Faculty in the News
The New Criterion—October 2018
Our Orwellian tax code: A review of Liberal Suppression: Section 501(c)(3) and the Taxation of Speech by Philip Hamburger
If fundamental rights were merely under attack, that would be perilous but hardly unprecedented. The struggle to preserve freedom never ceases. The real threat, the one Philip Hamburger so discerningly captures by contextualizing an abstruse revenue law, is that we may have realized Tocqueville’s dystopian forecast: too infantilized by liberalism to see the stakes.
POLITICO Morning Tech—October 15, 2018
FTC tackles antitrust in labor markets
It’s Day 2 in the latest set of Federal Trade Commission hearings on consumer protections and antitrust, with government officials, scholars and industry insiders today set to discuss possible anticompetitive behavior in labor markets. On deck to testify are Renata Hesse, a former Justice Department antitrust chief, and Tim Wu, the Columbia University Law school professor who coined the term “net neutrality,” among others.
Law360—October 15, 2018
Dental Co. Claims Must Go To Arbitrator, High Court Told
Several amici, including the American Association for Justice and Columbia University law professor George Bermann, chimed in to support Archer later that month, urging the justices to uphold the Fifth Circuit’s decision and not waste time sending the arbitrability question to an arbitrator.
Just Security—October 16, 2018
Justice Dept Must Open Criminal Investigation Into Potential War Crimes by U.S. Mercenaries in Yemen
By Sarah Knuckey and Ryan Goodman
It is largely beside the point whether U.S. or international law prohibits “mercenaries” and what the legal definition of a mercenary is. The question of whether these men were contractors, mercenaries, members of the United Arab Emirates Armed forces or anything else is irrelevant to their potential criminal liability under U.S. law for murder and war crimes.
Balkanization—October 16, 2018
Deconstructing the Administrative State: Is Chevron Unconstitutional?
Constitutional dynamics that Gillian Metzger has called “anti-administrativism”—or “deconstructing the administrative state” if one prefer Steve Bannon’s terminology—have undercut one of the most established precedents in American law.
Harvard Political Review—October 16, 2018
The Myth of Brain Drain: How Emigration Can Help Poor Countries
The concept of brain drain also ignores the effect of resource availability. In the words of Professor Jagdish Bhagwati of Columbia University, “The ‘brain’ is not a static concept.”
New York Post—October 16, 2018
Judge OKs Tesla and Elon Musk’s settlement with SEC
Columbia Law School professor John Coffee told The Post earlier this month that Musk was “incorrigible” and in need of “adult supervision.”
Associated Press—October 17, 2018
Track star Semenya adds fans as testosterone battle drags
“It is always concerning, as a matter of law, when policies appear to be targeted to limit the participation of a small group of individuals,” said Suzanne Goldberg, director of the Center for Gender & Sexuality Law at Columbia University.
[Note: This article appeared in numerous major publications nationwide.]
Bloomberg BNA—October 17, 2018
Executioners Lobby for Death Row Inmate at High Court
Their brief is a “moving testament to the human toll that these executions exact on our public servants—our men and women in uniform who have to carry them out,” Bernard Harcourt told Bloomberg Law. Harcourt, a professor at Columbia Law School, represented Doyle Lee Hamm, whose botched execution attempt earlier this year the ex-officials cite as an example of what can go wrong in situations like Bucklew’s.
Yes! Magazine—October 17, 2018
Climate Change and Its Staggering Refugee Crisis
Michael Gerrard of Columbia University’s Sabin Center for Climate Change Law told climate journalist Eric Holthaus: “I think the countries of the world need to start thinking seriously about how many people they’re going to take in. The current horrific situation in Europe is a fraction of what’s going to be caused by climate change.”
New York Law Journal—October 18, 2018
Columbia Law to Launch Six-Month LL.M. for Foreign Lawyers
Columbia Law School is launching an accelerated LL.M. program for foreign lawyers that will allow them to complete the degree in about six months—half the time of a traditional LL.M. program. … Law dean Gillian Lester said the new program will enable students to advance their careers in a short time, build an international network and help them navigate multinational deals. … “The Executive LL.M. is an incredible opportunity for lawyers to study global business law in New York City—the world’s business center,” said assistant dean for executive education Julia Miller. “We look forward to welcoming these students into the Columbia Law School community and being a part of their career trajectories.”
NPR All Things Considered—October 18, 2018
Deep In The Desert, A Case Pits Immigration Crackdown Against Religious Freedom (Audio and story)
"There's a public face of this government, which is very protective of religious liberty, and then the real work they're doing is only protecting the religious liberty rights of those who are religious conservatives, not of religious progressives," said Katherine Franke, director of the Public Rights/Private Conscience Project at Columbia Law School. Franke was one of several law professors who filed a friend of the court brief in Warren's case to help explain the statute.
[Note: This story was aired and published in several other public radio stations nationwide.]
Above the Law—October 18, 2018
Prestigious Law School Launches Exciting New LL.M. Program
Students will gain more than a credential; they will develop a deep understanding of international business law from the country’s most respected academics and leading practitioners in the field, all while expanding their capabilities as trusted strategists and counselors to their clients. — Dean Gillian Lester of Columbia Law School, commenting on the school’s new LL.M. program for foreign lawyers, the Executive Masters of Law in Global Business.
Climate Liability News—October 18, 2018
Trump Administration Again Asks Supreme Court to Stop Kids Climate Case
Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, had a different outlook. “I see no reason for the Supreme Court to alter its earlier decision to decline issuing a stay of the district court’s proceedings,” he said.
[Note: Michael Burger was quoted in other stories concerning the temporary stay issued by Chief Justice Roberts in the case of Juliana v. United States, including by Mashable and National Geographic.]
The New York Times—October 19, 2018
With Kavanaugh on Court, Abortion Rights Groups Sharpen Their Focus on the States
“People in their 60s and 70s are saying, haven’t we done this already?” said Carol Sanger, a law professor at Columbia University and the author of “About Abortion: Terminating Pregnancy in 21st Century America.” “The answer is yes, but it’s not as strong as it was because of the changes in the court.”
The Washington Post—October 19, 2018
The Finance 202: Uber illustrates long Saudi shadow in U.S. business world
“If underwriters were to detect purchasers of the stock weren’t going to touch Uber because of the Saudi presence, that would get a reaction,” John Coffee, a professor at Columbia Law School who specializes in securities law, tells me. “But that’s a rather remote possibility in my mind, that there would be enough of a reaction that it would chill the IPO. And if there were a reaction, there are steps Uber could take.”
The Washington Post—October 19, 2018
Former U.S. Special Forces were reportedly hired to kill Yemen’s leaders. Did the government know?
As Ryan Goodman and Sarah Knuckey report in Just Security, the activities that employees of Spear Operations Group carried out leave them open to potential criminal liability under U.S. law for murder (under 18 U.S.C. 956) and war crimes (18 U.S.C. 2441).
The Washington Post—October 19, 2018
The Energy 202: In what may be a first, Patagonia endorses two Senate candidates
For as much money as corporate interests have pumped into politics after the Supreme Court’s Citizens United decision in 2010, Patagonia's pair of endorsements may constitute the first time any corporation has explicitly endorsed a candidate for office, experts say. “I am not aware of a similar corporate endorsement of a candidate,” said Richard Briffault, a Columbia Law School professor and campaign finance expert, “although I can't say it never happened before.”
[Note: This story was also published in several other major outlets nationwide.]
SCOTUSblog—October 19, 2018
Before lecture on war powers, Gorsuch laments public’s lack of knowledge of the judiciary
On Wednesday night, the Supreme Court Historical Society hosted a lecture by Professor Matthew Waxman on Charles Evans Hughes’ evolving thoughts on the flexibility of constitutional restrictions on government during wartime and peacetime. As is typical of these events, a sitting justice introduced the lecturer. This time it was Justice Neil Gorsuch, the first time he has spoken at a historical society event.
Quartz—October 19, 2018
Does freedom of religion protect Americans who have a religious duty to shelter migrants?
“There’s a public face of this government, which is very protective of religious liberty, and then the real work they’re doing is only protecting the religious liberty rights of those who are religious conservatives, not of religious progressives,” Katherine Franke, director of the Public Rights/Private Conscience Project at Columbia Law School, tells KQED. Franke and other law professors filed an amicus brief on behalf of Warren, explaining to the Arizona districts court how the statute applies to his case.
SCOTUSblog—October 22, 2018
Argument preview: Justices to mull who decides whether to arbitrate – the judge or the arbitrator
By Ronald Mann
The November argument session begins with yet another case under the Federal Arbitration Act — Henry Schein Inc. v. Archer & White Sales Inc. With Henry Schein, New Prime Inc. v. Oliveira (from October) and Lamps Plus Inc. v. Varela (later on Monday morning), the court will have three FAA cases under its belt before the first of November – almost a match for the Armed Career Criminal Act!
The Washington Post—October 22, 2018
On eve of trial, Supreme Court leaves landmark climate case - filed by kids - in limbo
“It is extremely rare, if not unprecedented, for the Supreme Court to enjoin a trial when the Court of Appeals is still considering the case. Ordinarily they’ll wait for the lower court to rule,” said Michael Gerrard, an environmental law professor at Columbia University.
[Note: Professor Gerrard was quoted in other stories concerning the temporary stay issued by Chief Justice Roberts in the case of Juliana v. United States, including by Alaska Public Media, CNN, Colorlines, Common Dreams, Law360, Science Magazine, Smithsonian Magazine, The Independent, The New York Times, and the Washington Examiner.]
Law360—October 22, 2018
More Young Lawyers Are Gravitating Toward Int'l Arbitration
There's a passion for the field and for the possibilities it offers, according to Columbia Law School professor George Bermann, director of the Center for International Commercial and Investment Arbitration and a law professor for nearly 40 years. While his expertise in international law touches on many areas, he noted that his focus has become more targeted on private international law, particularly international arbitration, as demand for instruction in the field has grown.
New Yorker—October 22, 2018
Did Uber Steal Google’s Intellectual Property?
“The career paths of Silicon Valley engineers and managers resembled Brownian motion,” Ronald J. Gilson wrote, in a 1999 law-review article. “They moved between companies, founded startups, supplied former employers, purchased from former employees, and in the course of their careers developed personal and professional relationships that cut across companies and competition.”
The Atlantic—October 22, 2018
Some Presidential Lies Are Impeachable Offenses
Some lies, however, may represent a dereliction of constitutional duty, and these cannot be left to the political marketplace. As Philip Bobbitt shows in his supplement to Charles Black’s landmark study of impeachment, a “conspiracy to pervert the course of a presidential election” by “acting in league with a hostile foreign power” is clearly a basis for removal.
VICE News—October 22, 2018
HOW THE TRUMP ADMINISTRATION COULD MAKE TRANS PEOPLE INVISIBLE UNDER THE LAW
“The concern is that there are many areas of federal regulation that directly affect the lives of trans individuals,” said Suzanne Goldberg, who heads Columbia Law Schools’ [sic] Center for Gender and Sexuality Law, “from obtaining documents like passports to accessing healthcare via the Affordable Care Act.
WNYC—October 23, 2018
How the #MeToo Movement Is Playing Out in Court (Audio)
But as the director of Columbia Law School's Center for Gender and Sexuality Law, Suzanne Goldberg, tells WNYC's Jami Floyd, it's still too soon to tell the long-term impacts that #MeToo and #TimesUp may have on the justice system writ large. "There is unquestionably change happening," Goldberg said. "But...we do need to look at criminal prosecutions, we do need to look at what's happening in civil litigation. We also need to look at what's happening in state law, what employers are putting in place, what schools are putting in place and what has changed in the conversation."
Portland Press Herald—October 23, 2018
Crowdfunding to pressure Collins on Kavanaugh vote likely to face legal challenge
In the case of campaign contributions, the courts have said a bribe occurs when a payment is made “in return for an explicit promise or undertaking by the official to perform or not to perform an official act,” according to an analysis by Columbia Law School’s Center for the Advancement of Public Integrity. … “This is a clear-cut case of false outrage,” said Columbia Law School professor Richard Briffault, co-author of several books on campaign finance reform. Not only is there “nothing to be outraged about,” the campaign is consistent with Republicans’ philosophy of money as “free speech” in numerous cases, including the Supreme Court’s 2010 Citizens United case, he said.
Columbia Journalism Review—October 23, 2018
The origin of the term ‘intersectionality’
“Intersectionality” was coined in 1989 by Kimberlé Crenshaw, a civil rights activist and legal scholar. In a paper for the University of Chicago Legal Forum, Crenshaw wrote that traditional feminist ideas and antiracist policies exclude black women because they face overlapping discrimination unique to them.
Just Security—October 24, 2018
10 Priorities for Peace, Human Rights and Justice in Yemen: An Important Joint Statement From Country’s Civil Society
By Sarah Knuckey and Farea Al-Muslimi
Each governorate in Yemen faces unique challenges and has been affected by the war in different ways, but the statement reflects shared, high-level, priorities and practical demands that could alleviate suffering of millions and pave a path toward peace. The UN envoy should put these ten priorities forward in his peace process plan.
SCOTUSblog—October 24, 2018
Argument preview: Justices to consider propriety of “cy pres” class-action settlements
By Ronald Mann
Wednesday morning the newly constituted bench will consider Frank v. Gaos, the first important class-action case of the term. As most readers of this blog will know, the Supreme Court over the last several years has issued a series of major decisions trimming back the availability of class actions, typically by constraining the broad discretion under which district courts traditionally have supervised those cases. Justice Anthony Kennedy was notable in those cases, often decided by a 5-4 vote, as one of the justices most persistently skeptical of the value of class adjudication. This will be the first opportunity to see if that skepticism persists on the post-Kennedy bench.
USA Today—October 24, 2018
NFL players with brain trauma receive notice of settlements stripped to nothing
John C. Coffee Jr., a professor at Columbia Law School, reviewed a sample of the settlement payout notices obtained by USA TODAY. He said if attorneys who did little work are demanding large chunks of a player’s award, that amounts to “unjust enrichment.” “That’s where you should be outraged,” he said.
[Note: This article appeared in numerous major publications nationwide.]
The New York Times—October 24, 2018
New York Sues Exxon Mobil, Saying It Deceived Shareholders on Climate Change
The New York lawsuit poses “a real risk to Exxon’s reputation,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University. He said it was especially concerning for investors, who rely on the company’s statements. “If Exxon has been misleading on this,” Mr. Burger said, “what else has it been misleading about?”
NPR Morning Edition—October 25, 2018
New York Sues ExxonMobil
Michael Burger is a professor at Columbia Law School who specializes in climate change law. Burger doubts Exxon's conspiracy theories are going to hold up in court.
MICHAEL BURGER: This is about climate change. It's about the risks that regulation poses to the fossil fuel industry over the next half century or more. But this particular complaint is about corporate fraud.
Bloomberg—October 25, 2018
New York Wants to Make Exxon’s Life More Expensive
Lawsuits targeting producers or government agencies accused of not protecting citizens from climate change can be viewed in this context, too. Columbia Law School’s Sabin Center for Climate Change Law tracks such litigation, and its database shows a marked increase in the number of cases being brought:
MSNBC—October 25, 2018
Trump blames 'fake news' as Biden & De Niro are targeted by bombs (Video)
The president took to Twitter to blame the media as more of his own critics become the targets of packages containing pipe bombs. Chuck Rosenberg, Berit Berger and Eli Stokols join to discuss.
[Note: Berger is the executive director of the Center for the Advancement of Public Integrity.]
Los Angeles Review of Books—October 25, 2018
How Hollow Speech Enables Hostile Speech, and What to Do About It
Columbia Law professor Tim Wu calls for “an act of will on the part of the individual” to spend “blocks of time […] beyond the reach of the attention merchants.” He advises consumers who want better information and conversation to “[s]uck it up and pay. A lot of people say, ‘I hate ads, I’m sick of clickbait…’ If you say that, you have to put your money where your mouth is […] We can’t expect everything to be free and to be good.”
NBC News—October 26, 2018
With Congress and Trump on sidelines, climate change battle moves to courts
“As people who care about climate change become more frustrated at the failure of the administration and Congress to act, they increasingly turn to the courts for relief,” said Michael Gerrard, director of Columbia University’s Sabin Center for Climate Change Law. “And as climate change impacts get worse and worse and there is still no action, we could see a lot more of this.”
[Note: Prof. Gerrard was also quoted in other stories concerning New York State’s lawsuit against ExxonMobil including by Earther, Legal Reader, The Washington Post, and U.S. News & World Report.]
ABA Journal—October 26, 2018
New York takes another tack in climate-change suit against Exxon Mobil
Columbia Law School professor John Coffee Jr. told NBC that most cases under New York’s Martin Act focus on whether companies accurately report earnings and liabilities. “This new case is a claim that the company knew the dangers from climate change and the liabilities it would incur, and that those greater costs were not acknowledged or were underestimated publicly,” Coffee said. “That’s novel. I would describe this kind of case as unproven. We don’t know whether the courts will accept the materiality of that evidence.”
Axios—October 26, 2018
In a market bloodbath, questions about behemoths
In short, today's big companies are dominating the economy to a degree not seen since the Gilded Age in the late 19th century, says Tim Wu, a law professor at Columbia University.
DeSmogBlog—October 26, 2018
TigerSwan, County Sheriff Sued Over Road Blockade During Dakota Access Pipeline Protests
Filed in U.S. District Court in Bismarck, the 32-page legal complaint was submitted by Noah Smith-Drelich and Bernard Harcourt, both professors at the Columbia Law School. Harcourt, notably, is the author of the recently published book The Counterrevolution: How Our Government Went to War Against Its Own Citizens.
[Note: Smith-Drelich is a lecturer this semester.]
First Things Podcast—October 26, 2018
LIBERAL SUPPRESSION (Audio)
The latest installment in an ongoing interview series with senior editor Mark Bauerlein. In this episode, Mark and Philip Hamburger discuss Hamburger’s new book, Liberal Suppression.
Unauthorized Disclosure Podcast—October 28, 2018
Interview With Bernard Harcourt: President Trump And The Counterrevolution (Audio)
Bernard Harcourt, author of The Counterrevolution: How Our Government Went To War Against Its Own Citizens, joins the show for a conversation on President Donald Trump and what Bernard calls the Counterrevolution.
The National—October 28, 2018
Democrats and Republicans shift election battle into courtrooms
Part of the problem is structural because laws are set at local and state level, said Richard Briffault, Joseph P. Chamberlain Professor of Legislation at Columbia Law School in New York. “That creates some uncertainty, especially when states are constantly changing and tinkering with their laws. “Every time there is a change there is a concern that it is going to favour one set of voters or party and hurt another group of voters or party.”
Debtwire Investigations—October 29, 2018
From Inside Man to ‘Outsider’: How One Restructuring Attorney Aims to Nab New York’s Top Cop Post
A key component of that approach would involve a gentler use of the state’s Martin Act. The statute, which gives the government power to pursue securities and corporate fraud, does not require prosecutors to prove an intent to defraud or damages. State and local law expert Richard Briffault, the Joseph P. Chamberlain Professor of Legislation at Columbia Law School, said the law has a reputation as an “unusual statute,” but noted that it was enacted before federal involvement in this area of fraud was commonplace.
Legal Newsline—October 29, 2018
Critics: Computer era 'intruding' on bail decisions, producing 'devastating results'
Bernard Harcourt, a professor of law and political science at Columbia University, has done extensive research on the history and operation of risk assessment tools in the criminal justice system. He says the largest problem he has seen is that they, without fail, have a racial skew.
Climate Liability News—October 29, 2018
Why Is the U.S. Government So Motivated to Avoid the Kids’ Climate Case?
The plaintiffs’ unique, overarching narrative would likely help them in a trial, said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University. “That this government—and its various departments and agencies—has long known about the extraordinary risks that climate change poses both to individuals living today and to future generations,” Burger said.
SCOTUSblog—October 30, 2018
Argument analysis: Justices signal opposition to vague exceptions that would limit enforceability of arbitration agreements
By Ronald Mann
The question before the justices is whether they should recognize this “wholly groundless” exception to the general rule that courts will enforce a “clear” and “unmistakable” agreement to leave arbitrability questions to the arbitrator. … Justice Ruth Bader Ginsburg was the first to challenge Shanmugam. She emphasized an amicus brief from Professor George Bermann (the reporter for the ALI’s recent Restatement on international arbitration). Ginsburg wanted to hear Shanmugam’s response to Bermann’s argument, with which Ginsburg seemed to agree, that the particular contract used here (a widely used form) did not include the kind of “clear” and “unmistakable” delegation to the arbitrator that would make it appropriate to send the case to the arbitrator.
Balkanization—October 30, 2018
Authoritarian Constitutionalism in Facebookland
By David Pozen
Perhaps Facebook’s content moderation regime is less like a common law system than like a system of authoritarian or absolutist constitutionalism. … For those of us who worry about the recent direction of U.S. free speech doctrine, Haan’s invitation to imagine a future Facebook less beholden to First Amendment ideology is also an invitation to imagine a range of new approaches to online content moderation and social media regulation. And that is precisely what the Knight Institute’s next visiting scholar, Jamal Greene, will be asking academics and advocates to do in a forthcoming paper series.
[Note: This article was also published as part of The Knight First Amendment Institute’s Emerging Threats series.]
The Guardian—October 30, 2018
The unseen driver behind the migrant caravan: climate change
With an estimated 150 million to 300 million climate refugees set to be displaced worldwide by 2050, a new international framework will be needed to accommodate them. “If your farm has been dried to a crisp or your home has been inundated with water and you’re fleeing for your life, you’re not much different from any other refugee,” said Michael Doyle, an international relations scholar at Columbia University. “The problem is that other refugees fleeing war qualify for that status, while you don’t.”
City & State NY—October 30, 2018
Breaking down the barriers of male-dominated boards
Richard Briffault, a professor of legislation at Columbia Law School, said that the government has a freer hand when it comes to imposing requirements on companies in contracts. “The courts have generally indicated that when governments are acting on what’s sometimes called their proprietary capacity, that is by contract, as opposed to as regulators, they can do more,” Briffault said.
Shadowproof—October 30, 2018
MORTON COUNTY SHERIFF, TIGERSWAN FACE LAWSUIT FOR BLOCKING WATER PROTECTORS’ TRAVEL AND ASSEMBLY DURING DAPL CONSTRUCTION
Bernard Harcourt, a Columbia law school professor and author of “The Counterrevolution: How Our Government Went To War Against Its Own Citizens,” sees what happened with the highway shutdown as a reflection of how counterinsurgency has been domesticated in the United States. Particularly, TigerSwan enforced a counterinsurgency practice against water protectors. … Noah Smith-Drelich, a former staff attorney for the ACLU in North Dakota, South Dakota, and Wyoming who is representing the plaintiffs as well, notes the “unequal reach of the road closure” made it “especially pernicious.”
Slate—October 30, 2018
How Democrats Can Reverse Years of Voter Suppression
Drawing on the work of professors Joseph Fishkin and David Pozen, Sargent cogently argues that “Democrats will have to do whatever they can to, in effect, take the weaponry out of GOP hands (in effect, out of both parties’ hands) whenever possible.”
The Daily Caller—October 31, 2018
OPINION: JANICE RODGERS BROWN — THE ATTORNEY GENERAL AMERICA NEEDS
By Philip Hamburger
What we need, therefore, at this stage is an attorney general of unimpeachable personal integrity, with a deep attachment to the Constitution and an elevated vision of the attorney general’s office. And that is Judge Brown.
Commercial Dispute Resolution—October 31, 2018
HKIAC refreshes its approach to administered arbitrations
The rules will be discussed at HKIAC’s ADR in Asia conference on 31 October, which will be opened by Gearing, with a keynote address by Professor George Bermann, of New York’s Columbia University, and a panel debate featuring Gearing, president of the London Court of International Arbitration, Judith Gill QC, ICC International Court of Arbitration president Alexis Mourre, Lucy Reed, vice president of the Singapore International Arbitration Centre, and key arbitration figure and former judge Neil Kaplan QC CBE SBS.
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