Columbia Law School Clip Report, February 1-15, 2017
The New Yorker—February 1
Al Homssi was supposed to be at work today, seeing patients. Instead, he remains in the United Arab Emirates while three lawyers—Thomas Anthony Durkin, Robin V. Waters, and Bernard E. Harcourt—are toiling on his behalf… “He’s in a more precarious position because he’s on a J-1 visa—a medical-residency visa for work—than someone who’s a permanent resident,” Harcourt told me…A professor at Columbia Law School, Harcourt was speaking from the airport, on his way to Chicago. “We’re headed to court to get as swift a resolution as possible,” he said.
The Washington Post—February 1
Columbia University law professor Jamal Greene wrote extensively about originalism's "race problem" in 2011: A racially sensitive constitutionalism must always, therefore, hold out the possibility of legitimate dissent from history. Originalism denies that possibility, and so for me, as I suspect for many African-Americans, it speaks in a foreign tongue.
One of the most telling Trump pushbacks came from Goldman Sachs GS, -0.51%CEO Lloyd Blankfein, according to Columbia Law School professor and corporate-governance expert John Coffee. Blankfein left a voicemail to employees saying the policy is bad for the company, and rightly so. “A lot of the companies that have been outspoken get a very large percentage of their revenue internationally. And this looks like an attack on internationalism, which could hurt them,” says Coffee.
BuzzFeed News—February 1
Tim Wu, a law professor at Columbia University who assisted with the first year of the Attorney General office’s investigation, told BuzzFeed News that the suit is “groundbreaking” because “it puts the consumer first” in a new way that gets to some of the problems in the industry. “For the first time it holds cable companies to account for what they say,” he said. “It also relies on the idea that when you promise the consumer an internet service, they have to give them the internet service they paid for.”
E&E News—February 1
Michael Burger, executive director of the Sabin Center for Climate Change Law, said that the concerns about Chevron from conservatives seem to assume that there are going to be conservative judges reviewing "more liberal executive agency decisions, and therefore there's a need for this correction."…"It's odd that the Chevron doctrine has become this sort of cause of the Republican Party, and of the right wing of the Republican Party in particular," Burger said. “The Chevron doctrine is a fairly straightforward analytical tool that courts use to maintain a proper balance of powers between Congress, the executive branch and the courts."
Foreign Policy—February 1
Gorsuch, to a greater degree than Scalia, is known to be skeptical of deference to governmental agencies, and so might actually be troublesome for immigration reforms pushed by the administration," said Columbia Law School Professor Philip Bobbitt, who specializes in constitutional law and international security, told Foreign Policy.
The Associated Press—February 1
“It’s terrifying,” said Sarah Knuckey, director of the Human Rights Clinic at Columbia Law School. “We’re damaging international research, including on issues like health and medicine.” Students in Knuckey’s clinic have been working with a think tank in Yemen to explore the health consequences of the country’s civil war, inviting scholars to lecture and planning a conference in New York this year. Because of the travel ban, they are trying to move the event to Canada.
In siding with those protesters, CEOs are breaking—and perhaps refashioning — fundamental rules of brand management and advertising strategy, says Tim Wu, a law professor at Columbia University and the author of “The Attention Merchants: The Epic Scramble to Get Inside Our Heads,” a history of the advertising industry. “[Brands] try to stay away from divisive issues that could alienate consumers,” Wu explains. “That’s been accepted wisdom since World War II.” The ongoing corporate pile-on against Trump’s executive order, Wu says, is “unprecedented in the history of the United States.”
"11th-hour rule." While all relevant procedures were followed in the formulation of the rule, the final rule did materialize quicker than many federal rules do, experts said. "The rule was proposed in September and finalized in December," said Columbia Law School professor Gillian Metzger. "In practice, that's a pretty fast turnaround.”
The Intercept—February 1
“Roe’s basic holding is that states cannot criminalize abortion. That’s the basic holding. And so the fact that you can’t criminalize it means, necessarily, that you have a right to do it,” said Carol Sanger, a professor at Columbia Law School. “So, you have the right to choose; you can’t have that choice taken away from you.”
Business Insider—February 2
An executive order is a "directive by the president to the officers and officials of the executive branch," Columbia law professor and former Associate Counsel to President Jimmy Carter, Philip Bobbitt told Business Insider. While the president can't order private citizens to specifically do something, they are still affected by executive orders insofar as their interactions with executive officials. "They do have the effect of law," Bobbitt explained.
What the Florida meme-maker and the Zimbabwean reporter have in common is that they both use Facebook for their careers. And when they got blocked, they found it was impossible to reach a human being and reconnect. Tim Wu suspects more people will have this experience. He's a professor at Columbia Law School and writes about the online economy. Wu says think of Facebook as an industrial park.
Climate Central—February 2
"I am actually surprised to say that none of this strikes me as particularly egregious, but perhaps that is because my expectations are so low," said Jessica Wentz, a fellow at the Sabin Center for Climate Change Law.
"This will add to the general demoralization within the DoJ and may increase the exodus of the career professional staff," said Columbia University law school professor John Coffee. "It is not a huge surprise that she was fired and it parallels the Saturday Night Massacre under Nixon, but for the professional career person it increases the fear that they will be forced to defend hopelessly vulnerable politicized decisions," he added.
Tim Wu, a professor at Columbia Law School and author of The Attention Merchants, says it's as though Facebook were an industrial park. Users started setting up offices in the park, using the roads to travel, treating it like a public utility. But legally, it's private. So when Facebook shuts off the road that goes to your shop, or puts in a new toll, he says, "That's it, you're done."
Bloomberg BNA—February 3
Researchers at the Columbia Center on Sustainable Investment say the payment disclosures could help institutional investors see which projects are more susceptible to commodity price downturns or better understand risks of tax policy changes, for example…“Having comparable information is the only way to make governance progress,” Perrine Toledano, who leads the Columbia Center’s extractive industry work, told Bloomberg BNA.
Note: Toledano is a lead economics and policy researcher with the Columbia Center on Sustainable Investment.
New York Daily News—February 4
To date, however, no court has ruled on the order’s legality. That question, experts say, will be answered soon. “It’s a matter of weeks — not months,” predicted Philip Bobbitt, a professor of constitutional law at Columbia Law School.
The New York Times—February 7
When I called Kimberlé Crenshaw in January, she had just returned home to Los Angeles from the march on Washington, where she walked with a group of women from the African American Policy Forum. Her group was so far back in the crowd that they couldn’t hear the rally, and “I’m kind of glad about it,” she told me. “We were in this sea of humanity.” Wading through the crowd, she said, “I saw all the different issues and people that had found their way under the banner of the Women’s March. It was the embodiment of the intersectional sensibilities that a lot of us have been working on for a very long time.”
Los Angeles Times—February 7
By Jamal Greene
The Supreme Court confirmation process is broken. Republicans say Democrats started it with their ruthless take down of Robert Bork three decades ago. Democrats say Republicans crossed a line when they covered their ears and pretended President Obama had not nominated Merrick Garland to fill the seat left vacant by Justice Antonin Scalia’s death. It is high time to say to the Senate what a parent says to bickering toddlers: I don’t care who started it, I care who ends it.
This week we're talking with Tim Wu, professor of law at Columbia University and author of the book "The Attention Merchants." Back in 2003, Wu coined the phrase "network neutrality," the principle that internet service providers should enable equal access to all content and applications, and not favor one source of content over another. Hint: This is about what you are currently streaming as you read this.
The House GOP plan is a form of consumption tax. But while it is similar to VATs around the world, the technical details differ from those VATs—and that’s the rub. It means the proposal is likely to generate unique issues which could take even longer to resolve. “There is no tax like this anywhere in the world,” said Columbia University law professor Michael Graetz, who has written extensively on his own VAT proposal.
The Independent—February 7
Donald Trump's alleged human rights abuses are being tracked by one of the world's best legal institutions
The "Trump Human Rights Tracker" was designed by the Human Rights Law Review (HRLR), a journal produced by Columbia University, which sits among most highly respected legal institutions in the world. After it launched last week, global interest in in the tool was so great that its server crashed…Sarah Knuckey, director of Columbia’s Human Rights Clinic, said the huge interest showed “just how widespread the concerns are about what Trump is doing”.
Fox News—February 8
Lee Gelernt, a law professor at Columbia and ACLU attorney, said on Fox News’ “The First 100 Days,” that both sides did well in court, but he thinks “judges got it right to push back on the U.S. government.”
Note: Gelernt is a lecturer in law.
Richard Briffault, a professor at Columbia Law School and an expert on government ethics, said the president was violating general ethical principles with his Nordstrom tweet, even if he may not be breaking any specific law. “I don't know if it violates any specific rule, but it certainly violates the ethical principle that public officials should not use their offices to provide benefits to their family members,” Briffault said.
Richard Briffault, an expert in government ethics at Columbia Law School, told AFP that Trump's use of the presidential bully pulpit to defend his daughter's business "was inconsistent with any notion of the ethical obligations of a public official.” "What this suggests is that he hasn't fully internalized the consequence of being the most important public official in the country," Briffault said.
We caught up with former Lt. Governor candidate and Columbia Law professor Tim Wu who has a lot to say about both the future of Net Neutrality which may be in jeopardy, and the Attorney General’s lawsuit against Spectrum/Time Warner cable.
The Hill—February 8
Matthew C. Waxman, a professor at Columbia Law School, who served in senior positions in the National Security Council, Department of State and Defense Department under George W. Bush—and clerked for Supreme Court Justice David Souter—has a broad perspective of what the president can and cannot do. “It's true that courts are often a check on unconstitutional actions, but when cases involve national security or foreign affairs, they usually give great weight or deference to executive branch judgments,” Waxman told The Hill. But, that said, Waxman argues, these are different times, because of the way that the executive order challenges the law and the courts.
“There are several advantages to a carbon tax,” said Michael B. Gerrard, director of Columbia Law School's Sabin Center for Climate Change Law. “There's already an administrative process in place to collect taxes: the IRS. [A carbon tax] doesn't pick winners and losers. It doesn't make technological advances.”
The Atlantic—February 9
Aiken’s decision that there might be a constitutional right to a sound environment is the first ever from a federal court, notes Michael Gerrard, the director of the Sabin Center for Climate Change Law at Columbia University. But even if the plaintiffs prevail, Gerrard doesn’t think the decision would survive a Supreme Court review—especially with one or two justices tapped by Trump. The justices have shown reluctance to legislate in lieu of Congress on environmental issues in the past, and they don’t often declare new rights, he says.
The New York Times—February 9
Daniel Richman, a former federal prosecutor who now teaches criminal law at Columbia University, was less impressed by Mr. Trump’s cartel order, noting that “the targeting of international criminal organizations has always been a high priority, and I supposed he is suggesting that priority will continue.”
A Plus—February 9
Michael Gerrard, a Columbia University professor who teaches classes on environmental law, said he does believe a carbon tax would be one of the best ways to deal with climate change, though he was clear that he hadn't seen any details of the proposal. "If it were properly structured and high enough it would send powerful signals throughout the economy and spur tech development and emissions reductions," Gerrard told A Plus. "I might prefer using some of the money for research and development and other purposes, but if they were at a table talking about a carbon tax that would be a major step in the right direction.”
The naming of Trump in the case sent a strong a political message, said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University in New York City. "It has the symbolic effect of targeting the individual who has lately become the biggest obstacle to the U.S.'s action fighting climate change," he said.
We also turn to Columbia Law School professor and chair of the board of the Center for Constitutional Rights Katherine Franke to answer our questions about what power the Attorney General’s office actually has, what tools the Justice Department has to enact its agenda, and whether there’s any way to resist the legal restrictions that will surely come…“If the chief legal officer for the United States and the president of the United States refuse to respect the properly-issued rulings from the federal court,” Franke says, “what we have is a constitutional crisis of an enormous magnitude, and we should all be very worried about this.”
The New York Times—February 10
But according to calculations by Michael J. Graetz, a Columbia law professor, a currency shift of that scale implies that Americans who hold foreign assets would lose $6.1 trillion, and foreign holders of assets in the United States would gain as much as $8.1 trillion. Meanwhile, because the dollar is the world’s benchmark currency, many businesses and governments outside the United States borrow in it, especially in emerging-market countries where confidence in the domestic currency is low.
National Geographic—February 11
“[The Climate Leadership Council plan] is designed specifically to appeal to the business community, which has been desperate for some kind of regulatory certainty,” says Justin Gundlach, a fellow at Columbia Law School’s Sabin Center for Climate Change Law. “At this point, a number of companies are assuming that [a carbon tax] will happen eventually, so they might as well get ready.”
The Christian Science Monitor—February 11
As Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, told Slate, "There is no question that [Judge Aiken’s] decision, in both its eloquence and its bold declaration of a new constitutional right, breaks new ground.”
"And not take this blunderbuss approach of prohibiting millions of people from entering the United States, 99 percent of whom have nothing to do with terrorism, whether here or abroad," said Cristina Rodriguez, who teaches constitutional law at Columbia Law School. Rodriguez says a broader court review could also delve into what this court largely avoided, whether Muslims were unconstitutionally singled out. That could include Trump's more inflammatory statements.
Note: Rodriguez is a visiting professor.
The Washington Post—February 12
Liz Platt is the director of the Public Rights/Private Conscience Project at Columbia Law School. When we spoke by phone Friday, she suggested that the new breadth of accommodation for religious liberties might make the issue of offering sanctuary trickier. She noted that offering sanctuary to immigrants living in the country illegally has been challenged in the courts previously, with the religious motivations behind the effort playing a muted role.
The federal government contributes roughly 10 percent of the funding to city schools. That means 90 percent comes from state and local resources, explained Michael Rebell, professor of law and educational practice at Teachers College, Columbia University and Columbia Law School. “There’s obviously going to be a lot more support for the privatization of education — There’s no doubt that there will be more of a push for vouchers and charters," he said. "But to compel virtually anything, they can only do it through funding.”
Note: Rebell is an adjunct professor.
Inside Climate News—February 15
Legal experts around the world will be watching closely to see if the decision stands, said Michael Gerrard, an expert on climate law who works at Columbia University's Sabin Center for Climate Change Law. "This is part of a growing phenomenon of climate cases not based on statutes, but on overarching constitutional or human rights," he said. "This really is the fourth decision in this category. I think this may be the first case to stop a project because of climate impacts."
Just Security—February 15
11 Top Constitutional Law Experts React to White House Stephen Miller’s Rejection of “Judicial Supremacy”
Gillian Metzger, Stanley H. Fuld Professor of Law, Faculty Director, Center for Constitutional Governance, Columbia Law School: It’s unclear exactly what Mr. Miller means when he says the branches are equal and there’s no such thing as judicial supremacy…If, however, he means that the President is entirely free to disregard a court’s determination that a given executive branch action is illegal — or, more precisely to the point here, that the President can continue to enforce the immigration ban in the face of a valid federal court order staying its enforcement — that would be a radical statement at odds with longstanding norms of our constitutional system.
Lawfare Blog—February 15
In The Leaky Leviathan, David Pozen writes that leaking is both commonplace in Washington and, echoing James Reston’s 1946 observation, that it most often comes from the top: “The ship of state, one often hears, is the only known vessel that leaks from the top—starting, that is, from the White House itself.” But Pozen and many others have observed that despite the broad laws and mechanisms described above, anti-leaking law has been notably underenforced.
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