Dissent Magazine—Winter 2020
Solidarity and Crisis
By Jedediah Britton-Purdy
Democracy depends on solidarity and, to survive, must produce its own solidarity, over and over, in the face of new challenges. Solidarity is always a matter of both an imagined community and a material one. Each specific success makes it easier to mobilize around the challenge that Bernie Sanders and Alexandria Ocasio-Cortez issued at their 26,000-strong rally in Queens this fall: to defend the life and interests of those very different from you, whoever you are.
New York Cases To Watch In 2020
The case shows that prosecutors now have the tools to charge schemes rooted in “tech-wizardry” that reach beyond borders — and beyond the “close relationships” at the heart of traditional insider-trading busts — according to Columbia University professor Joshua Mitts, a securities law expert.
Ms. Magazine—January 1
Reads for the Rest of Us: Feminist Books Coming Out in 2020
On Intersectionality: Essential Writings
By Kimberlé Crenshaw (@sandylocks). The New Press. 480 pages. September 1.
This one was on my list last year but—as so often happens in publishing—it was delayed. I feel this is our year and if we’re lucky, we’ll have the definitive Crenshaw collection in our hands by this time next year.
The Boston Globe—January 3
Republicans have been playing hardball for decades, will Democrats push back?
And while both parties had played hardball in the past, a worrisome imbalance seemed to be taking shape — with the GOP more inclined to break the unwritten rules than their Democratic rivals. In 2018, law professors Joseph Fishkin of the University of Texas at Austin and David Pozen of Columbia confirmed that imbalance in a sprawling paper titled “Asymmetric Constitutional Hardball.”
The New York Times—January 3
Trump Rule Would Exclude Climate Change in Infrastructure Planning
Michael Gerrard, director of Columbia University’s Sabin Center for Climate Change Law, said eliminating the need to consider climate change would lead to more pipelines and other projects that worsen global emissions. It could also put roads, bridges and other infrastructure at greater risk, he said, because developers would not be required, for instance, to analyze whether sea-level rise threatened to eventually submerge a project.
[Note: This article appeared in multiple media outlets nationwide.]
The Telegraph—January 3
How Facebook's vision for Libra turned into a nightmare
"It must have occurred to them that this is crazy, right?" says Katharina Pistor, a professor at Columbia Law School in New York, who sees the saga as an epic example of Silicon Valley "hubris". . . . "The white paper and the documentation were really thin," says Pistor. "They should have been much more cautious, much more ready, had full commitment from bigger players, and have had [more]... conversations before rolling it out."
Der Tagesspiegel—January 3
Verhandlung gegen Harvey Weinstein startet in New York (German)
Daniel Richman, law professor at Columbia University in New York, meanwhile, says that it is important for the Weinstein camp to sow doubts: “In general, in cases like these, attempts are made to attack the memories of witnesses, or suggest that they have a motive to make things up."
[Note: This article appeared in numerous media outlets throughout Germany.]
The Atlantic—January 4
It Wasn’t the Law That Stopped Other Presidents From Killing Soleimani
The ban arose in response to covert CIA plots to, for example, kill Fidel Castro with an exploding cigar during peacetime—essentially, attempting to kill because of political differences, not in wartime self-defense, said Matthew Waxman, who directs the National Security Law Program at Columbia University and served in the Bush administration.
The Future of the Large Law Firm: Growth, Mergers, and Inequality
By John C. Coffee Jr.
This column will argue that firm growth is coming at the price of an internal re-organization within the firm that implies significantly greater inequality among the partners. In turn, this promises demoralization, departures, and ultimately the likelihood of litigation.
The New York Times—January 5
All Bets Are Off as Harvey Weinstein’s Sexual Assault Trial Opens Today
“If your claim is that someone is lying then you’ve got to act like they’re lying,” said Daniel C. Richman, a Columbia law professor and former prosecutor.
The New York Times—January 5
Defenders of History Take Aim at Trump’s Threat to Strike Iran’s Cultural Sites
“I think this is the president using puffery, and trying to sound tough in a way that just reveals his ignorance,” said Scott R. Anderson, a former State Department lawyer during the Obama administration who is now an expert in national security law at Columbia University and the Brookings Institution.
[Note: Anderson is a senior fellow with the National Security Law Program.]
The Atlantic—January 6
The Concession to Climate Change I Will Not Make
By Jedediah Britton-Purdy
What does it mean to teach a child to live in a time of perennial crisis, always in the shadow of loss? I think about trying to teach him love and wonder first, before he inevitably learns fear.
The Baffler—January 6
Smoke from Underground
In his recent book This Land is Our Land, environmentalist and legal scholar Jedediah Purdy defines the commonwealth as a community established on a shared concern for the land and the people on it. At the same time, it is also an ethic, one born from a recognition of our reliance on each other for survival, of our place in a complex web of interdependence.
The Hollywood Reporter—January 6
Harvey Weinstein on Trial: Why a Culture of Secrecy Extends to the Courtroom
Adds Berit Berger, a former prosecutor and the executive director of Columbia Law School’s Center for the Advancement of Public Integrity, "It is not unusual for a judge to take extraordinary measures to protect victims, and here there is an allegation that Weinstein in the past intimidated witnesses."
KRWM–FM (Bellevue, WA)—January 6
How to Accomplish More with Doing Less [Podcast]
Elizabeth Emens is a Law Professor at Columbia University, a mother of 2 youngsters, and now author of an important new book: Life Admin--How I Learned to do Less, Do Better and Live More.
Argument preview: Justices to consider “willfulness” requirement for disgorgement of profits of trademark infringer
By Ronald Mann
The justices will hear argument next week in the trademark-infringement case Romag Fasteners, Inc. v Fossil, Inc. . . . The specific question is whether, under 15 U.S.C. § 1125(a), the plaintiff in an action for false use of a mark must prove that the defendant acted willfully in order to receive an award of the defendant’s profits, as opposed to a damages award.
[Note: Mann also provided a preview of GE Energy Power Conversion France SAS v Outokumpu Stainless USA, an analysis of the arguments in Romag Fasteners, Inc. v Fossil, Inc., and an analysis of the opinions in Retirement Plans Committee of IBM v. Jander and Ritzen Group v. Jackson Masonry for SCOTUSblog.]
E&E News—January 7
Big firms become climate advocates
International firm Arnold & Porter Kaye Scholer LLP and Michael Gerrard of Columbia University's Sabin Center for Climate Change Law recently founded the Renewable Energy Legal Defense Initiative, an organization that helps remove legal barriers for solar, wind and other projects that often face permitting challenges.
NBC News.com—January 7
Fair or dangerous? Days after ending cash bail, New York has second thoughts
"This is, in some ways, the Willie Horton effect playing out over and over again, including in our contemporary progressive politics," said Kellen Funk, an associate professor at Columbia Law School, where he teaches a seminar on the American bail system.
Congress Vows to Fight Trump’s Environmental Rule Change
“The issue comes up when roads are washed out by hurricanes and there are questions about how it should be rebuilt,” Sabin Center for Climate Change Law director Michael Gerrard told Streetsblog. “If you’re building a highway or a runway or rail line you want to be sure it will still be above water at the end of its useful life. Disregarding climate impacts could lead to a colossal waste of money and a disruption of transportation service.”
The Atlantic—January 8
The Sneaky Genius of Facebook's New Preventative Health Tool
Writing in The New York Times, Tim Wu, the author of Attention Merchants, declared convenience and dependence to be two sides of the same coin, noting, “Our taste for convenience begets more convenience, through a combination of the economics of scale and the power of habit. The easier it is to use Amazon, the more powerful Amazon becomes—and thus the easier it becomes to use Amazon.”
What Kind Of Trial Awaits President Trump In The Senate?
But Philip Bobbitt, a professor at Columbia University Law School and the co-author of “Impeachment: A Handbook,” said that McConnell’s attitude toward the trial is unusual. “What we have here is a Senate majority essentially acting like a criminal defense attorney trying to bar testimony.”
Standoff over Impeachment deepens. TRANSCRIPT: 1/8/20, The 11th Hour w/ Brian Williams.
BRIAN WILLIAMS: Berit Berger . . . how do you view as a former fed, the introduction of new evidence at trial? How should we view it, especially if that trial venue happens to be the well of the U.S. Senate on live television?
BERIT BERGER: So it’s an imperfect analog, as we keep saying, you know. The federal criminal trials versus an impeachment trial. But I will say in the context of criminal trials, it is routine that you will find new evidence after the indictment before the trial.
[Note: Berger is the executive director of the Center for the Advancement of Public Integrity. Amid news concerning the impeachment trial of President Donald Trump, Berger, also appeared on The Beat With Ari Melber and Velshi & Rule.]
USA Today—January 8
In California: $300 million to curb border pollution, but will it work? Some have doubts
"What we call the 'criminalization of homelessness' is a big problem," Maria Foscarinis, executive director of the National Law Center on Homelessness & Poverty told USA Today. "I think the problem is getting worse because the housing crisis is getting worse."
[Note: Foscarinis is an alumna and a lecturer at Columbia Law.]
New York Law Journal—January 9
New York Environmental Legislation in 2019
By Michael B. Gerrard and Edward McTiernan
In 2019, with the Democrats newly in full control of the State Senate, the Assembly and the Governor’s office, New York adopted more environmental legislation than it had in more than a decade. This included a sweeping climate change statute, a new environmental justice article in the Environmental Conservation Law, and a statewide ban on plastic carryout bags.
Climate Connections—January 9
Lawyers take a stand for renewable energy (Article and audio)
Michael Gerrard directs the Sabin Center for Climate Change Law at Columbia University. The center recently launched an initiative that provides free help to people facing legal obstacles to renewable energy projects. “Local opposition has become a significant impediment to building these new facilities,” he says.
E&E News—January 9
Trump is set to alter NEPA, upend years of climate planning
"I was invited to go to the White House for the announcement of draft guidance," remembers Michael Gerrard, director of Columbia University's Sabin Center for Climate Change Law. . . . But a report by the Sabin Center for Climate Change Law, released in 2017, found that environmental reviews conducted in the waning months of 2016 varied widely, even after the guidance had become final. . . . "Even under the Obama administration, some agencies inadequately considered the cumulative and indirect impacts that projects had on climate change, and the impacts that climate change would have on projects," said Gerrard.
[Note: This story also appeared in Science Magazine and Scientific American. Jean Chemnick, the author of the story, and Gerrard also appeared on WNYC’s The Brian Lehrer show.]
Foreign Policy—January 9
Trump’s Real Trade War Is Being Waged on the WTO
The United States took advantage of that flaw and began a policy of what the Columbia University trade economist Jagdish Bhagwati dubbed “aggressive unilateralism.” Throughout the 1980s and into the early 1990s, the United States would impose unilateral tariffs, ostensibly in order to claw open foreign markets.
InsideClimate News—January 9
Trump Moves to Limit Environmental Reviews, Erase Climate Change from NEPA Considerations
"As a global multigenerational problem that affects all of humanity and natural resources, climate change would seem to fit precisely within what the statute has in mind," said Michael Gerrard, founder and director of the Sabin Center for Climate Change Law at Columbia University.
Los Angeles Times—January 9
House passes war powers resolution to restrain Trump’s military actions in Iran
The threat, or attempt, to pass a war powers resolution has largely become a political tool that allows Congress to criticize a president’s actions without taking a difficult vote themselves, said Columbia University law professor Matthew Waxman, a former national security official in the George W. Bush administration.
[Note: This article appeared in multiple media outlets nationwide.]
Can the impeachment process be fair?
The framers of the Constitution gave the power to hold an impeachment trial to the Senate rather than the Supreme Court for a good reason, says Philip C. Bobbitt, a constitutional theorist, professor, and director of the Center for National Security at Columbia Law School. "If the president were to be prosecuted and convicted after having been removed, they feared that the appeal would go to the Supreme Court, and they didn't want the court to be recused" because it had presided over the removal case, he says.
USA Today—January 9
House votes to limit Trump's ability to wage war with Iran after Soleimani killing
The resolution on the House floor was the “use of legal tools for political effect” that would “force the executive branch to spend some political capital defending the actions,” said Columbia Law Professor Matthew Waxman.
The Washington Post—January 10
Five myths about war powers
By Scott R. Anderson
The Trump administration’s recent drone strike killing Iran’s Maj. Gen. Qasem Soleimani raises old and new questions about the president’s authority to use military force. The president’s war powers derive from norms, laws and the Constitution, but there are many gray areas shrouded in misperceptions.
Global Voices | Advox—January 10
Sudan needs strong network neutrality laws to match its growing internet boom
Law professor Tim Wu first coined the term in 2003 in his paper, “Network Neutrality, Broadband Discrimination,” in which he describes various tensions between the private sector and public interest groups.
Los Angeles Times—January 10
She helped make California a clean air leader. Now Trump could upend that legacy
“The current Supreme Court, especially after the confirmation of Justice [Brett] Kavanaugh, is not considered a friendly venue for proponents of environmental regulation, so they try to stay away,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University.
Bernard Harcourt: «La société numérique repose sur la folle divulgation de nous-mêmes» (French)
A professor of law at Columbia University and director of studies at EHESS, Bernard E. Harcourt has long studied the American penal system and the fantasy of justice in wanting to predict future crimes. The American researcher is now interested in digital surveillance and the new power relationships it is creating.
The Independent—January 11
Opinion: Samira Ahmed’s victory over the BBC isn’t just about sexism – it’s about racism
Samira Ahmed’s victory over the BBC isn’t just about sexism – it’s about racism too
Back in 1989, a legal scholar by the name of Kimberlé Crenshaw came up with a term to describe how multiple forms of inequality can overlap: intersectionality.
Carbon monoxide leaks leave Durham, N.C., public housing residents fearing for their safety
“Every moment of delay exposes residents to grave harm and risks loss of life,” Emily Benfer, a Columbia University law professor and a public health expert, said.
[Note: Benfer is a visiting associate clinical professor of law at the Law School.]
Why the Convenience University Will Rule Higher Ed
Noted Columbia University legal scholar, Tim Wu, has called convenience, "the most underestimated and least understood force in the world today” and “perhaps the most powerful force shaping our individual lives and our economies.”
The Biggest Issues to Watch in 2020
"It's mostly, although not exclusively, a result of the Republican takeover of state legislatures, beginning in 2010," says Richard Briffault, a law professor at Columbia University. "The state governments have moved sharply to the right, and many of the cities have moved to the left and adopted more activist agendas, as well."
4 Hurdles Trump's Infrastructure Review Overhaul Will Face
Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School, said the proposed rule also appears to attempt to influence courts' thinking on NEPA-related matters. . . . "Agencies are not authorized to tell courts what the standards [for NEPA review] ought to be," Burger said.
Ban On Insider Trading During '8-K Gaps' Heads To Senate
Another author, Columbia Law School professor Joshua Mitts, said Maloney's measure was narrowly tailored to address the problem. "It's to protect the ordinary investor," Mitts told Law360 on Monday. "Insider trading undermines the fairness of our markets because it give some folks — CEOs and other corporate executives — an advantage over the average investor who has their retirement savings in the stock market."
Section 1504: Last Chance To Save Oil, Mining Payment Transparency Law
Research summarized in a December 10 Columbia Center for Sustainable Investment (CCSI) submission to the SEC2 used payment data generated under a Canadian law modeled after Section 1504 in routine securities analysis. The researchers found that the data is very useful in accounting for changes in fiscal policy in oil and mining securities valuation, adjusting cash flows for tax deferments, and in sovereign credit analysis in resource-dependent countries.
What Counts as a Hobby, and Do I Have Any?
In a 2018 Times op-ed, Tim Wu, the author of The Attention Merchants: The Epic Struggle to Get Inside Our Heads, posited that this was the “deeper reason” why it seems as though so few people have hobbies. “Our ‘hobbies,’ if that’s even the word for them anymore, have become too serious, too demanding, too much an occasion to become anxious about whether you are really the person you claim to be,” he wrote.
WCBS 880 (New York, NY)—January 13
Supreme Court Hearing Arguments In ‘Bridgegate’ Case (Article and audio)
Columbia Law School professor Daniel Richman tells WCBS 880 that the Supreme Court has been narrowing the definition of public corruption lately. “You might focus on whether the money goes into the pockets of defendants or their allies,” Richman said. “And this was not that.”
Houston Chronicle—January 14
Trump official accused of ‘climate censorship’ in plans to drill on U.S. lands in Texas
As part of its “Silencing Science Tracker,” the Sabin Center for Climate Change Law at Columbia University in New York has documented at least 184 incidents when the Trump administration has taken out references to climate change from government websites or publications. The law school’s “Climate Deregulation Tracker” identified another 133 incidents when the administration scaled back or eliminated federal regulations and efforts to combat climate change.
New York Times—January 14
Trump’s Impeachment Trial a Perilous Duty for Chief Justice
“It’s not a heavy lift, but it’s going to put him in a very, very unpleasant role,” said Philip Bobbitt, a law professor at Columbia and an author, with Charles L. Black Jr., of “Impeachment: A Handbook.” “I’m sure he’ll get ulcers.”
Pensions & Investments—January 14
House approves bill to close 8-K trading gap
Congressional action is needed because "the SEC doesn't have authority to ban somebody from insider trading here," said Joshua Mitts, associate professor of law at Columbia Law School and co-author of a 2015 white paper on the 8-K trading gap with then-professor Robert J. Jackson Jr., now an SEC commissioner. "This is a pretty bipartisan bill," Mr. Mitts said in an interview.
New York Law Journal—January 15
Law Firm Mergers and Acquisitions: How They Are Reshaping the American Law Firm
By John C. Coffee Jr.
This column will examine in quick succession: (1) how the old order is changing; (2) the forces that appear to be driving law firm mergers; (3) why some firms have remained aloof and distant from this process; and (4) the hidden impact on equality within the firm.
Bloomberg News—January 15
High Court’s First Abortion Case with Kavanaugh (Podcast)
Carol Sanger, a professor at Columbia Law School, discusses the first abortion case the Supreme Court will hear with a new conservative majority, ruling on a Louisiana law that requires doctors who perform the procedure to get admitting privileges at a local hospital.
Los Angeles Review of Books—January 15
Utopian Experiments: On Katherine Franke’s “Repair: Redeeming the Promise of Abolition”
If reparations were to be fulfilled, what should they look like today? Should they be a cash payout to individuals or something that benefits specific communities? And which communities? Columbia professor and feminist legal scholar Katherine Franke’s book Repair: Redeeming the Promise of Reparations proposes answers to these questions.
BLOOMBERG SAYS 'STOP AND FRISK' WAS DOING 'THE BEST THING THAT WE CAN' WHILE APOLOGIZING
But analysts told PolitiFact after Bloomberg's remarks that crime was already dropping sharply before the billionaire took office. "Was the slope any steeper during Bloomberg than in the preceding decade? Not at all," Jeffrey Fagan, a professor of law and a professor of epidemiology at Columbia University, told the fact-checking website.
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