of the original filers of the SEC petition, was joined by Sens. Elizabeth Warren (D-Mass.) and Bob Menendez (D-NJ) at a briefing hosted by Public Citizen to encourage supporters to keep pressing for reform. The lawmakers highlighted their plans for legislative action should the SEC ruling run aground.
A similar story appeared in Salon.
The National Law Journal—November 4
By Vivian Berger
For the first time in 30 years, the U.S. Supreme Court will revisit the practice common to many legislative bodies of commencing their sessions with prayer. In 1983, the justices in Marsh v. Chambers rejected an Establishment Clause challenge to this ritual even though the same Presbyterian minister, paid out of public funds, had given invocations “in the Judeo-Christian tradition” for 16 years.
Buzzfeed—November 5
“The kind of work that HRC is about to take on will set the global movement for sexual rights (not gay rights) back immeasurably,” said Katherine Franke, director of Columbia University Law School’s Center for Gender and Sexuality Law. Franke accused HRC of colluding in “pinkwashing,” winning Singer points for supporting gay rights and covering over the fact that he has engaged in what she called “predatory investment strategies.”
Similar stories appeared in other outlets, including the Bay Area Reporter.
The Daily Caller—November 5
In 1999, Harvard Law Professor Larry Lessig popularized the notion of the Internet as a “commons” with “neutral” access. In 2002, his student, now Columbia Law Professor Tim Wu, coined the new term “net neutrality.”
Yahoo Finance—November 5
Columbia Law School professor Tim Wu has a different nightmare scenario if the court throw out the rules, one that he believes will hurt cable companies as well as consumers. At the moment, cable companies must pay television programmers huge sums to carry popular channels -- $5 per subscriber per month for ESPN, for example.
Institutional Investor—November 5
Columbia University law professor John Coffee Jr. agrees, arguing that the combination of a White House unconstrained by the need to seek reelection and Attorney General Eric Holder’s desire to leave a legacy has empowered regulators to be more aggressive with the banks. “The Obama administration has no need to kowtow to the financial industry and no need to change its stance,” Coffee says.
The Council on Foreign Relations—November 5
Jagdish Bhagwati, CFR's senior fellow for international economics, discusses his new book, Why Growth Matters: How Economic Growth in India Reduced Poverty and the Lessons for Other Developing Countries.
Bhagwati’s talk was also picked up by BookTV.
The Christian Science Monitor—November 6
“It’s a question of stability in Uzbekistan, which determines the stability of Central Asia,” says Scott Horton, an adjunct professor at Columbia University Law School and longtime observer of Central Asian trends. “To a large extent, what’s been happening in Afghanistan has been nothing more than a preface to the concern about Islamic radicalization of Central Asia, which is an important natural resource base for the world.”
Scott Horton is a lecturer.
The Data Center Journal—November 7
Tim Wu, a professor at Columbia Law School, defines net neutrality as “a network design principle”: “a maximally useful public information network aspires to treat all content, sites, and platforms equally.”
Occupational Safety & Health Reporter
—November 7
By Peter L. Strauss
By statute, matters otherwise publishable in the Federal Register—as regulations establishing one’s legal obligations ordinarily must be—may
instead be incorporated by reference if the director of the OFR finds them ‘‘reasonably available to the class of persons affected thereby.’’

SCOTUSBlog—November 8
By Ronald Mann
The argument this week in Medtronic v. Boston Scientific Corp. presented one of those surrealistic moments – when the correct answer to a problem seems so obvious to the Justices that it is difficult to imagine how it came out differently at the court below. The issue here is who bears the burden of persuasion when a user of technology files suit against a patent-holder, seeking a declaratory judgment that its actions do not infringe a particular patent.
SCOTUSBlog—November 8
By Ronald Mann
The Justices certainly did not speak with one voice when they heard arguments Wednesday in Mississippi v. AU Optronics Corp.  That case involves the Class Action Fairness Act of 2001 (the “CAFA”), which allows defendants to remove to federal court large class actions filed in state court.
The Wall Street Journal—November 8
"Severance is paid in lieu of further wages, so the government has a good argument in favor of the tax," says Michael Graetz, a tax-law scholar who teaches at Columbia University's law school. "On the other hand, the government has lost its last three tax cases in the Supreme Court."
The New Yorker—November 11
Daniel Richman, a Southern District alumnus who teaches at Columbia Law School, told me, “When you hear about a former Assistant U.S. Attorney coming back to the office to talk about an investigation, one could say, ‘It’s the old-boy network.’ But those who are closer to the situation see that it’s a much more beneficent system. The company chose a former Assistant U.S. Attorney. That shows it’s committed to playing by the rules. And that’s rewarded.”
Financial Times—November 11
Hearing David Schizer discuss drilling practices, you might be forgiven for thinking you were talking to an energy executive, not a law professor. The Columbia Law School dean believes lawyers need to understand business at an operational level, particularly as new industries such as shale energy evolve.
Business Standard—November 11
Eminent economist Jagdish Bhagwati, who hit the headlines after lauding Gujarat Chief Minister Narendra Modi for economic growth and entered into a public spat with Nobel laureate Amartya Sen, will now decide the “agenda for the next five years” with the UPA government.
The New York Times—November 11
Decades ago, the boards of corporate America were occupied by the C.E.O. and the C.E.O.’s handpicked friends and colleagues. Today the independent director, an outside director who is not beholden to the chief, dominates the corporate board.
In 1950, only 20 percent of directors of large public companies were independent, according to Prof. Jeffrey Gordon at Columbia University School of Law.
The Diamondback—November 11
The business school and the criminology and criminal justice department officially opened the new Center for the Study of Business Ethics, Regulation, and Crime on Friday. The kick-off event featured keynote speaker John Coffee Jr., a Columbia Law professor, and his presentation, “Missing in Action?: What Explains SEC Passivity.”
New York Law Journal—November 12
Columbia Law School has announced a partnership with the University of Fortaleza in Brazil to expand the teaching of mediation and conflict resolution in Brazil and the United States.
Mother Jones—November 12
But as a new analysis from Columbia University's Center for Climate Change Law reveals, many states' plans do not take climate change into account. Michael Gerrard, the Center's director, said his team combed through all 50 reports to see how accurately and comprehensively climate change was taken into consideration, if at all, and grouped them into four ranked categories.
Similar stories appeared in other outlets, including The Atlantic, Climate Central, and ThinkProgress.
The Wall Street Journal—November 12
In 2011, a group of 10 corporate- and securities-law professors, including Harvard Law School’s Lucian Bebchuk and Columbia Law School’s John Coffee, petitioned the Securities and Exchange Commission to write a rule requiring public companies to disclose their political activities, including campaign donations and lobbying efforts.
Forbes—November 13
Should this loophole be closed? Probably. In 2004 David Schizer, dean of Columbia’s law school, published a paper pleading with tax writers to overhaul the wash sale rule. They haven’t, and they are unlikely to undertake any reforms soon, given the congressional impasse over bigger issues (like whether to raise taxes or cut entitlements).
RH Reality Check—November 13
“The state has violated these women’s human rights, including their rights to life and health,” said CRR Vice President for Programs Luisa Cabal on Tuesday, at a panel highlighting some of the report’s findings at the state capitol in Austin.

Luisa Cabal is a lecturer.
The New York Law Journal—November 14
By Michael B. Gerrard
On Nov. 23, 2001, under the headline “Michael Bloomberg’s Environmental Agenda,” this column began, “The stun­ning victory of Michael R. Bloomberg in the Nov. 6 election means that City Hall will be occupied by a man who has no record in environmental affairs.”

Bloomberg—November 15
A mayor and governor expressing actual long-held affection for each other will be an oddity for New Yorkers who have witnessed a history of feuds between governors and mayors throughout the state’s history, said Richard Briffault, a professor of state and local government at Columbia Law School… “Friendship can probably grease the working relationship, but in the end the different needs, obligations and sources of power are what sets and fulfills the agenda,” Briffault said.
The New York Times—November 15
Scott Hemphill, an antitrust professor at Columbia Law School, said he, too, was surprised by the settlement.  “The complaint went on at length that US Air was a potent competitor because of one stops and Advantage Fares,” Professor Hemphill said. “This made US Air an unusual and potentially disruptive carrier. If that’s true, as the complaint alleged, you can’t divest your way out of that problem. The way the complaint was structured suggested the government would see this to the end and block the merger.”

Globo Networks—November 15
Brazil’s Globo Networks interviewed Professor Michael Gerrard about climate change issues following the impact on Typhoon Haiyan on the Philippines.


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November 16-30


Communications Lawyer—November 2013
By Richard N. Winfield
The story of how Yemen got its freedom of information (FOI) law is an unlikely as it is instructive.
Richard N. Winfield is a lecturer.
Deutsche Welle—November 18
But Matthew Waxman, who worked within the Defense State Departments on detainee issues during the administration of US President George W. Bush, considers the latter scenario improbable. "A dangerous detainee being released into the United States is a very low probability, but it is used to great political effect," the Columbia University law professor told DW.
The London Evening Standard—November 18
By Philip Bobbitt
This week negotiations are expected to resume in Geneva for an interim accord to freeze Iran’s nuclear enrichment and heavy water programmes while a more comprehensive agreement is pursued. These negotiations will involve representatives of the permanent members (P5) of the UN Security Council, plus Germany, and the government of Iran.
The Wall Street Journal—November 18
Moderated by U.S. District Judge Jed Rakoff, the panel considered an assortment of enforcement issues, stretching from Judge Rakoff’s own recent remarks on deferred-prosecution agreements and on “neither admit nor deny” settlements, to allocating scarce resources and the SEC’s use of administrative orders to avoid judicial scrutiny.
The Advocate—November 19
“We are well beyond the day when a public entity can limit access to a program such as the Mitchell-Lama program with such a narrowly defined conception of family,” Katherine Franke, director of the Center for Gender and Sexuality Law at Columbia Law School, said in written testimony during a public hearing November 6. “The proposed amendment’s limitation in the ability to gain or retain access to Mitchell-Lama housing rights marks a step backward in the well-accepted recognition of a broad diversity of families in New York City.”
Bwog—November 19
Last Wednesday afternoon, Columbia Law Professor Eben Moglen gave the third lecture in his four-part series, entitled The Union, May it Be Preserved… The emphasis this week was on the full breadth of the government’s ability to violate the privacy of Americans through the internet. Moglen characterized this problem as an environmental, rather than transactional one.
Climate Wire—November 19
"The longer states keep their heads in the sand, the more difficult it will be for them to cope," said Michael Gerrard, director of the Center for Climate Change Law at Columbia University, which released the report.
The Wall Street Journal—November 19
There are still many more shoes to drop, after the much anticipated J.P. Morgan Chase & Co. $13 billion settlement, say industry watchers. “I would think that the other banks would love to get a settlement at this point,” said Professor John C. Coffee, of Columbia Law School.
Similar stories appeared in other outlets, including Fox Business, Euronews, and the Detroit Free Press.
The New York Times—November 20
“Only a small number of people inside the country really understand the state of play,” Scott Horton, a lecturer at Columbia Law School and a specialist on Central Asia, said in a telephone interview. Of Ms. Karimova, he said, “What is obvious is there has been a change in her position.”
WNYC—November 20
Fellow panelists Warren Simmons, of the Annenberg Institute for School Reform at Brown University, and James Liebman of the Center for Public Research and Leadership at Columbia Law School, both raised the pitfall of treating parents as "clients" exercising choice rather than as "partners."
Similar stories appeared in other outlets, including GothamSchools.
Opinio Juris—November 20
Columbia University’s Jagdish Bhagwati and Francisco Rivera-Batiz have an excellent piece in the November/December issue of Foreign Affairs in which they throw up their hands at the prospect of comprehensive immigration reform and look to the states for some progress on the issue.
The Atlantic—November 20
Philip Bobbitt positions Machiavelli as the great theorist of the early modern state, the first thinker to understand that if power was no longer personal, no longer exercised by a medieval lord, it had to be moralized, in a new public ethic based on ragion di stato—reason of state.
The New York Law Journal—November 21
By John C. Coffee Jr.
Almost everyone has an opinion about securities enforcement. Many are disappointed (and even angry) that "few high level executives" have been prosecuted (criminally or even civilly) in connection with the 2008 financial crisis. Deep in their bunker, the SEC still has some diehards who maintain that fraud has been fully prosecuted, but, even there, attitudes are changing.
Reuters—November 21
Those recommendations are far more likely to stand out than the scores of reports and studies that the Dodd-Frank law required on other issues, said John Coffee, a professor at Columbia Law School in New York. "This is the subject of a longstanding guerrilla war," Coffee said. "It won't be ignored as much as some other reports because there are concerned advocates on both sides."
Crane Data—November 22
Yet another late entry on the SEC'​s "​Comments on Proposed Rule: Money Market Fund Reform; Amendments to Form PF" has been posted, this one from Jeffrey N. Gordon, Professor of Law, Columbia Law School.
Tadias Magazine—November 23
Tseliso Thipanyane, Former CEO of the South African Human Rights Commission and current Lecturer at Columbia University Law School addressed the issue of Kenyan President Uhuru Kenyatta’s recent indictment by the International Criminal Court and the Kenyan Parliament’s subsequent vote to withdraw from the ICC.
The New York Times—November 25
“It’s problematic that you’re forcing them to focus on the short term, rather than follow a long-term strategy which might be better for the company,” said John C. Coffee Jr., a professor at Columbia Law School.
The Wall Street Journal—November 26
Robert Jackson, an associate professor and governance expert at Columbia Law School who is expected to give a presentation at the TIAA-CREF meeting, says he is consulting with investors on the topic and is recommending basing a director's incentive on the company's results, not the hedge funds' returns. "After the initial shock…the truth is somewhere in the middle," Mr. Jackson said of the debate.
MSNBC—November 26
Columbia Law School Dean David M. Schizer discussed alternative energy, fracking, and the future of America's energy consumption on MSNBC’s Morning Joe.
Business Standard—November 27
Even as trade ministers from 159-member countries are going to meet in order to hammer out a global trade deal in Bali in less than a week, the proliferation of several bilateral and regional trade agreements might weaken the World Trade Organization (WTO) as an institution that monitors multilateralism, according to renowned trade economist and professor of economics and law at Columbia University Jagdish Bhagwati.
MSNBC—November 27
“If the purpose of it is to make sure that tax-exempt organizations are primarily engaged in the tax-exempt purpose, not a political purpose, it should pick up all the organizations that might be used for political purposes,” said Richard Briffault, an expert on campaign finance law at Columbia Law School.
SCOTUSBlog—November 27
By Ronald Mann
The second day of the December calendar presents a case that almost certainly will divide the Justices – Northwest, Inc. v. Ginsberg, in which the Court will consider whether the Airline Deregulation Act of 1978 (the “ADA”) preempts a rabbi’s claim that Northwest Air Lines breached its implied covenant of good faith and fair dealing when it terminated his membership in Northwest’s frequent-flier program.
SCOTUSBlog—November 29
By Ronald Mann
The Court will face some unusual juxtapositions on the second day of the December calendar, when it hears oral argument in Lexmark International, Inc. v. Static Control Components, Inc.  You could think of this as an IP case (applying the Lanham Act), but it’s not from the Federal Circuit.
The Washington Post—November 30
Robert J. Jackson, one of the professors involved in crafting the petition, said he has not lost hope. “I remain hopeful that the SEC will eventually take up this rule,” said Jackson, an associate professor at Columbia Law School. “I’m hopeful that when the SEC looks at the merits, they’re going to decide that a rule is necessary.”
Newsday—November 30
"If standard procedures had been used rather than suspended or disregarded, many of the workers would have worn personal protective equipment and been otherwise protected from exposure," said Columbia University law professor Michael Gerrard, an environmental law expert.


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Of Special Note: Media Coverage of Professor Michael Graetz' Competitive Tax Plan

Professor Michael Graetz’ updated competitive tax reform plan was the subject of extensive national and international media attention. He presented his plan at the National Tax Association’s annual meeting in November, where he received the Daniel M. Holland Medal for his contributions to the study and practice of public finance.
TaxProf Blog—November 22
Michael J. Graetz (Columbia) will receive the Daniel M. Holland Medal today at the National Tax Association 106th Annual Conference on Taxation in Tampa.
Wall Street Journal—November 25
Michael Graetz is a “be prepared” kind of guy. A professor of tax law at Columbia University who did a stint in the George H. W. Bush Treasury, Mr. Graetz believes that someday Congress and a future president will realize that piece-by-piece changes to the individual and corporate income tax system won’t work. At that point, he predicts, the U.S. will follow every other developed economy and adopt a tax on consumption.
American Enterprise Institute—November 25
While the Graetz Plan may not be my first choice for tax reform — it does, after all, keep the income tax rather than converting it into a consumption tax — it is way better than the status quo and unfortunately better than what Washington is likely to cook up.
National Review—November 25
Michael Graetz, a professor of tax law at Columbia University and a former Treasury Department official, has released the latest iteration of his Competitive Tax Plan (CTP), a tax reform proposal he describes in detail in 100 Million Unnecessary Returns (2008). Last year, I argued that conservatives have good reason to embrace the Graetz plan, and I’m very curious to see if it enters the tax reform conversation over the next few years.
Forbes—November 26
For many years, Michael Graetz, now a law professor at Columbia University, has been promoting a national Value-Added Tax (VAT) that would become the principal levy paid by most Americans. VATs–and similar broad-based consumption taxes–are enormously controversial in the U.S. even though they are ubiquitous throughout the rest of the world and enjoy widespread support among many economists.
Bloomberg—December 1
This is the brainchild of Michael Graetz, a Columbia University law professor and former top tax official in the George H.W. Bush administration. He has refined his proposal, and the Tax Policy Center, courtesy of a grant from the Pew Charitable Trust, has analyzed it; the results should cause liberals and conservatives to take notice.
This column appeared in several outlets, including The New York Times.
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