November 2015

November 1-15

Public News Service—November 1
Using Department of Education data from Boston and New York, Columbia University law professor Kimberlé Williams Crenshaw and her associates found black girls were 10 times more likely to be disciplined in New York than white girls – and 11 times more likely in Boston.

The National Law Journal—November 2
The ChIPs organization, celebrating its 10th anniversary, inducted Ginsburg and her daughter, Columbia Law School Professor Jane Ginsburg, into their Hall of Fame.—November 2
According to an analysis of those records by Columbia Law School Professor Jeffrey Fagan, over the course of eight years, the NYPD made nearly 4 and ½ million stops, or more than half the total population in the city. They found a gun in roughly one of every 700 stops, but used force in one of every five. Think about that. In operating the stop and frisk program, the police were about 140 times more likely to use force against a member of the community than they were to find a gun—and this for a program designed to keep the community safe by finding guns.
Associated Press (AP)—November 2
"None of them have gotten to the finish line," said Michael Gerrard, a professor and director of the Sabin Center for Climate Change Law at Columbia University. "It's an uphill climb. The U.S. courts have so far not wanted to set climate policy."
Sacramento Bee—November 2
By Michael B. Gerrard and Nancy Rader
Gov. Jerry Brown signed into law California’s new 50-percent-by-2030 renewable energy standard amid deserved fanfare. But far less attention has been paid to a brewing contradiction: Wind energy projects are being banned or severely restricted in several California counties and, more significantly, across vast federal lands in the state. These restrictions threaten the ability to achieve California’s climate-change goals.
Associated Press (AP)—November 4
"Each incident is a separate violation," said James Tierney, former Maine attorney general and now program director of the National State Attorneys General Program at Columbia Law School. "Advertising, even if the sale does not occur, could violate these laws. Every time there was a banner on a website, every time a salesman said this car is terrific, all of that is a violation."
NOTE: Tierney is a lecturer. 
Time Magazine—November 4
By Matthew C. Waxman
If the Bush years can be caricatured as government by cowboy, energetic but shooting from the hip, the Obama era was government by lawyer, methodical and precise —sometimes to a fault.” So observes New York Times investigative reporter Charlie Savage in Power Wars: Inside Obama’s Post-9/11 Presidency, which provides the most comprehensive account to date of the Obama administration’s approach to national security law and policy-making.
Vice Magazine Online—November 5
Sarah Knuckey, director of Columbia Law School's Human Rights Institute, said the report suggested there was no legitimate basis for targeting the hospital. "What is needed from the US government is a minute by minute explanation of what the attacking forces knew and when, and what decisions were made, and on what basis." said Knuckey. "In particular, the US needs to explain what legally required precautions it took or failed to take to avoid civilian harm."
The Wall Street Journal—November 5
It’s simply incorrect to say that the EPA is giving the states a slew of specific mandates and very little time to implement them. The EPA has instead given each state a bottom-line target and left broad discretion in how to meet it. The EPA has also extended the state deadlines to submit plans and then to implement them. This takes away the legal argument that the EPA is coercing the states… – Prof. Michael B. Gerrard, Sabin Center for Climate Change Law, Columbia Law School
Houston Chronicle—November 5
"Investors should understand what the risks are of the companies they are investing in," said Edward Lloyd, a law professor at Columbia University. "Disclosing that is clearly in the interest of the investors and probably the companies as well. If you are going to disclose such things, you have to investigate them and in analyzing the risks, you may then come up with a solution."
The New York Times—November 5
“I think this shows that the government can obtain convictions even in complicated cases, and this was not the simplest case,” said John Coffee, a law professor at Columbia University.—November 6
Having the EPA focus on this in a comprehensive way makes a lot of sense and could lead to faster cleanup,” said Ed Lloyd, an environmental law expert at Columbia Law School. “Without it you’re not going to make nearly as much progress.”
Mashable—November 6
According to the Times, the investigation will also focus on whether the company warned investors about potential financial risks related to the need to limit fossil fuel use. Other states could launch their own investigations under their securities laws but could not formally join New York's investigation, according to Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University.
The New York Times—November 6
Most importantly, there is the Martin Act, which Michael B. Gerrard, an environmental law professor at Columbia, called “one of the most powerful tools available to any government entity in the United States to investigate corporations before actually filing suit.” … Those records alone will provide the map for any possible next steps of the investigation, said James E. Tierney, a former Maine attorney general who directs the national state attorneys general program at Columbia University. Mr. Tierney was deeply involved with the state lawsuits against the tobacco industry that led to a multibillion-dollar settlement. That settlement started with two states, Mississippi and Minnesota.
NOTE: Tierney is a lecturer.
CFO—November 6
The Securities and Exchange Commission requires that companies disclose the risks of climate change to their business operations, legal experts say. But the SEC “has taken almost no enforcement actions — to the great frustration of environmental advocates — and so to a certain extent the New York attorney general is jumping into that void,” Michael Gerrard, a law professor at Columbia University, told the L.A. Times.
MSN News—November 7
"There are lots of types of companies that are good at tax planning," says Michael Graetz, a professor at Columbia Law School and a leading expert on international tax law. "The tech companies have the luxury of not having a lot of plants and equipment. They're more mobile."
The Brian Lehrer Show, WNYC-FM—November 9
Katherine Franke, professor of law and director of the Center for Gender and Sexuality Law at Columbia and the author of Wedlocked: The Perils of Marriage Equality (NYU Press, 2015), examines the price same sex couples might pay in moving into the mainstream, from the freedom of unregulated outlaw status to the state sanctioning and rules of legal marriage.
Philadelphia Inquirer—November 9
Noting that some cities had no crime increase this year, Jeffrey Fagan, a professor at Columbia Law School, said there was "no evidence other than a few unconfirmed anecdotes that there is de-policing in U.S. cities, or that police actions have led to a rise in homicide in a handful of cities."
Bloomberg BNA—November 9
William Simon, a professor who studies legal ethics at Columbia Law School, said he didn’t want to weigh in on specifics, but the issue of confidentiality in a situation like this presents a tricky legal problem. “The authority is unclear on what happens in that situation. There are arguments on both sides. On the one hand, you could say it’s the client’s expectations that should be protected. On other hand, you could say that if someone isn’t licensed, courts shouldn’t honor that protection,” Simon said.
Balkinization—November 9
American legal scholars and historians generally connect the rise of the “national security state” after World War II to the expansion of executive autonomy over “national security” policy making. While the quantitative growth of the national security state from the mid-1940s to the mid-1950s is unquestionable, my forthcoming book, Fortress of Liberty: The Rise and Fall of the Draft and the Remaking of American Law, argues that the qualitative story of increasing executive autonomy is too simplistic.
The Nation—November 9
What protections, if any, does the law offer to a woman as poor and disempowered as Manju Das against a man as wealthy and powerful as Anil Kumar? So I decided to bring Das’s case to several lawyers, beginning with Daniel C. Richman, professor of criminal law at Columbia University. I was hoping he could answer the multi-million dollar question: does she have any right to the money that once filled all those offshore accounts held her in name?
Charleston Gazette-Mail—November 10
“That legal issue is as important an unanswered question as there is in criminal procedure,” said Paul Shechtman, a professor at Columbia Law School, who filed an amicus brief in the case.
NOTE: Shechtman is a lecturer.
The Yale Politic—November 10
The dwindling influence of FECA is evidenced by the fact that the 2012 presidential election was the first since the start of the program in which no public funds were spent. Many, including Richard Briffault, a professor at Columbia Law School and Chair of the Conflicts of Interest Board of the City of New York, believe that national public funding could be revived if more funds were given to the system to allow candidates to run an effective campaign without relying on large private donors. The question still remains: is public funding a desirable solution?
The Huffington Post—November 10
The African American Policy Forum (AAPF) has advocated for race and gender justice since its founding in New York City in 1996. Kimberlé Crenshaw, law professor at Columbia University and UCLA and a co-founder of the organization, told The Huffington Post that the "Say Her Name" campaign was the result of a need for a more inclusive movement towards ending police violence.
Al Jazeera—November 10
“This case could either cut back on class actions a little or a lot.” John Coffee is a professor at Columbia Law School. “If all they talk about is a need for a more typical, more representive plaintiff to represent the class, that’s a small injury. But if they were to require either, that you have to proove every member of the class had standing before class could be certified, that would be a major barrier that might prevent many consumer injury or tort cases from ever being certified.”
The Indian Express—November 11
Written by Lisa Sachs, Lise Johnson, Sudhanshu Roy
The April release of India’s draft model bilateral investment treaty 1(BIT), which is expected to be approved by the cabinet soon, has generated a rich public debate on its international investment regime. There are important questions about the purpose and content of investment treaties, both in India and other countries. However, some reactions — like August’s Law Commission report suggesting that the model BIT was not sufficiently investor-friendly — frame the discussion too narrowly, ignoring key questions and objectives behind India’s transitioning investment policy regime.
NOTE: Sachs is a lecturer
VICE—November 11
So to find out what the situation might be after President Cruz banishes all the tax collectors, we called up Columbia Law School professor Michael Graetz, a former deputy assistant secretary for tax policy at the US Treasury and one of the country's leading experts in tax policy. Graetz has already voiced skepticism about the IRS—hell, he even wrote a book outlining his own tax plan with a picture of an IRS 1040 form being burned on the cover. He seemed like he might be of one mind with Ted Cruz (spoiler: he wasn't).
Inside Climate News—November 11
But Exxon may have legal reasons not to accept the Tri-State resolution, according to Michael Gerrard, a professor of environmental law at Columbia University. "It seems the resolution asks Exxon to admit certain things that Exxon may not want to admit," Gerrard said. "I could imagine any admission of this sort playing into some of the new theories of liability being considered."
The Wall Street Journal—November 12
A VAT would help the U.S. reduce other marginal tax rates and turn its status as a low-tax country into an economic advantage, said Michael Graetz, a Columbia Law School professor and former Treasury official under President George H.W. Bush. Mr. Graetz, who is one of the VAT’s leading U.S. proponents, said: “We have to become more competitive, and I don’t know how you get there without a value-added tax of some sort.”
VICE—November 12
Michael Gerrard, who directs the Sabin Center for Climate Change Law at Columbia University, said it was premature to say whether or not the attorney general has a strong case, since Schneiderman is only investigating at this point. "It's fair to call this the opening of a new front in the legal battles against climate change," Gerrard said.
The New York Times—November 13
”The minute it’s passed, I’m going to call my dean and tell her to pay me only in goods,” said Michael J. Graetz, a tax professor at Columbia Law School. “Buy me a house, buy me some groceries every week, buy me meals.” That’s because the three-page plan avoids complex rules about fringe benefits by saying noncash compensation is tax-free.
The Washington Post—November 13
“The hard question — have you stopped doing the things that got you into court in the first place — is something that these consent decrees seem to have trouble answering,” said Jeffrey Fagan, a professor of law at Columbia University who has studied reform agreements.
NOTE: This story was produced in conjunction with Frontline and was also published on, as well as in The Miami Herald.
Bloomberg BNA—November 13
Maloney's office confirmed to Bloomberg BNA on Nov. 12 that the bill is forthcoming. The measure is a response to a recent Harvard-Columbia paper revealing that trading in the 8-K gap gives insiders “systematic abnormal returns of 42 basis points on average, per trade”. Co-author Robert Jackson Jr., co-director of Columbia Law School's Ira M. Millstein Center for Global Markets and Corporate Ownership, said the findings show “that SEC rules leave open a significant opportunity for insiders to trade on corporate information.”
Washington Examiner—November 14
The justices could decide to scrap the "undue burden" and create an entirely new standard for measuring the constitutionality of such regulations, said Katherine Franke, law professor at Columbia Law School.
The New York Times—November 15
Now that those families are free to make their cases in the immigration court system, they have “every incentive” to attend their hearings, said Elora Mukherjee, a professor at Columbia Law School who represents families in Dilley. “Ankle monitors are appropriate for certain populations,” Ms. Mukherjee said. “For felons accused of violent crimes, it might make sense to follow where they are going, who they are communicating with. We’re dealing with a totally different population — the victims of violence, vulnerable trauma survivors who have gone through so much and don’t need a physical reminder of what they’ve been through.”
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