Faculty in the News

Columbia Law School Clip Report, January 16–31, 2019

The New York Times—Jan. 16
Could a Future President Declare a Climate Emergency?
“We are in a climate emergency,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University. “But just because you call something an emergency doesn’t mean that it fits under the president’s statutory authority.”

Slate—Jan. 16
Antitrust in the House
Having strong antitrust leadership in the House could also prompt the Federal Trade Commission, the federal agency in charge of protecting consumers and preventing anticompetitive behavior, to be more active in its role as an antitrust regulator too, says Tim Wu, author of The Curse of Bigness: Antitrust in the New Gilded Age and a law professor at Columbia University.
[Note: Amid the release of Prof. Tim Wu's new book The Curse of Bigness—combined with related news concerning companies like Amazon and Google—he was cited and quoted extensively during this period in publications including L’ADN, Amanpour & Co., The American Prospect, The Atlantic, Boing Boing, Channel NewsAsia, Cinco Días, East African Business Week, The Economist, Fortune, Gizmodo, Law360, Le Monde, the Los Angeles Review of Books, Medium, NRC Handelsblad, PBS NewsHour, Project Syndicate, The Washington Post, and Why Is This Happening? With Chris Hayes.]

WNYC | All Sides With Ann Fisher—Jan. 16
Life Admin With Author Elizabeth Emens (Audio)
Taking your computer in for repairs, calling the phone company about coverage, and filling out an expense form.  All of this is administrative work, which some people dread and avoid.  Elizabeth Emens, author of “Life Admin: How I Learned to Do Less, Do Better, and Live More,” says it’s about being a good life administrator.
[Note: Amid the release of Prof. Emens’ new book Life Admin: How I Learned to Do Less, Do Better, and Live More, she was interviewed and quoted extensively in media outlets including the Financial Times, The Guardian, Psychology Today, and The Times.]

Deseret News—Jan. 16
On National Religious Freedom Day, consider the double standard on religious freedom — and why it's a problem
Human rights are strongest when they're universally applied, said Katherine Franke, a professor of law, gender and sexuality studies at Columbia University. "We need to stand up for people we don't agree with because the principle at stake affects us all," she said.

Medium—Jan. 16
The Best Books I Read in 2018
The Master Switch
Tim Wu
Regardless of if you agree with Wu’s thesis, his history of 20th-century media is extremely well done and helped me to contextualize today’s internet. This was my second read through and I still got a lot out of it.

The Baffler—Jan. 17
I Believe I Can Lie
By Kimberlé Crenshaw
The questions raised by “Surviving R. Kelly” cannot be fruitfully explored without a frank confrontation with race—a confrontation that uncovers the ways the wider political culture throws Black women and girls under the bus, while damaging progressive interests in the process.

FiveThirtyEight—Jan. 17
Why One of Trump’s Biggest Legal Threats Is New York’s Attorney General
“The Mueller investigation is the shiny object everyone is watching,” Berit Berger, a former federal prosecutor and the executive director of Columbia Law School’s Center for the Advancement of Public Integrity, told me. “But under everyone’s nose are what look like much more straightforward violations of state law, including some pretty flagrant tax fraud. Depending on what happens with Mueller, that could be what actually sinks the big ship.”

Bloomberg—Jan. 17
Coffee on Huawei Being Said to be Under Investigation (Radio)
John Coffee, Professor of Law and director of the Center on Corporate Governance at Columbia Law School, discusses Huawei being said to be under U.S investigation in a trade secrets case.

The New Republic—Jan. 17
Edith Espinal Has Spent 18 Months Hiding From ICE in a Church. How Much Longer Will The Authorities Let Her Stay?
“I would bet in the next six months, we’ll see them start to move into those sensitive locations,” Columbia University law professor Katherine Franke told me. “They’ve done it in courts, they’ve done it in schools, and they said they wouldn’t do it there either. I think they’ll start taking the undocumented people and start arresting the hosts.”

CNN—Jan. 18
The judge was right to keep citizenship question off the census
By Jennifer Rodgers
In my view, Furman properly found the addition of the citizenship question to be unlawful as a violation of the Administrative Procedures Act (APA), ordering the question to be stricken from the census.
[Note: Rodgers is a lecturer at the law school and serves on the Advisory Board of the Center for the Advancement of Public Integrity (CAPI).]

The New York Times–Jan. 18
Why Jeff Bezos’ Divorce Should Worry Amazon Investors
The law doesn’t explicitly require controlling shareholders to disclose prenuptial or other agreements that could affect the disposal of their company stakes in the event of divorce. But some experts said they would support such a requirement. “It’s absolutely material, and as a result it should be disclosed,” said John C. Coffee Jr., director of the Center for Corporate Governance at Columbia University.
[Note: This article appeared in numerous publications worldwide.]

Law360—Jan. 18
Rethinking Who Decides Gateway Arbitrability Issues
One commentator begs to differ. In his view, it is simply incorrect to conclude that the parties’ adoption of procedural arbitration rules that provide for the authority of arbitrators to determine their own jurisdiction constitutes an agreement to delegate questions of arbitrability exclusively to an arbitrator. This is the “Bermann Objection.” Professor George Bermann of Columbia Law School, who, among other things, is the chief reporter of the ALI’s Restatement of the U.S. Law of International Commercial and Investor-State Arbitration, recently described his view in an amicus brief, dated Sept. 25, 2018, submitted to the U.S. Supreme Court in connection with its case Henry Schein Inc. v. Archer & White Sales Inc.

Cylindr “Changemakers”—Jan. 18
Interview with Emily Benfer
Knowledge of injustice and inequality became my motivation: If opportunity and freedom is only reserved for a select few, then we cannot call society just.

Slate—Jan. 18
Trump’s Shutdown Is a Natural Extension of Past GOP Brinkmanship
As Joey Fishkin and David Pozen wrote in a recent Columbia Law Review article titled “Asymmetric Constitutional Hardball,” the political science literature on asymmetric polarization and political structures demonstrates that Republicans are now the party that is more likely to escalate constitutional battles.

Wired—Jan. 18
As John Coffee Jr., director of the Center on Corporate Governance at Columbia Law School, told WIRED last summer, plaintiffs will have to prove that Musk meant to manipulate Tesla’s stock price, either by uncovering a paper (or text or email) trail or by weaving together enough evidence to convince a judge or jury of the CEO’s thought process as he tweeted.

Foreign Policy—Jan. 20
2019 Global Thinkers: A Decade of Global Thinkers
In 2017, Lina Khan took Amazon to task in a breakthrough paper published in the Yale Law Journal. In “Amazon’s Antitrust Paradox,” she argued that the company’s market dominance and its accumulation of user data demonstrated an urgent need for the United States to update antitrust law for the era of tech giants.
In 2018, Menaka Guruswamy argued for the decriminalization of LGBT relationships before India’s Supreme Court and won a landmark decision. Maintaining that the Indian Constitution must recognize love and not just sexual acts, Guruswamy artfully defined the essential problems with Section 377—a colonial-era law that penalized gay sex with prison terms.
[Note: Khan is an academic fellow at Columbia Law. Guruswamy is the BR Ambedkar Research scholar and a lecturer at Columbia Law.]

Leaving water for people dying of thirst could get you prosecuted: Today's talker
Spencer G. Scharff and Katherine Franke, amicus brief: "It is not the defendants' position that they were barred from applying for a permit to enter the Cabeza Prieta National Wildlife Refuge, rather, they argue, the conditions contained in the permits required them to agree not to engage in religiously motivated conduct. In this sense, the terms of the permit forced them a 'to choose between the tenets of their religion and a government benefit.' "
[Note: This article appeared in a number of other newspapers nationwide.]

EdSurge—Jan. 21
More Students Are Becoming Activists. Teachers Can Help Strengthen Their Voice.
The language of “intersectionality”—a term coined by legal theorist Kimberle Crenshaw—has helped give students a framework for understanding how their multifaceted personal identities fuel their innovations of age-old social causes.

Pacific Standard—Jan. 21
Olatunde Johnson, the Jerome B. Sherman Professor of Law at Columbia Law School, encourages her students to listen to King's "eerily prescient" mountaintop speech, delivered the day before he was assassinated, which focuses in on issues of economic justice. "Just the sense of him facing his own mortality and the danger that he was facing in participating in the struggle—there's something very powerful about the idea that he was accepting that personal sacrifice," Johnson says.

SCOTUSblog—Jan. 22
Opinion analysis: Justices affirm ruling that secret sales of invention bar later patent
By Ronald Mann
As you would expect from the near consensus at the argument, the central point of the opinion is that the on-sale bar has so plainly extended to secret sales for so many decades that adding the new catchall for conduct that “otherwise” publicizes the invention could not credibly be treated as protecting non-publicizing sales from the bar.

The New York Times—Jan. 22
For Trump Administration, It Has Been Hard to Follow the Rules on Rules
The law says that the executive branch should be allowed to interpret the law as long as its decisions aren’t “arbitrary” and “capricious.” “It’s a core protection against arbitrary governance,” said Gillian Metzger, a professor at Columbia Law School who studies administrative law.

Fast Company—Jan. 22
Mark Zuckerberg’s mentor handed the feds an argument that could be used to break up Facebook
His theory, in a nutshell: The hypothesis that came to mind was this: Consumers are giving up more value in data than they receive in services. … Similar theories have been proposed by Yale’s Nathan Newman, Columbia law professor Tim Wu, and Columbia Law School academic fellow Lina Khan.

Gizmodo—Jan. 22
I Tried to Block Amazon From My Life. It Was Impossible.
In her blockbuster academic article, Lina Khan, now a legal fellow at the Federal Trade Commission, argues that Amazon is breaking the spirit of antitrust law, but that regulators have failed to act because that law has evolved in a way to ignore monopolies if they result in immediate low costs to consumers.
[Note: Amid news concerning the application of antitrust laws to companies like Amazon and Facebook, Khan was also cited in Forbes.]

POLITICO Magazine—Jan. 23
Why There’s No Liberal Federalist Society
Whatever its theoretical weaknesses, says Columbia Law School’s Jamal Greene, “originalism’s simplicity is one of its chief selling points.” And in the abstract, it’s widely popular: In one study by Greene and his colleagues, 92 percent of people expressed support for the idea that a good Supreme Court judge should “uphold the values of those who wrote our Constitution two hundred years ago.”
[Note: This article also appeared in Patheos.]

89.3 KPCC | AirTalk—Jan. 23
SCOTUS will take up New York gun control case that might have broader implications for gun transportation (Audio)
The case itself is a fairly narrowly targeted one that has to do with people’s ability to carry a firearm, unloaded in the car, outside of the city limits—but it could have broader repercussions generally on interpretations of the Second Amendment. With us is Columbia University School of Law Professor Jamal Greene.

KTAR-FM—Jan. 24
What’s next for No More Deaths after latest convictions of volunteers?
Katherine Franke, a legal expert on the defense’s side, said the criminalization of No More Deaths’ humanitarian work can spill over to the work of other aid organizations. “I think any of the people who are providing social services to a range of communities in southern Arizona, some of whom might include undocumented people, are vulnerable to being prosecuted as well,” Franke said. “I’ve spoken to some of those people in southern Arizona, and they’re very worried and are watching how these cases go.”
[Note: This article also appeared in the Tucson Sentinel.]

The Washington Post—Jan. 25
“What has changed is ourselves,” writes Columbia law professor Philip Bobbitt in an essay appearing alongside Black’s rereleased impeachment study. “We no longer have the confidence in the leadership of Congress that we had in the Nixon era.”

CBS News—Jan. 25
"We've entered a new era" of public concern about climate change, survey finds
Americans are growing more convinced than ever that climate change is having an impact on our world, and the issue is becoming a more important part of their lives. … Professor Michael B. Gerrard, the director of the Sabin Center for Climate Change Law at Columbia University, is cautiously encouraged. "Sometimes public opinion shifts quickly, as it did with smoking and same-sex marriage," he said.

Law360—Jan. 25
High Court's 'Transgender Ban' Orders Leave Questions Open
By granting a stay, the case can proceed without undue time pressure that may have led to hasty arguments or rulings, benefiting everyone involved, according to Michel Paradis, a Columbia Law School lecturer and senior attorney for the DOD’s Office of the Chief Defense Counsel. “I think this is a compromise a reasonable administration should be willing to live with,” he said.

The News & Observer—Jan. 25
We need a new ‘giant leap for mankind’
In Climate Change and Human Rights, published in 2015, the UN Environment Program and the Columbia Law School stated that Anthropogenic climate change is the largest, most pervasive threat to the natural environment and human societies the world has ever experienced.

The Wall Street Journal—Jan. 28
A Hoax and Its ‘Human Subjects’
Philip Hamburger, a law professor at Columbia, argues that the National Research Act and the HHS’s regulations violate the First Amendment, infringing on scholars’ freedom of expression. Mr. Hamburger has likened IRB vetting procedures to the Star Chamber’s licensing of publications that prevailed in 17th-century England—which the Constitution’s drafters were eager not to replicate.

Lawfare—Jan. 29
Remembering Eisenhower’s Formosa AUMF
By Matthew Waxman
Eisenhower did more than any other president to dial up the role of threatened force in American foreign policy, and as the 1955 force resolution episode shows, he regarded formal interbranch collaboration as important to successfully implementing that strategy.

Philanthropy Daily—Jan. 29
Nonprofit groups are restructuring themselves to be political players
But as David Pozen, who teaches at the Columbia Law School, notes in this piece for the Atlantic, the tactics of the left and right in using nonprofits for political ends are starting to converge. … “The 501(c)(3) form,” Pozen writes, “fit snugly into the postwar theory of legal liberalism, in which the federal courts were seen as the key agents of social reform and professionally managed nonprofits as their partners in that effort.”

SCOTUSblog—Jan. 30
Symposium: The puzzling and troubling grant in Kisor
By Gillian Metzger
Looked at more closely, the court’s grant in Kisor is much more puzzling — and much more troubling for what the case may portend about how the Roberts Court, with its newly cemented conservative majority, views the administrative state.

The Washington Post—Jan. 30
When they go low, Melania Trump calls her lawyers
Media law experts say most public officials — and by extension, their spouses — opt against lawsuits. They worry that attention from legal action would result in more readership for the specious stories. “There’s a danger that you just give more attention to the thing that you objected to,” said June Besek, executive director of the Kernochan Center for Law, Media and the Arts at Columbia Law School.
[Note: This article appeared in numerous publications nationwide.]

The Globe and Mail—Jan. 30
SEC, OSC examine short-sellers' tactics
“I can tell you that the SEC is taking the issue more seriously," said Joshua Mitts, a professor at Columbia Law School who is advising several companies that have met with the U.S. regulator about the issue. "It's taken them a while to ramp up, but I wouldn't be surprised if we saw more enforcement cases related to short-and-distort."

BNN Bloomberg TV—Jan. 30
Short selling isn't a licence to manipulate markets: Law professor (Video)
Joshua Mitts, associate professor at Columbia Law School, discusses the standard that short sellers need to be held to and why there should be more regulation.

Glamour—Jan. 30
It’s Happening: A Case That Could Seriously Undermine Roe v. Wade Is Before SCOTUS
This isn’t the first time an abortion-related case has been brought to the Supreme Court since Kavanaugh was confirmed. In December SCOTUS declined to rule on two cases involving Planned Parenthood.“They may have decided this is not the year to stick their necks out following [the controversy over] Kavanaugh,” says Carol Sanger, a professor at Columbia Law School and author of About Abortion: Terminating Pregnancy in Twenty-First-Century America.

MSNBC—Jan. 31
Trump says he never talked to Roger Stone about Wikileaks (Video)
In a new wide-ranging interview with the president, Trump denied ever discussing Wikileaks with Roger Stone during the 2016 campaign. We discuss that and more with Peter Baker, Clint Watts, and Berit Berger (10:10).

Just Security—Jan. 31
Trump’s Moves Against the Intelligence Community Are Hurting U.S. National Security
As early as December 2016, Matthew Waxman, who served in senior roles in the George W. Bush administration, called attention to the issue of Trump needing to rely on the IC’s credibility while simultaneously undermining it.

Fast Company—Jan. 31
Brand strategist Ana Andjelic loves vintage denim and this sustainable fashion brand
What books on your nightstand?
The Master Switch: The Rise and Fall of Information Empires by Tim Wu. I have always been deeply intrigued by agglomeration and dismantling of media companies, old and new.

Rewire.News—Jan. 31
Texas Woman Opposes Divorce Citing ‘Blood Covenant’; Will Anti-Sharia Law Get in the Way?
By Elizabeth Reiner Platt
While the Lecuonas’ case should be resolved quickly, the conflict between Shawn’s request for state enforcement of her Christian understanding of marriage and H.B. 45 raises larger questions about whose religious beliefs are, or should be, respected under the law. This is especially true for the two states—Arizona and Louisiana—that have enacted both covenant marriage laws and anti-sharia laws.
[Note: Platt is the director of the Law, Rights, and Religion Project.]

Los Angeles Review of Books—Jan. 31
You, Plural
A YEAR AGO, at the university where I teach, legal scholar Kimberlé Crenshaw lectured to a packed auditorium of first-year students who had just finished their summer reading project: Ta-Nehisi Coates’s 2015 book Between the World and Me. Crenshaw’s talk was entitled “The Urgency of Intersectionality,” but her young audience understood the urgency already.

# # #

This report, which gets posted online as well, shares mentions of Law School faculty cited in print, broadcast, and online news outlets. It is not intended to be inclusive of every media mention. Faculty members who are featured in the media are encouraged to send their clips to [email protected] for possible inclusion in our Clip Report. Faculty members seeking assistance in placing an op-ed, promoting scholarship, facilitating interviews, event coverage, or media training, may email us at [email protected] or call us at 212-854-2650.