September 2013

September 1-15

The American Scholar—Autumn Issue

In a forthcoming issue of Harvard Law Review, Columbia Law School’s David Pozen updates and fills out Frankel’s view in “The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information.” In “a polity saturated with, vexed by, and dependent on leaks,” Pozen writes, the government has long chosen not to vigorously enforce the laws against leaking. Its public emphasis is on “vilifying leakers,” but in private, the government’s practice is largely to maintain “a permissive culture” of disclosures.
The New York Times—September 2
Daniel C. Richman, a law professor at Columbia, said he sympathized with the government’s argument that it needs such voluminous data to catch criminals in the era of disposable cellphones. “Is this a massive change in the way the government operates? No,” said Mr. Richman, who worked as a federal drug prosecutor in Manhattan in the early 1990s. “Actually you could say that it’s a desperate effort by the government to catch up.”
This article appeared in several other outlets that carry New York Times content.
Responding To Climate Change—September 2
Michael Gerrard from Columbia Law School spoke of the legal complexities facing the sinking states, and whether an underwater island is able to maintain its sovereignty and maritime rights.
Gazette.Net—September 3
In January, Food & Water Watch, Potomac Riverkeeper and Patuxent Riverkeeper — represented by Public Justice and the Columbia University School of Law Environmental Law Clinic — filed an intent to sue NRG Energy Inc. for federal Clean Water Act violations at the Dickerson and Chalk Point plants as well as a plant in Charles County, according to a joint news release.
ClimateWire—September 3
Others, like Columbia University professor Michael Gerrard, outlined the legal challenges of maintaining sovereignty that disappearing nations face. Under international law, Gerard noted, a state must possess a defined territory, a population nucleus of at least 50 people, a government and a certain measure of independence -- all things threatened by rising seas.
Ridgefield Daily Voice—September 5
In 2010, Comey became general counsel of the Westport-based hedge fund Bridgewater Associates. Earlier this year, he left Bridgewater to become senior research scholar and Hertog Fellow on National Security at Columbia University Law School in New York.
Financial Mail—September 6
In this book [Columbia University Professor Jagdish] Bhagwati and fellow professor of Indian political economy, Arvind Panagariya, put forward a forceful case that further market-orientated reform, of the kind introduced haltingly in 1991 into the socialist India of Jawaharlal Nehru and Indira Gandhi, is the only way to raise the masses out of poverty, not only in their country but elsewhere in the developing world.
FDA Week (Subscription Required)—September 6
Scott Hemphill, a professor at Columbia Law School, said, however, that the Supreme Court opinion should extend to these "no-AG" agreements and it would be hard to believe that a lower court would interpret the high court's decision so narrowly. "If it doesn't (extend to the no-AG deals), then the Supreme Court opinion has huge loopholes," he said.
MAKE Magazine - September 6
Eben Moglen, a professor of law and legal history at Columbia University, and the founder of the Software Freedom Law Center, kicked off the Open Hardware Summit today at the Massachusetts Institute of Technology in Cambridge by urging hardware hackers to continue the important work started by the open software movement. “The distinctions between software and hardware are disappearing,” he said, adding that both are part of the “human freedom movement.”
Politico Pro (Subscription Required)—September 6
Some see Apple e-book injunction as narrow in scope
The big loss for Apple may be the appointment of an external monitor, according to some observers, even though the monitor will serve for two years and not a decade as the Justice Department initially requested. “The imposition of an external monitor is a serious step,” said C. Scott Hemphill, a professor at Columbia Law School. “In her opinion on liability, the judge made clear her concerns that Apple didn’t get it. They hadn’t viewed the conduct with the seriousness it deserves. The monitor helps ensure that Apple is kept to the straight-and-narrow path.”
Boston Globe —September 7
While Republicans say they want to dig through the studies to make sure they were performed appropriately, critics say they are hunting for fodder for further partisan attacks.  “Repeatedly kicking at these old studies has become a favorite tactic of those who resist regulation and try to sow doubt where there is very little legitimate, remaining scientific doubt about the big picture,”’ said Michael Gerrard, a professor at Columbia Law School and director of the Columbia Center for Climate Change Law.
National Journal—September 8
Obama strongly implied he could act alone last week. “I always reserve the right and responsibility to act on behalf of America’s national security,” the president said. This insistence, according to Columbia University national security law professor Matthew Waxman, is to avoid creating the limitations Spiro fears. “By arguing that legally he could go ahead without Congress, [Obama] continues to plant the flag for a broad and assertive executive-branch authority,” Waxman said.
The Volokh Conspiracy—September 10
During my talk at Columbia yesterday, Professor David Pozen, who graciously commented on my book, made an interesting point: for purposes of the rapid development of constitutional doctrine, it was not the law reviews–the bread and butter of academia–that counted but a white paper by think tanks.
The Columbia Spectator—September 10
University President Lee Bollinger announced the 11 members of a search committee charged with finding a replacement for Law School Dean David Schizer on Monday... The search committee, chaired by law professors Richard Briffault and Robert Scott, comprises nine faculty members, as well as Nkonye Iwerebon, dean of admissions for the Law School; Sarah Green, Law ’14; and District Judge Denise Cote, GSAS ’69 and Law ’75.
The News Journal—September 10
“I would say Myron Steele has protected the reputation and prestige of the Delaware judiciary,” said Professor John C. Coffee Jr. at Columbia Law School, an expert in corporate law.
The Verge—September 9
Legal experts say that Aereo would be taking a risk to move into the nation's capitol in the face of Collyer's decision. To complicate matters further, Collyer's ruling covered the entire nation, making it trickier for Aereo to continue expanding, said Jane Ginsburg, a professor at Columbia Law School.
Law360 (Subscription Required)—September 10
The Center for Climate Change Law at Columbia Law School's filing comes as New York's largest utility seeks leave from the state's Public Service Commission to increase its electric, gas and steam service rates in part to invest in system reliability.
Mother Jones—September/October 2013
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.
Corporate Crime Reporter—September 11
Panelists include Neil Barofsky, former SIGTARP and author of Bailout, Columbia University School of Law Professor John Coffee, former Senator Ted Kaufman, who chaired of the Congressional Oversight Committee for TARP, and Professor James Galbraith of the University of Texas.
New York Daily News—September 11
Columbia Law School University Professor Jeffrey Fagan, an expert on stop-and-frisk, questioned whether Thompson's ideas would be possible without NYPD’s approval. "It is ambitious," said Fagan.
Forbes—September 11
Eben Moglen, a law professor at Columbia Universityand subject of a recent profile, has a particular favorite privacy friendly example: “The farmer at the local green market, who only takes cash and has no video surveillance rig spying on his customers.”
Wall Street Journal Marketwatch—September 11
Columbia University Law School professor John Coffee noted during a panel discussion I moderated that the loss of integrity in structured finance ratings arose because only a handful of Wall Street banks were creating those securities. That fostered a more unhealthy client-rater relationship than in, say, corporate bonds, where there are thousands of issuers.
This piece was distributed on various Wall Street Journal channels including the MoneyBeat blog.
ProPublica—September 11
“I have really mixed feelings about the question of term limits for prosecutors,” said Daniel Richman, a former federal prosecutor who is now a professor of law at Columbia University. “DAs have a tendency to get entrenched. And I’m not sure that leads to the exercise of the kind of zeal and good judgment that we expect of people with such powers. That said, I’m not sure more politics and more elections is the solution.”
Pacific Standard Magazine and other ProPublica partners reprinted this story.
The Wesleyan Connection—September 11
Ted Shaw ’76 will speak on “Looking Backwards; Looking Forward: The Persistence of Race in 21st Century American Life” during Wesleyan’s annual Constitution Day celebration Sept. 17. Shaw is Professor of Professional Practice at Columbia University Law School and counsel at the international firm of Fulbright and Jaworski.
Family Law Prof Blog—September 12
Elizabeth Scott (Columbia University Law School) and Robert Emery (University of Virginia) have posted Gender Politics and Child Custody: The Puzzling Persistence of the Best Interest Standard, Columbia Public Law Research Paper No. 13-352, Law and Contemporary Problems (forthcoming 2013) on SSRN .
The Globe and Mail—September 12
Some experts say the effort to subdue risk-taking and make banking duller and safer is not complete. “We’ve not gone as far as wisdom would have taken us,” said Harvey Goldschmid, a former commissioner at the U.S. Securities and Exchange Commission and a law professor at Columbia University. “It’s less exciting than it used to be. But even that depends on where the rule-making [process] comes out.”
Law 360—September 12
In order for a globally integrated carbon market to flourish, you need as many participants as possible, experts say. "Larger is better for carbon markets," said Michael B. Gerrard, Arnold & Porter LLP counsel and director of Columbia Law School's Center For Climate Change Law. "When there are a wide variety of areas participating, it’s easier to find lower-cost emission reduction opportunities."
Inside Health Policy (Subscription Required)—September 12
Scott Hemphill, a professor at Columbia Law School, said, however, that the Supreme Court opinion should extend to these "no-AG" agreements and it would be hard to believe that a lower court would interpret the high court's decision so narrowly. "If it doesn't (extend to the no-AG deals), then the Supreme Court opinion has huge loopholes," he said.
Lawfare Blog—September 12
By Matthew Waxman
For those interested in arguments about international law and possible military intervention in Syria, I highly recommend great essays by two authors from the United Kingdom (as readers may recall, the UK government recently released a position paper justifying possible military action under a humanitarian intervention theory similar to the one articulated by the UK in Kosovo; these essays address that official position in offering the authors’ own takes).
Bloomberg—September 13
Significant gaps between analysts’ estimates and bonus goals may mean directors are “deliberately setting performance targets low so the management doesn’t have to meet market expectations in order to get paid,” said Robert Jackson Jr., a Columbia University law professor who helped the federal government oversee executive pay at companies bailed out during the financial crisis.
The New Yorker—September 13
By Tim Wu
At 10 P.M. on September 22, 1912, Franz Kafka, then a twenty-nine-year-old lawyer, sat down at his typewriter in Prague and began to write. He wrote and wrote, and eight hours later he had finished “Das Urteil” (“The Judgment”).
Business Insider—September 13
Columbia Law School Tim Wu explained in a New Yorker blog that while the filmmakers may have violated Disney World's rules, the movie itself should fall under fair use as commentary on the theme parks and Disney itself.
The Washington Post—September 13
Obama displays such a peculiar combination of traits as president that I turned this week to an unlikely source for illumination. It’s a new book by Columbia law professor Philip Bobbitt about Machiavelli called “The Garments of Court and Palace.” Bobbitt’s argument is that, for all his supposed ruthlessness and amorality, Machiavelli was proposing rules that would allow a prince to govern in a decisive but sustainable way — with what amounted to constitutional order. This book convinces me that to succeed, Obama must become Bobbitt’s neo-Machiavellian.
This column was reprinted in many outlets that carry Washington Post content.
Media Law Prof Blog—September 13
Brad A. Greenberg, Columbia Law School, has published DOMA's Ghost and Copyright Reversionary Interests in volume 108 of the Northwestern University Law Review Colloquy (September 2013).
Brad A. Greenberg is an Intellectual Property Fellow at the Kernochan Center for Law, Media, and the Arts.
The Los Angeles Times—September 13
Shares in high-profile IPOs are usually allocated to the best clients of a deal's underwriters. That's probably going to be big institutional investors that are the most treasured customers of the investment banks bringing Twitter to the stock market, noted John Coffee, a securities law expert at Columbia Law School.
Bloomberg—September 13
“It may be part of an attempt to tell the government that this case is weaker than you think, and you’ll be embarrassed,” John Coffee, a securities law professor at Columbia University Law School, said of Grout’s effort. E-mails are often a matter of debate, with defense attorneys trying “to tell the prosecution that they can’t go forward because their interpretation is wrong.”
ABC News—September 15
John Coffee, professor at Columbia Law School, said some regulatory agencies have put forward "cosmetic" changes in assuring history does not repeat itself with another financial crash. "My view is that we've made at best uneven and modest progress towards curbing systemic risks for a variety of reasons," he said.
The New York Times—September 15

The Reluctant Technologist (Page 103) "If you met him, you'd never guess he had something to do with high-tech," says Tim Wu, a media and Internet policy professor at Columbia Law School, about David Karp, the founder and chief executive officer of Tumblr. Karp's Williamsburg home, which Wu describes as "a beautiful space, but ultra-low-tech," inspired Wu to reconsider his own Chelsea apartment. "He made me think I should take down all of our drywall. I want to see some bricks," Wu says, adding that he has even consulted a designer.


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September 16-30


Euronews—September 16
Wall Street expert Professor John Coffee of Columbia Law School said some of the industry’s problems have been addressed through new laws but many remain: “We have made some progress but it’s very modest, it’s very uneven.”
The National Law Journal—September 16
By Vivian Berger
A man who is isolated and alone can be regarded as a sort of discarded person," Dinizulu, king of the Zulus, wrote in 1910. "There is nothing worse than being isolated." Prisoners who have endured solitary confinement agree. According to Senator John McCain, who was kept alone in a cell as a prisoner of war in Vietnam, "It crushes your spirit."
The Washington Post—September 17
In 2007, Tim Wu, the Columbia law professor who coined the term "network neutrality," expressed dismay at the dismal state of the mobile software market. He blamed the problem on excessive control by wireless network operators.
Bloomberg—September 17
Classic strategies used to respond to a financial crisis — such as the Dodd/Frank strategy of delegating vast discretionary power to the financial regulatory agencies — no longer work. The effect of these strategies is like “rearranging the deck chairs on the Titanic.” That’s the take of Columbia University School of Law Professor John Coffee.
Concurring Opinions—September 17
Legal academics also play a striking role in hacker legal education. Richard Stallman was of course the driving personality behind free software. But Columbia’s Eben Moglen had an absolutely crucial role in amending the closest thing the free software movement has to a constitution: the GNU GPL.
State of the Planet (Columbia University Earth Institute Blog)—September 17
When it comes to climate science, state and federal court judges have found little to argue with, according to a New York Law Journal article written by Michael B. Gerrard, director of the Columbia Law School’s Center for Climate Change Law.
WHSV-TV—September 17
We talk with Mariann Sullivan, an animal rights activist and a professor of Animal Law at Columbia University, and with Kathy Dixon of the Virginia Farm Bureau.
Mariann Sullivan is a lecturer.
USA Today—September 17
"The classic strategy used by Congress in response to a financial crisis no longer works," said John Coffee, an expert in financial regulation at Columbia University's law school, "and we've got to improvise a newer strategy."
New York Daily News—September 18
Bennett Capers of Brooklyn Law School will head the council. Other members hail from places including Columbia Law School, Yale and the City University of New York Law School.
Similar stories appeared in multiple outlets.
Bloomberg—September 18
“This is the financial blunder of the decade,” said John Coffee, a securities law professor at Columbia University in New York. “We have mainly negligence, slow response and some confused self-protective statements made by senior people at JPMorgan,” though they were allegedly deceived, he said.
Similar stories appeared in multiple outlets, including Fortune, the Guardian, USA Today, the Washington Post, and the BBC.
Lexology—September 18
In a compelling analysis of federal court decisions addressing climate change issues, Michael B. Gerrard, Professor of Professional Practice and director of the Center for Climate Change at Columbia Law School, argues persuasively that climate change science has been unanimously accepted by the courts (with one piddling exception) and the basis for several significant decisions.
New York Law Journal—September 19
By John C. Coffee Jr.
Is the SEC capable of blushing? Increasingly, there are occasions in which the Securities and Exchange Commission takes positions so inconsistent with the protection of investors and its own history and so deferential to the industry that one has to ask: What were they thinking? How can a federal agency be that tone deaf?
This piece was picked up by other outlets, including Corporate Crime Reporter.
Charleston Chronicle—September 19
Current debates on proactive police policies such as stop-and-frisk focuses on the legality and effectiveness of the stops. But a new study co-authored by Columbia Law School Professor Jeffrey Fagan suggests that a third criterion may be even more important in making stops effective: public perceptions of whether the police are acting lawfully and respectfully during stops.
The Christian Science Monitor—September 19
“The bigger question here is stopping the Syrian civil war, and the reality is that Assad is the strongest player in the conflict,” says Michael Doyle, a professor of US foreign and security policy at Columbia University in New York and a former assistant secretary-general at the UN. “It’s hard to imagine any follow-on regime that doesn’t include him or some of his followers,” he says, adding, “So to the question, ‘How will he or they be held accountable?,’ the answer may very well be that they won’t be held accountable.”
Wesleyan Argus—September 19
After graduating from the University over 40 years ago, Theodore M. Shaw ’76 returned to campus this week. On Tuesday, Sept. 17, he spoke to a crowd of students, faculty, and community members in the Smith Reading Room at Olin Library as part of the annual celebration of Constitution Day.
ContractsProf Blog—September 20
Hanoch Dagan (Tel Aviv) and Michael Heller (Columbia)  just posted to SSRN their new contract theory paper, "Freedom of Contracts." 
CNBC—September 20
Professor Michael Graetz, at the Columbia University law school, said the arrangement was a well established tax-reduction strategy. "They're stripping the income out of the U.S. into Ireland, using debt," he said. "Income is flocking to a low-tax country and the deductions are flocking to high-tax countries."
The New York Times—September 21
“You have to say, he didn’t run a tight enough ship,” said John C. Coffee Jr., a professor of law and expert in corporate governance at Columbia University. “It’s not just the London Whale episode. I wouldn’t call that the crime of the century. But taken with everything else, the energy manipulation, the mortgage fraud cases, the Libor rigging, it suggests that there was not enough investment in compliance and the general counsel was not proactive enough. He’s done a very good job at defending the firm but not enough at preventing it in the first place.”
The Christian Science Monitor—September 21
“What we’re hearing from [Rouhani] is so different from what we use to hear from Ahmadinejad,” says Michael Doyle, a professor of US foreign and security policy at Columbia University in New York and a former assistant secretary general at the UN. “We really should step up and start talking with him,” he adds, “if we flub this one, it will be a long time before we get another chance to cool off the crisis with Iran.”
Congressional Quarterly—September 23
DavidPozen, an information law expert at Columbia Law School, isn’t convinced that the judicial process created by the bill would be better for journalists than what exists now, even if current law allowed for the secret seizure of the AP’s phone records. In fact, Pozen says, the reverse might be true.
The New York Times—September 23
“It is perversely inappropriate. You are adding injury to injury. All we’re doing is punishing the shareholders more,” said John C. Coffee Jr., a professor of securities law at Columbia Law School. “This is a case where the victims are the shareholders.”
ABA Journal—September 23
Says Columbia Law School professor John Coffee, who for years has taught an evening class with Rakoff: “Since Arthur Andersen, the government hasn’t indicted many public corporations—and particularly not financial institutions. Plenty have been eligible for indictment. I think enforcement punch has been pulled on many occasions.”
The Conversation—September 23
For us, US lawyer Jack Greenberg is a stellar role model. Over three decades, Greenberg played a key role in the National Association for the Advancement of Colored People Legal Defense and Educational Fund, handling cases about school desegregation, equal employment, fair housing, voter registration and the death penalty.
Edmond Sun—September 23
Columbia Law School Professor Jeffrey Fagan, Tom Tyler of Yale Law School and Amanda Geller of Columbia University’s Mailman School of Public Health examined the attitudes and experiences of a random sample of men ages 18-26 from 37 neighborhoods in New York City that represent the spectrum of stop activity.
The Washington Examiner—September 23
Columbia University law professor Ronald Mann, a frequent visiting scholar at the Federal Reserve, said Warren left a distinct behavioral economic imprint on the CFPB. “Elizabeth Warren has been writing some things using insights from behavioral economics,” Mann said. “Obviously her thinking was important in the forming of the agency and the way it was set up."
The Christian Science Monitor—September 23
“These issues haven’t been played as smoothly as they might have been, and now the repercussions are coming back on Obama and he’s going to pay a price,” says Michael Doyle, a professor of US foreign and security policy at Columbia University in New York and a former assistant secretary-general at the UN. “He’s dug himself a hole he’s going to have to start climbing out of at the General Assembly.”
Social Europe Journal—September 23
Tim Wu is a professor at Columbia Law School, the former chair of media reform group Free Press, and a writer for Slate Magazine
In this speech delivered at TEDxEast, Professor Wu examines issues of scarcity, surplus and innovation and sketches out major challenges for the future
India Today—September 23
Sudhir Krishnaswamy graduated from the National Law School (NLS) in Bangalore in 1998 and won a Rhodes scholarship to go to Oxford…. He also teaches in the Fall Term at Columbia University, where he holds the Dr BR Ambedkar chair of constitutional law.
Sudhir Krishnaswamy is the Dr. B.R. Ambedkar Visiting Professor of Indian Constitutional Law.

JustSecurity—September 25
As David Pozen explains in his terrific forthcoming article, government practice in this and related contexts will often be shaped by a complex array of considerations and incentives.
NBC News—September 26
"You can't sue the United Nations in a domestic court or any court because governments have signed the treaty and some countries like the U.S. have even put it in domestic legislation," explained Larry Johnson, a former U.N. official who teaches international law at Columbia Law School. "People have tried in various jurisdictions but their cases have been thrown out because it's against the treaty and in some cases against domestic law."
Larry Johnson is an adjunct professor.
The Wall Street Journal—September 26
The fact that those roles were highlighted in the settlement suggests that the SEC has looked at “the nature of any financial statements that were made,” and whether the officials “knew those statements were material and correct,” says Harvey Goldschmid, a former SEC commissioner who teaches corporate and securities law at Columbia Law School.
Berkshire Eagle—September 27
"If I was in [Holder's] position, I would be concerned about my legacy," said John Coffee Jr., a professor of securities law at Columbia Law School. "There's been a lot of criticism of officials in Justice being much too soft, timid."
ProPublica—September 27
“When plaintiffs seek to maximize their leverage by suing on a companywide, ‘mega’ basis, they invite judicial reversal,” Columbia law professor John Coffee wrote soon after the decision. “Hubris leads to disaster, and Wal-Mart presents the paradigmatic case of such a train wreck.”
USA Today—September 27
In the capital atoll of the Marshall Islands, "The principal source of drinking water is capturing rainwater runoff from the airport runway," because the groundwater has become undrinkable, says Michael Gerrard, a Columbia law professor who advises the tiny nation on legal remedies.
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