October 2013

October 1 - 15

The American Scholar—Autumn 2013
In a classic 1973 article in the Columbia Law Review, two of the school’s young professors, Harold Edgar and Benno C. Schmidt Jr., argued that the Espionage Act was clearly intended to apply to traditional spies, not to journalists.
The Financial Times—October 1
Daniel Richman, a Columbia University law professor, said the ruling could have broad implications. “The government really strives to provide a channel to whistleblowers and informants to pass information on,” he said.  “It’s important both that they strive to keep the identity secret and, more importantly, be seen by the public as striving to keep it secret because the goal is not just to protect the person in this case, but really give some assurances to others in future cases. The government is really playing to a larger audience,” he added.
The Huffington Post—October 1
But Suzanne Goldberg, a professor at Columbia Law School with expertise in asylum cases involving gender and sexual orientation, says it’s not outside the realm of possibility that the courts would grant asylum to Dreamers.  “This is not so far removed from other asylum cases,” Goldberg told HuffPost. “The question is, why are they targeted? The way asylum law has been constructed is to protect people who are targeted based on an aspect of their identity.”—October 1
As John Coffee, Adolf A. Berle professor of law at Columbia Law School, said, “It’s not just adding insult to injury, it’s adding injury to injury.”
Death Penalty Information Center—October 2
As Professor James Liebman of Columbia Law School noted in a study of the burden shifting caused by the death penalty, “[T]he dramatically higher appellate costs instigated by a decision to proceed capitally are mainly triggered by the small set of counties that impose [the] most death sentences and are largely subsidized by state and federal taxpayers ….”
The New Republic—October 2
By Matthew Waxman
With all the attention these days on NSA activities, it’s easy to forget that much surveillance in the United States takes place at the state and local level, and it is also regulated by state and local law. Much of the really high tech stuff is centralized in the federal government’s hands, but debate about at least one new technology—facial recognition—is going on in some places at the state level, and that’s a good thing.
New York Law Journal—October 2
Columbia Law ascribed a smaller first-year J.D. class—down 8 percent from 2008—in part to improve its student-faculty ratio. Although applications have declined 27 percent from six years ago, finding enough qualified students to fill a class is not a concern, said dean David Schizer. "One of the ways we are incredibly spoiled, and it's been true for a long time, is that there are many, many more people who would do well here than we can admit," Schizer said.
Similar stories appeared in the ABA Journal and other outlets.
Manhattan Times—October 2
“To be a force for good, government has to be honest and free of corruption,” said David M. Schizer, Dean of Columbia Law School. “Nothing is more important than advancing integrity in government, and we are proud to partner with the DOI in this exciting new initiative. We know it will make a difference.”
SCOTUSblog—October 2
By Ronald Mann
You could be forgiven if your reaction to the (lengthy) question presented in No. 12-562, United States v. Woods, led you to write this case off as a piece of painful boredom through which the Justices will sit to start the third day of October Term 2013.  Loosely speaking, the issue is whether an “overstatement” penalty in the tax code (penalizing taxpayers who substantially misstate items on their tax returns) applies to abusive tax shelters. A look at the briefs, however, suggests that things will be a bit livelier.
Bloomberg BNA—October 4
According to Michael Gerrard, director of the Center for Climate Change Law at Columbia University Law School, the Supreme Court would more likely consider technical issues related to the language of the Clean air Act and the EPA's implementation of the rules rather than the agency's authority to regulate greenhouse gas emissions.
Baltimore Sun—October 5
Jeffrey Fagan, a law professor at Columbia University, said Batts' original justification wouldn't be proper "in a million years." The idea that the informant may have told Batts the man was presently armed didn't work for Fagan, either.
The Guardian—October 6
Regarding the situation in the US, Phillipa Loengard, director at the Columbia Kernochan Center for Law and Arts, says: "The problem with the register is that the whole building would have to be listed resulting in more bureaucracy with developers and owners."
National Journal—October 7
"Every time there's a capture and discussion of bringing somebody to trial, that reopens a big debate about whether we should be prosecuting terrorists here in the United States at all, or if we should be holding them abroad as military detainees ... [and] where to hold them while deciding whether to bring them to trial," says national security law professor Matthew Waxman of Columbia University.
Think Progress—October 7
Though tortious interference cases are hard to predict, Rodriguez will likely have to prove that MLB’s investigation was both proper [sic] and motivated by a desire to get him out of the game, according to Columbia University law professor Avery W. Katz. And if his damning allegations against MLB are true, Katz said, “that would make out a (legitimate) claim.”
The Washington Blade—October 7
Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, said the involvement from the administration in the marriage lawsuits would reinforce that “the lives of all Americans are deeply affected when states discriminate actively against some of their constituents.”
Forbes—October 8
The [Princeton Review] book includes a ranking of the 10 best schools for career prospects, along with its other ratings like academic experience, quality of life and best professors. Columbia takes the No. 1 slot for career prospects as it did last year. Nine months after graduation, 99% of the 456 graduates in the class of 2012 were employed, at a median starting salary of $160,000.
CNN—October 8
"No one who has ever studied ['the case] has ever believed that Bernie Madoff could have done it alone," said John Coffee, a Columbia Law School professor and expert on white collar crime. "There had to be co-conspirators. If you're in that building for a number of years, and you're filling out those accounts, you are going to realize that there were no securities transactions occurring."
Similar stories appeared in other outlets, including Salon and The New York Daily News.
NPR On Point—October 9
Guests include Richard Briffault, professor of constitutional law at Columbia University and expert on campaign finance law.
Agence France-Presse—October 9
Matthew Waxman, a professor at Columbia Law School, said that while the 2001 authorization of force had plenty of gray areas, the case that Libi was related to Al-Qaeda "seems relatively strong." The Obama administration's justifications "are very similar to arguments that the Bush administration relied on, though the Obama administration has demonstrated a much stronger interest in bringing such suspects to trial in the United States rather than detaining them long-term in Guantanamo or other foreign sites," he said.
Fox Business—October 9
“He’s just following the business model of that office,” said Columbia University law professor John Coffee. Coffee noted that Schneiderman’s two immediate predecessors, Andrew Cuomo and Eliot Spitzer, burnished their reputations by aggressively policing Wall Street while serving as AG and both men wound up catapulting themselves to the governor’s office.
The Atlantic—October 10
On Wednesday evening, Eben Moglen of the Software Freedom Law Center delivered the first in a series of lectures at Columbia Law School on Edward Snowden, how to conceive of his leaks, and the impact they're likely to have on the course of world history.
Similar stories appeared in other outlets, including the Columbia Daily Spectator and Bwog.
Dorf on Law—October 10
Professor Dorf's former Columbia Law School colleague, Professor Jeffrey Gordon, forwarded a financing idea based on "super-coupon bonds."  The basic idea is that it is possible to promise big "interest" payments in the future, on bonds with a "principal" amount that is lower than the debt ceiling, but still raise enough money to fund the government.
SCOTUSblog—October 10
By Ronald Mann
On Wednesday morning, the Justices started with what might seem to be a minor tax case, United States v. Woods
Reuters Legal [Subscription Required]—October 10
Q&A: Michael Gerrard on Coastal Retreat and Superstorm Sandy Litigation
Michael Gerrard, director of Columbia Law School's Center for Climate Change Law and senior counsel at Arnold & Porter, is an expert on the subject and author of the Coastal Retreat Handbook, which is slated to come out this fall.
Time—October 11
Philip Bobbitt, Columbia – no – The President has no such authority. The suggestion has been made that the 14th amendment might provide authority to halt a default, but its provisions apply, if at all, to a repudiation of the debt, not a default and, in any case, provide the president no constitutional power to act independently of any statutory or injunctive mandate in the case of a repudiation.
IndieWire—October 11
Ever since "Escape From Tomorrow," the black and white indie shot covertly in Disneyland and Disney World, debuted at this year's Sundance, the indie film world has wondered if the notoriously litigious entertainment conglomerate would come after Randy Moore's microbudget film. (It is worthwhile to note that the Columbia University lawyer Tim Wu said at Sundance that Disney wouldn't have a case.)
The New York Times—October 11
Mr. Diehl was one of a group of Columbia law students interning with the Bronx Defenders, an organization that provides free legal services to the indigent, working in the trenches of the borough’s notoriously sluggish and dysfunctional court system, where there are hardly enough lawyers to go around and cases can drag on for years… Two years ago, [Robin Steinberg, founder and executive director of Bronx Defenders] approached Ellen Chapnick, the dean for social justice initiatives at Columbia Law School. One of the appeals of teaming up with the Bronx Defenders, Ms. Chapnick said, was the opportunity for students to see “the clients as whole people” and “not just as people who are accused of a crime.” The interns, who are spread among different teams of lawyers at the Bronx Defenders, meet every Wednesday for a two-hour seminar taught by Ms. Steinberg at Columbia.
Robin Steinberg is a lecturer.
The New York Daily News—October 14
Under the 1983 settlement, Raff & Becker was appointed to monitor the Labor Department and review up to 600 randomly selected Appeals Board cases each year. The monitoring was supposed to last only three years, but Raff & Becker continually obtained court orders finding the state in contempt and extending the monitoring. Legal experts were amazed at the longevity of Raff & Becker’s monitoring. “I know of nothing even vaguely similar,” said Columbia University Law Prof. John C. Coffee.
The New Republic—October 14
By Matthew Waxman
The New York Times reports today that "Privacy Fears Grow as Cities Increase Surveillance." The main theme is that municipal police and law enforcement agencies around the country are deploying new and more sophisticated data gathering and analysis technology, some of it bought with counter-terrorism funds, stoking privacy concerns among residents and watchdog groups.
ProPublica—October 15
Michael B. Gerrard, director of the Center for Climate Change Law at Columbia University, said he wasn’t surprised FEMA had been slow in setting up the council. “It’s the rule, rather than the exception, that federal agencies miss the rule-making deadlines” set out in laws, he said. “Often they have to be sued to get back on schedule.”
Associated Press—October 15
Michael Gerrard, a law professor at Columbia University and director of its Center for Climate Change Law, saw it somewhat differently. “From an environmental standpoint, it is bad, but not catastrophic,” Gerrard said. He added that it would have been far worse if the court decided to question the EPA’s conclusion that greenhouse gases endanger human health and welfare.
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October 16 - 31

The New York Times—October 16
“It’s of real legal importance that components of the Justice Department disagreed about when they had a duty to tell a defendant that the surveillance program was used,” said Daniel Richman, a Columbia University law professor. “It’s a big deal because one view covers so many more cases than the other, and this is an issue that should have come up repeatedly over the years.”  
SNL Financial—October 16
But Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School and senior counsel at Arnold & Porter LLP, said court watchers should not make too much of the partisan stripes of the sitting justices to handicap the court's ruling. He said that because the case is more legal and technical and deals with statutory interpretation rather than a social philosophy, the ruling is less likely to break down along political lines.
Financial Advisor—October 16
John Coffee Jr., a professor of securities law at Columbia University, said deciding how far to extend SIPC coverage is a fundamental question that should be addressed by Congress “rather than through judicial lawmaking.”
Bloomberg BNA—October 16
Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School, told Bloomberg BNA Oct. 15 that the court is unlikely to revisit its past decisions. However, the most recent cases could present an opportunity to define the limits of the EPA's authority under the Clean Air Act.
The Washington Post—October 16
John C. Coffee Jr., a professor at Columbia Law School, said he was surprised that the SEC would take on a case that hinges on one person’s word against another.  “This was ultimately a credibility contest between Mr. Cuban and the other person on the disputed phone call, and Mr. Cuban won,” Coffee said.
Similar stories appeared in other outlets, including The Seattle Times and the National Post.
Project Syndicate—October 17
By Katharina Pistor
When Greece’s sovereign-debt crisis threatened the euro’s survival, US officials called their European counterparts to express bewilderment at their inability to resolve the issue. Now, the tables have turned, with American leaders on the receiving end of such calls.
This piece appeared in many outlets, including Le Monde, and was also mentioned in The Wall Street Journal and The Moscow Times.
The New Republic—October 17
By Matthew Waxman and Kenneth Anderson
What if armed drones were not just piloted remotely by humans in far-away bunkers, but they were programmed under certain circumstances to select and fire at some targets entirely on their own? This may sound like science fiction, and deployment of such systems is, indeed, far off.
New York Magazine—October 21
We hired two more security people for overnight. Pippa Loengard, assistant director of the Kernochan Center for Law, Media, and the Arts at Columbia Law School, generously offered to take our plight to the art law committee of the city bar and see if anyone could recommend a preservation expert.
Waterloo Cedar Falls Courier—October 21
"We want to 'antique' as a nation slavery and segregation,” said speaker Theodore Shaw, a Columbia University School of Law professor and former head of the NAACP Legal Defense Fund. That makes it "something we don’t have to think about."
Climate Central—October 21
The likelihood that any given storm could cause a nuclear power plant to melt down may be remote, but Sandy had some lessons to teach about that as well, said Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School.
The fact that Alibaba's partners are relatively unknown to U.S. investors is also likely to raise questions, said Robert Jackson, a former corporate lawyer now at Columbia Law School. "You can sell the idea that Mark Zuckerberg should control Facebook, and you could probably even sell Jack Ma with Alibaba," Mr. Jackson said, referring to the chairman of Facebook and chairman of Alibaba. "But selling a whole group of unknown Chinese executives to U.S. institutions is going to be much tougher."

U.S. News and World Report—October 21
Why be so loath to say sorry? It's not just about pride; admissions of guilt can have major financial consequences down the road, says one expert. "It all depends on how you craft it. You can say things that will have consequences and you can say things that will be innocuous," says John Coffee, Adolf C. Berle Professor of Law at the Columbia Law School.
NBC News—October 21
As of last week, more than 270 researchers signed a statement backing a ban on developing or using weapons that fire without human decision. Some scholars, like Matthew Waxman at Columbia Law School and Kenneth Anderson at American University are opposed to that statement, arguing that a treaty ban is "unnecessary and dangerous."
The New York Times—October 21
The case, Mary Veronica Santiago-Monteverde v. John S. Pereira, has drawn the interest of bankruptcy experts and legal aid lawyers who see it as a threat to the housing stability of many low-income New Yorkers. Mrs. Santiago’s case was argued before the appeals court last month by Ronald J. Mann, a law professor at Columbia University and a bankruptcy specialist who has argued cases before the United States Supreme Court.
Washington City Paper—October 21
But there's reason to believe the ripples could be felt beyond New York's borders, including in D.C.'s housing market. "I think this case is likely to set a precedent that will be followed nationally on this problem," says Ronald Mann, the Columbia University law professor and attorney who argued Santiago's case before the appeals court.
Just Security—October 21
By David Pozen
Now that the government shutdown has passed, the full Senate is poised to take up a “media shield” bill that news organizations have coveted for decades.  These organizations should be careful what they wish for.
This article was picked up by the Nieman Journalism Lab.
The Wall Street Journal—October 21
By Richard G. Liskov
On Friday, Prudential Financial Inc. dropped its fight against being designated as a "systemically important financial institution" by the Treasury Department's Financial Stability Oversight Council. When the oversight council in June named Prudential and AIG as " SIFIs, " it marked the first time in American history that federal government would directly regulate the solvency of state-licensed insurers as to all lines of insurance.
Richard G. Liskov is a lecturer.
Bloomberg Businessweek—October 22
Holder’s role in leading the effort by the Obama administration to intensify scrutiny of financial institutions for wrongdoing tied to the 2008 economic meltdown may help change the conversation about his tenure. “He doesn’t want to see his legacy be that of the attorney general who saw banks as too big to fail,” John Coffee, a professor of law at Columbia University, said.
The United States Law Week—October 22
Academics are often criticized as being out-of-tune with the practical side of the law, but Judge Gerard E. Lynch of the U.S. Court of Appeals for the Second Circuit, in the words of Sen. Chuck Schumer (D-N.Y.), ‘‘sought out opportunities to be more than a smart professor living in an ivory tower’’ and ‘‘lived the life of a real lawyer’’ early on in his career as a professor at Columbia Law School.
The Huffington Post—October 23
By Joann Kamuf Ward, Douglas Cantwell, Victoria Gilcrease-Garcia, Ami Shah and Caroline Stover
Last week should have marked an important milestone for U.S. engagement with the international community on human rights. The United States was scheduled to appear before the United Nations Human Rights Committee as part of a compliance review mandated by the International Covenant on Civil and Political Rights (ICCPR), a human rights treaty ratified under President George H.W. Bush in 1992.
Joann Kamuf Ward is co-director of the Human Rights Clinic.
The Wall Street Journal—October 23
A new bout of panic in the money market “is for now the most plausible scenario for how we have another 2008 crisis,” says John C. Coffee, a professor at Columbia Law School. The fundamental problem, he says, is that the funds’ investments are inextricably linked; if one is compelled to dump assets to address a funding shortfall, the declining prices creates problems for other funds.
Delaware Online—October 24
Columbia law professor John C. Coffee Jr., a business law expert and close observer of Delaware’s Chancery Court, said the three different opinions from the panel shows that the plaintiff’s argument is based in “the shadowy outer reaches of the First Amendment.”
ABA Journal—October 24
Silvia Hodges Silverstein, adjunct professor at Columbia Law School, and Heidi Gardner, assistant professor at Harvard Business School talk with Bloomberg Law's Lee Pacchia about how pharmaceutical giant GlaxoSmithKline introduced procurement practices into its retention of outside counsel.
Silvia Hodges is a lecturer.
The Jewish Voice—October 24
Speaking before an audience of over 1200 at the 50th anniversary tribute gala of the Conference of Presidents of Major American Jewish Organizations at the Waldorf Astoria Hotel in Manhattan, Bush said America stands with Israel “in firmly opposing Iran’s nuclear weapons ambitions.”… The honorees of the evening included all the past Board Chairs of the Conference…Professor Richard B. Stone; who served as chairman from 2011-2013, is a professor of law at Columbia University holding the Wilbur Friedman Chair in Tax Law since 1991, is Managing Director of Sunrise Securities Corporation, was appointed assistant solicitor general of the United States, serves as the Chairman of the Board at Espro Acoustiguide Group and has been a Director of Ecora Software Corporation since December 1994.
National Journal—October 24
The $650 million SEC settlement removed Michael Milken, the head of the firm’s high-yield and convertible-bonds department, from power. He was later sentenced to 10 years in prison. “The SEC was more feared [after that],” says John Coffee, a Columbia University law professor who studies white-collar crime. “For a period of time, we saw insider trading as being seen as very dangerous behavior—career-ending.”
Take Part Blog—October 25
David Pozen, a professor at Columbia Law School and former Senate Judiciary Committee aide, argued that passing such a measure in and of itself needlessly validates the practice of subpoenaing journalists. The danger isn’t in who or what is covered by the shield, Pozen said, but in normalizing the act of compelling reporters to testify.
Take Part Blog—October 25
David Pozen, a Columbia Law School associate professor who has studied what he calls the “intricate ecosystem” of leaking, describes the situation this way in a forthcoming Harvard Law Review article: “The great secret about the laws against leaking is that they have never been used in a manner designed to stop leaking — and that their implementation threatens not just gauzy democratic ideals but practical bureaucratic imperatives, not just individual whistleblowers but the institution of the presidency.”
Chicago Tribune—October 25
John Coffee, a securities law expert at Columbia University, predicts the Golden State could become the venue of choice if the federal government brings more cases stemming from the housing bust and financial crisis. California communities were among the hardest hit by the mortgage crisis, Coffee noted.
Foreign Policy Association—October 25
“Positive examples are needed in which people who have been accused of something that is a challenge to the Kremlin are actually set free and acquitted,” said Katharina Pistor, a law professor at Columbia University and director of the Center on Global Legal Transformation.
NPR—October 25
John C. Coffee Jr., the Adolf A. Berle Professor of Law at Columbia University, explained to our Newscast unit that this case is about the government claiming fraud, saying that JPMorgan or the companies it later bought had sold portfolios to Freddie Mac and Fannie Mae without revealing just how toxic the mortgage-backed securities in them had become.
Similar stories appeared in other outlets, including The Los Angeles Times.
Lawdragon—October 25
Michael Gerrard: As senior counsel to Arnold & Porter and as director of Columbia’s Center for Climate Change Law, he’s at the forefront of environmental law globally, fighting for reduction of carbon emissions and mitigation of climate-change effects.
Lawfare—October 27
By Matthew Waxman
Louise Arbour, president of the International Crisis Group, delivered a very powerful critique last week of existing doctrines and frameworks for promoting international justice, humanitarian protection, and rule of law.
Morning Call—October 28
Philip Bobbitt, director of Columbia University's Center for National Security Law, argues that "data mining" of known terrorism suspects -- computer scans and analysis of phone numbers; email and home addresses; passport records; and the time, duration, connections and location of phone calls and text messages -- can help intelligence agents intercept terrorist plots.
Indian Express—October 29
In 2010, the government of India endowed the Dr. B.R. Ambedkar Chair in Indian Constitutional Law and a fellowship program named after Jagdish Bhagwati, noted economist and university professor at the Columbia Law School. Sudhir Krishnaswamy, who currently holds the Ambedkar Chair at Columbia, addressed criticism towards Ambedkar's role in establishing the Indian Constitution.
The Huffington Post—October 30
The author of the SEC political disclosure petition, Columbia Law School associate professor Robert Jackson, explained its importance to shareholders. "Without transparency, shareholders can't possibly hold directors and executives accountable when they spend corporate money, shareholder money, on politics," he said.
Similar stories appeared in The Hill and Reuters.
Opinio Juris—October 30
By Anthea Roberts
Michael Goldhaber has written an interesting and timely article charting the rise of international arbitrators exercising power over and with respect to domestic courts. He gives examples ranging from Chevron to Saipem to White Industries. This is an important and growing phenomenon that has not yet received adequate attention.
The St. Louis American—October 30
The event’s featured speaker, Theodore M. Shaw, professor of professional practice at Columbia University School of Law, was introduced by Rufus J. Tate Jr., principal of the Tate Law Firm. Tate spoke with awe about Shaw, who was an attorney with the NAACP Legal Defense Fund for 23 years, serving (among other roles) as associate director-counsel (1993-2004) and director-counsel and president (2004-08).
Boing Boing—October 30
This is video of the first in a series of four talks Eben Moglen is doing on 'Snowden and the Future'. He traces an arc through history, from the ancients to the present mess. I don't know where his remarks are headed, but I am excited to see him provide context and detailed analysis that will help us understand the current state of spying and privacy intrusion.
Law360 (subscription required)—October 30
Met Museum’s Admissions Fee Policy Is Lawful, Judge Rules
The museum is represented by Bruce R. Kelly, Michael Gerrard and Meredith Esser of Arnold & Porter LLP.
China Daily—October 31
By Karl Sauvant
Since China adopted its "going out" policy in 2001, its outward foreign direct investment flows have grown rapidly, reaching $84 billion in 2012 (although the stock remains small). That year, China was the world's third-largest outward investor, after the United States and Japan.
Courthouse News Service—October 31
In August, Scheindlin found that the NYPD trampled upon the rights of mostly black and Latino men by stopping, questioning and frisking them in droves without reasonable cause. The court heard statistics from Columbia University professor Jeffrey Fagan showing that the roughly 80 percent of the 4.4 million stops made between 2004 and 2012 targeted black and Latino New Yorkers and visitors.
Foreign Affairs—November/December 2013 (available online now)
By Harold Hongju Koh and Michael Doyle
In “The War of Law” (July/August 2013), Jon Kyl, Douglas Feith, and John Fonte purport to explain the state of international law and how it “undermines democratic sovereignty.”
Foreign Affairs—November/December 2013 (available online now)
By Jagdish Bhagwati and Francisco Rivera-Batiz
Ever since Congress passed the Immigration Reform and Control Act, in 1986, attempts at a similar comprehensive reform of U.S. immigration policies have failed. Yet today, as the Republican Party smarts from its poor performance among Hispanic voters in 2012 and such influential Republicans as former Florida Governor Jeb Bush have come out in favor of a new approach, the day for comprehensive immigration reform may seem close at hand.
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