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May 2015

May 1-15


WNYC—May 1
Richard Briffault, a law professor with Columbia University's Law School, said Shaker Heights had been consistent in always banning political ads on public transportation. "In some ways," he said, "the question here is if the MTA allowed (political speech) in the past, and now they're narrowing it down, I'm not quite sure what rules would apply if they decide they want to redefine the scope of their public forum."
 
Daily Environment Report—May 1
While section 102 does require congressional approval of any binding interstate agreements, Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, said that provision is also intended to encourage just that sort of interstate collaboration. “Section 102 affirmatively encourages cooperation among states, “ he told Bloomberg BNA April 30.
 
The Washington Spectator—May 1
By Patricia J. Williams
As Republican presidential hopefuls race to embrace the “religious freedom” of businesses to refuse to serve the LGBT community, it’s worth taking a moment to consider the ideological history behind the laws that focused the nation’s attention on Indiana and Arkansas, and, of course, the glibly homophobic management of Memories Pizza.
 
The New York Times—May 1
After months of fighting one of Wall Street’s most prominent activist investors, Nelson Peltz, DuPont was dealt a setback. As John C. Coffee Jr. of Columbia Law School put it, “DuPont has regularly outperformed the S.&P. 500 index and virtually all other metrics of corporate profitability,” a sentiment I concurred with in a column a few months ago.
 
The New Yorker—May 3
By Tim Wu
When a man named Herb MacDonald pioneered the pay-one-price, all-you-can-eat buffet in Las Vegas sometime in the in the middle of the last century, he probably did not realize that his restaurant pricing would become a model for so many businesses, particularly in the media industries. The most prominent imitators, of course, are pay-TV providers (cable, satellite, and fibre optic) who for one price offer subscriptions to a whole mess of channels such as Oxygen, HLN, MTV, Fox News, Bravo, MSNBC, E!, and so forth.
 
NPR—May 3
Now lawyers in Belgium have filed a similar lawsuit. Lawyers from Australia and Canada have been in touch with the Dutch advocates. It has even caught the attention of American experts. "I think the people who are following climate change law are watching this case very carefully around the world," says Michael Gerrard, who directs the climate change law center at Columbia Law School. "If the Dutch court were to rule against the state in this case," he says, "That would be a very powerful signal that would probably then lead to similar litigation in many other countries."

Just Security—May 4
In releasing information on April 23 about a drone strike that killed two western hostages in Pakistan in January, the Obama administration demonstrated that it is able and willing to acknowledge responsibility for strikes, carry out investigations into them, and publicly offer compensation to victims’ families. This approach should be the rule rather than the exception.

Lawfare—May 4
The topic of International Law in the U.S. Legal System is an important one today for many reasons (not least, the current undertaking to draft a new Restatement 4th of the Foreign Relations Law of the United States, ably co-helmed by UVA’s Paul Stephan and Columbia’s Sarah Cleveland).
 
The Huffington Post—May 4
As the inaugural speaker for the "Just Words? Free Speech and Social Change" lecture series, hosted by Dartmouth College's Gender Research Institute, critical race theorist and Columbia University Law School professor Kimberlé Crenshaw spoke before an intimate gathering of students, faculty and members of the community. Without hesitation, Crenshaw primed her audience with an explanation of post-racialism. "This frame identifies racial issues but does not locate those problems having to do with racial power and structural and institutionalized racism."

Australia Plus—May 4
While that review found the evidence was inconclusive, Jeffrey Fagan, a professor of law at Columbia University in the US, told Fact Check he believed that there was no evidence that showed the death penalty deterred. Professor Fagan, who appeared as an expert witness for Mr Chan and Mr Sukumaran in an unsuccessful appeal in 2007, said there was "no credible scientific evidence that the death penalty deters criminal behaviour".

The Columbia Daily Spectator—May 4
As Law School professor Suzanne Goldberg took on two new positions created to address sexual assault, the University saw reform to the gender-based misconduct policy as well as the opening of Title IX investigations of both Barnard and Columbia. "There are tremendous resources and activities already in place,” Goldberg told Spectator in August. “My aims are to leverage those efforts across the University to focus on prevention and training throughout the school year and to support a climate on campus where each of us feels responsible to create a respectful and safe community.”
 
JD Supra—May 4
Trend spotters have observed that one of the first victims of these “financial machinations” appears to be R&D spending. As reported in this post by Professor John Coffee, that observation finds support in a recent study. Looking at campaigns launched by activist hedge funds, the “study finds that even those targets that escape a takeover still are forced to curtail their R&D expenditures by more than half over the next four years.”
 
Buzzfeed—May 5
But onlookers worry about the implications for investors. “Everything about the crowdfunding industry suggests that conflicts of interest will be rampant and that the insiders will be playing fast and loose with investors’ funds. This is but one case in point,” John C. Coffee Jr., a securities law professor at Columbia University, told BuzzFeed News in an email. Still, he said, “if appropriate disclosures are made, a conflict of interest does not make the transaction illegal.”
 
The New York Times—May 5
I called Suzanne B. Goldberg, director of Columbia Law School’s Center for Gender & Sexuality Law. She noted, however, that the cultural storms were buffeting the sports world with gale force. “It’s surprising that a company whose fan base is primarily women would not directly express itself on this question,” she said. “You would expect the Knicks to be upfront about affirming a basketball environment free from sexual harassment.
 
Similar stories appeared in other outlets, including Sports Business Daily.

SCOTUSBlog—May 5
By Ronald Mann
In Bullard v. Hyde Park Savings Bank yesterday, the Court unanimously rebuffed efforts to gain review of orders that deny confirmation of plans in a bankruptcy proceeding. Although the case arose in the context of a small consumer bankruptcy, it has stark repercussions for the Chapter 11 proceedings that reorganize the affairs of large firms.

Quadrant—May 5
In an important book, Is Administrative Law Unlawful? (2014), the Columbia Law School professor Philip Hamburger traces the origins of such delegated legislative power back past the creation of regulatory agencies at the beginning of the twentieth century—where most scholars’ history stops—all the way to the pronouncements of medieval kings. Hamburger draws a distinction between administrative pronouncements by executive governments that are intended to bind officers of the executive and those that are intended to bind society more generally.
 
WNYC—May 6
Richard Briffault, professor of legislation at Columbia Law School and chair of the New York City Conflicts of Interest Board, and Dick Dadey, executive director of Citizens Union, talk about rules that govern when helping a family member crosses ethical and legal lines.
 
The New Yorker—May 6
By Tim Wu
What is going on with Laurence Tribe, professor at Harvard Law School, mentor to Barack Obama, and one of the most venerated legal scholars in the country? Over the past month, he has come under widespread and sometimes vicious attack. He has been called a sellout and a traitor whose arguments are “baseless” and “far-fetched” by professors at New York University, Harvard, and Georgetown. Most of the specific criticism arises from his representation of Peabody Energy, a coal company, in its effort to squash the Environmental Protection Agency’s regulation of carbon emissions.

The New York Times—May 8
The problem, as Judge Gerard Lynch of the Second Circuit Court of Appeals rightly pointed out in his 97-page opinion, is that “it is a far stretch to say that Congress was aware” of what the intelligence court was doing. To the contrary, Judge Lynch wrote, “knowledge of the program was intentionally kept to a minimum, both within Congress and among the public,” and there was “no opportunity for broad discussion” about whether the court’s interpretation was correct.
 
Note: Coverage of this ruling appeared in numerous other outlets, including the Washington Post, Politico, National Journal, and The Hill.
 
The New York Times—May 8
The 37 new rules in 11 states are part of a strategy accelerated by abortion opponents in 2011, when provisions restricting abortion access began sweeping state legislatures. “State legislatures are restricting how doctors provide medical care related to abortion, where doctors can provide that care, what doctors can say to patients when they provide that care and more,” said Suzanne B. Goldberg, the director of Columbia Law School’s Center for Gender and Sexuality Law.
 
Malay Mail Online—May 8
The Washington Post, however, reported last year criminologists as saying that there is no evidence to show that executions deter crime. The US paper reported that Columbia Law School’s Jeffrey Fagan and other researchers found little difference between the murder rates in Hong Kong, which abolished the death penalty in 1993, and Singapore, which imposes a mandatory death sentence for murder and other crimes and carries out the punishment typically within a year and a half.
Oxford University Press Blog—May 8
Since the controversial term “net neutrality” was coined by Professor Tim Wu of Columbia Law School in 2003, much of the debates on net neutrality revolved around the potential consequences of network owners exercising additional control over the data traffic in their networks.
 
The New York Times—May 8
John C. Coffee Jr., a professor and expert in securities law at Columbia Law School, cited another factor: the increasing fear of bankers, lawyers and boards that they will be held accountable for their bad advice or decisions. Two recent opinions handed down by Leo E. Strine Jr. and J. Travis Laster of Delaware Chancery Court have imposed liability on investment banks and boards for deals that turned sour or that were rife with conflicts.
 
Ars Technica—May 8
But a new, unlikely voice has entered the debate about whether Snowden is a whistleblower or traitor: Judge Robert Sack, one of the three judges on the 2nd US Circuit Court of Appeals that declared Thursday that the dragnet "exceeds the scope of what Congress has authorized" (PDF).
 
Sack is an adjunct professor.
               
Polityorg.za—May 8
Renown criminologist Jeffrey Fagan, a professor of law at Columbia University, has publically stated that there is no credible scientific evidence that the death penalty deters criminal behaviour. “Executions serve only to satisfy the urge for vengeance. Any retributive value is short-lived, lasting only until the next crime," says Fagan.
 
The Daily Beast—May 8
Matthew Waxman, a law professor and former senior national security official in the George W. Bush administration, has been tapped to be the next general counsel for the National Security Agency, sources familiar with the matter told The Daily Beast on Friday. As the chief legal adviser to the NSA director, the general counsel is on the agency’s senior leadership team and runs an office of more than 100 attorneys who provide legal advice and guidance on surveillance operations.

The New York Times—May 10
On its journey from outlaw roots to mainstream acceptance, graffiti has gone from quickly drawn tags inside subway cars to elaborate murals adorning entire sides of buildings. Richard Lehv, a trademark lawyer, said he had never heard of a hashtag being trademarked. “Yes, you can protect a phrase like ‘taking back the streets,’ but you don’t get a monopoly for any and all purposes,” he said.
 
Lehv is a lecturer.

The Atlantic—May 11
“The gender-exclusive focus on boys (of color) as ground zero … continues to undermine the well-being of our entire community,” said Kimberlé Crenshaw, a professor of law at UCLA and Columbia who cofounded the African American Policy Forum, a gender and racial-justice think tank based in New York City. “We have to accept that there are wrongs that are happening to black girls.”  
 
National—May 11
The inherent tensions between advocacy and legal academia
Tim Wu has a great piece on the conflicts inherent to working in both legal academia and private practice. At the centre of the article is Laurence Tribe, the famed Harvard Law School professor who taught Barack Obama, and has represented a number of corporate interest, including the coal company Peabody Energy against the U.S. Environmental Protection Agency.

The Columbia Daily Spectator—May 12
By Suzanne Goldberg
As the campus swirls in exams, papers, and graduation setup, it is a fitting time to pause, especially on a sunny afternoon when you need a study break, and consider what it has meant to be a member of the Columbia University community during this academic year. And, as a representative of one of the newest community members, I’d like to share a quick report about Office of University Life’s work on two community-related initiatives – one on race, ethnicity, disparities and justice and the other related to sexual respect and community citizenship.
 
BWOG—May 12
On April 13, Suzanne Goldberg, three months into her new role at the head of the Office of University Life, gave the keynote address at the Office’s inaugural event—a screening of the film Selma, followed by a faculty panel discussion. Formed in late January, the Office is still in its infancy, consisting of what Goldberg called “a small but dedicated office” of three staffers.
 
Slate—May 13
In the New Yorker, Tim Wu has questioned the degree to which Netflix’s original programming really derives from purely metric analysis. Wu writes that he pressed Ted Sarandos, the company’s chief content officer, on the matter, proposing that human judgment played a larger role than the company admits. According to Wu, Sarandos agreed, “It is important to know which data to ignore,” and added that his decisions were 70 percent data, 30 percent judgment.
 
Instapundit—May 13
As my law Professor Mike Graetz said, lawyers are paid a lot for the same reason plumbers and garbagemen are paid a lot: People wouldn’t do it for less. Lawyers With Lowest Pay Report More Happiness. Likewise, the law jobs people find satisfying are able to attract people without having to pay as much.
 
Global Legal Post—May 13
Matthew Waxman, who campaigned for US detainees to be treated in accordance with the Geneva Convention when he was in charge of detainee policy, has been mooted for the job. Mr Wallman has been a professor at Columbia Law School since 2007.The chief legal adviser to the NSA director is a member of the agency’s senior leadership team and is in charge of more than 100 lawyers giving legal advice on surveillance operations.
 
ACLU—May 13
Of course, the Obama administration — and Congress and the courts — must do much more to ensure meaningful transparency about and oversight over our government's "targeted" killing program. Together with Columbia Law Professor Sarah Knuckey, I recently wrote about the urgent need for robust oversight, and what a full, transparent, outside review of the entire lethal program should look like.
 
Bloomberg Business—May 13
Another board member, David Schizer, is a professor of law and economics at Columbia Law School, Lenfest's alma mater, where Schizer previously served as dean. He is an expert on energy law and corporate governance.
 
Similar stories appeared in other outlets, including Philly.com
 
International Business Times—May 13
Even before the term net neutrality was coined, in 2003 by Columbia University law professor Tim Wu, the concept was called "open access Internet," and AOL was one of its strongest supporters. In the days of dial-up Internet, AOL heavily lobbied federal and state governments warning that cable operators offering what was then called "high-speed Internet" could control access to the global network and favor some kinds of traffic over others.
 
Vice News—May 13
But money may remain the administration's most powerful tool, said Michael Gerrard, director of Columbia University's Sabin Center for Climate Change Law. In the future, the administration could withhold federal funding from states looking to build roads, bridges, or other major infrastructure in areas that might be underwater in a few decades.
 
The New York Law Journal—May 14
By Michael B. Gerrard
On April 30, President Barack Obama signed into law the Energy Efficiency Improvement Act of 2015 (EEIA), a much pared-down version of a bill that Sen. Jeanne Shaheen (D-N.H). and Sen. Rob Portman (R-Ohio) have been pushing for several years. Several other energy-efficiency bills just underwent hearings in Congress.

The Altamont Enterprise Opinion—May 14
There is a difference between a 16-year-old and a 23-year-old. It has to do with brain development. “Brain research — and even brain-imaging technology — has had an impact in changing people’s views,” said Elizabeth S. Scott, a Columbia professor and co-author of “Rethinking Juvenile Justice,” in a Columbia Law School Magazine article. “There’s something about colorful pictures of the brain that seems to impress people. When they can actually see the differences in adolescent brains, they can believe it.”
 
The Huffington Post—May 14
Katherine Franke, a professor at Columbia Law School and the director of the Center for Gender & Sexuality Law, described the newly proposed anti-gay laws in Texas and other states as a “frontlash” against the Supreme Court’s anticipated ruling, similar to steps southern states took in the 1950s and '60s to fight back against national changes in racial equality. “Should a public official be required not to follow a Supreme Court mandate? That’s just unconstitutional,” she said.

NY1 News—May 14
Polls show drivers winning public opinion, but environmental law scholar Michael Gerrard says legal cases focusing on impartiality are rarely successful. Plus, a legal challenge would have to wait until the report's done. "You can't have incremental lawsuits along the way, challenging each step of the process," Gerrard said. "You have to wait until the end, and only then is it ripe for litigation."
 
BBC—May 15
When the state decides whether or not to put someone to death, it approaches the matter in a methodical way. But as jurors are discovering, the decision is about emotion as much as logic. "We try to treat what's going on as a heavily structured legal process, but there's no denying that there's a critical moral aspect," said Daniel Richman, a professor at Columbia Law School.

New York Law Journal—May 15
Lewis, now 46, labored for years to assert his innocence pro se, but his efforts at state habeas and other post-trial relief were unsuccessful. He was joined in his efforts in 2009 by Brett Dignam, then a professor at Yale Law School and now a Columbia Law School clinical professor at Morningside Heights Legal Services... Clinical professor Elora Mukherjee was on the brief for Lewis at the Second Circuit.

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