Faculty in the News

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

Buzzfeed News—May 16
This Democrat Is Running For President Behind A $9 Trillion Dollar Climate Change Plan
“This is one of the most comprehensive plans I've seen in the political context,” Michael Gerrard, director of Columbia University’s Sabin Center for Climate Change Law, told BuzzFeed News in an email. Some of the more novel elements of the proposal, according to Gerrard, include setting a national “Energy Efficiency Resource Standard” to encourage utilities to adopt energy efficiency initiatives, as well as launching a new Department of Agriculture program devoted to innovative farming and agriculture research.

Columbia Journalism Review—May 16
White House refuses to join ‘Christchurch Call’ on extremism
The White House said its position is based on the classic First Amendment principle that the appropriate solution to bad speech is more good speech. But a number of experts—including Columbia Law School professor Tim Wuargue that bad speech, fueled by the algorithms of giant platforms like YouTube and Facebook, can drown out good speech.

Zero Hedge—May 16
Radioactive 'Nuclear Coffin' May Be Leaking Into The Pacific
"The United States Government has acknowledged that a major typhoon could break it apart and cause all of the radiation in it to disperse," said Columbia University's Michael Gerrard.

Irish Times—May 16
Dublin ‘can learn from Vienna’, where public transport cost only 365 euros a year
Prof Chuck Sabel of Columbia Law School in the US said there had been very promising developments in Irish agriculture, notably in dairying and in ensuring water quality by managing catchments in response to pollutants arising from farming. He was optimistic for the sector, though not all problems were solved. A methane emissions issued still had to be addressed.

Dissent Magazine—May 17
A Trumpist Constitution?
By Jedediah Britton-Purdy
Political criticism of courts is normal democratic politics. It’s all the more so when courts are sharply anti-democratic and aligned with a waning minority party. But the criticism should be principled: in favor of democracy, and with a clear idea of what work courts should be doing. The challenge will be to contest their power in the name of a genuine and inclusive self-governance, and to define the modest but essential role of judges in that vision.

The Washington Post—May 17
Everything you need to know about the abortion ban news
Carol Sanger, professor at Columbia Law School, said such penalties on doctors were “just another way to make women frightened” and create “more disincentives for physicians and residents to take up this practice.”
[Note: This article appeared in numerous outlets worldwide. Amid news concerning antiabortion bills proposed in state legislatures, particularly in the state of Alabama, Sanger was also quoted in Business Insider, The Hill, Jezebel’s The Slot, The Los Angeles Times, and the New York Post.]

NBC News—May 17
Washington vows to act on carbon monoxide hazards, but protections could be delayed for months
But Emily Benfer, a visiting associate clinical professor of law at Columbia University and an environmental health expert, believes that HUD could simply add a requirement for detectors under the existing air quality standards for HUD housing, forgoing formal rulemaking. “The amount of time they’ve taken to address this issue is so baffling,” Benfer said. “There could be lives lost in the days, months and years to come if they don’t take action.”

New York Post—May 17
Overstock CEO lambastes critics of stock sale
Overstock Chief Executive Patrick Byrne blasted investors who questioned his recent stock sale, calling their criticism “gauche” and vowing never to defend his selling again. . . . “I have not seen anything quite like this. He seems to be saying: ‘Peasants, how dare you doubt me?’” John Coffee, a Columbia Law School professor, told The Post in an email.

Reason—May 17
George Kelling, Father of 'Broken Windows' Policing, Dies
Other academics, like Columbia Law School professor Bernard Harcourt, have argued there has never been any empirical evidence that cracking down on minor crimes prevents more serious ones.

Vox—May 17
Countervailing powers: the forgotten economic idea Democrats need to rediscover
There is no doubt that corporate concentration is increasing. As law professor Tim Wu writes in The Curse of Bigness: Antitrust in the New Gilded Age: In the United States, between 1997 and 2012, 75 percent of American industries became more concentrated. Similarly, since the year 2000, across U.S. industries, the Herfindahl-Hirschman index, which measures market concentration, has increased in over 75 percent of industries.
[Note: Amid news concerning the application of antitrust law to companies like Amazon and Facebook, Wu was also quoted or cited in outlets including Boing Boing, Die Zeit, Global Competition Review, USA Today, and WIRED.]

The Wall Street Journal—May 18
Resistance to Noncompete Agreements Is a Win for Workers
Noncompete clauses “severely impact low-wage workers, who are working in those [low-wage] industries because they don’t have alternatives,” said Ronald Gilson, professor of law at Columbia and Stanford universities who has researched the topic. Among such workers, the agreements have “no other purpose than to restrict competition in the market for employees,” he said.
[Note: This article also appeared in The Toronto Star.]

The Washington Post—May 20
The U.S. put nuclear waste under a dome on a Pacific island. Now it’s cracking open.
“The bottom of the dome is just what was left behind by the nuclear weapons explosion,” Michael Gerrard, the chair of Columbia University’s Earth Institute, told the ABC. “It’s permeable soil. There was no effort to line it. And therefore, the seawater is inside the dome.”
[Note: This article appeared in numerous outlets worldwide.]

E&E News—May 20
Did federal regs really kill Trump's luxury development?
The golf course plan was pulled in 2004 following years of local pushback by residents of Mount Kisco, N.Y., who were concerned that pesticides sprayed on an 18-hole golf course would make their way into nearby Byram Lake, which supplied the town's drinking water. "It is a big lake; no one would call it a puddle," said Michael Gerrard, a Columbia University Law professor who represented Mount Kisco at the time.

The Baffler—May 21
Zuck’s New Scam: Don’t buy into Facebook’s pivot to privacy
The logic of surveillance capitalism cannot be circumnavigated via a new company slogan. If anything, Zuckerberg’s privacy talk is an endorsement of this model. As Bernard Harcourt points out, “the watching works best not when it is internalized, but when it is absentmindedly forgotten.”

HuffPost—May 21
Concrete ‘Coffin’ Storing U.S. Atomic Bomb Waste At Risk Of Rupture, UN Chief Warns
“Runit Dome represents a tragic confluence of nuclear testing and climate change,” Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, told The Guardian in 2015. “It resulted from U.S. nuclear testing and the leaving behind of large quantities of plutonium. Now it has been gradually submerged as result of sea level rise from greenhouse gas emissions by industrial countries led by the United States.”

MSNBC | MSNBC Live With Stephanie Ruhle—May 21
Judge denies Trump bid to block financial records from Congress (Video)
A federal judge has soundly rejected arguments from President Trump’s lawyers, forcing the president’s accounting firm to hand over financial records to Congress, creating a big setback for the White House. Former federal prosecutor Berit Berger and former U.S. Attorney Greg Brower join Chris Jansing to explain why that's just the beginning of the legal fight.
[Note: Berger is the executive director of the Center for the Advancement of Public Integrity.]

Law360—May 21
How Lawyers Can Help Save The Planet
By Michael Gerrard and John Dernbach
Now we are making a legal toolkit available with more than 1,000 specific recommendations for actions at the federal, state and local levels and in the private sector that could help advance the technical tools already available. Many lawyers are needed to help these recommendations become reality.
[Note: This article also appeared in Mondaq.]

SCOTUSblog—May 21
Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy
By Ronald Mann
Yesterday’s opinion in Mission Product Holdings Inc. v. Tempnology, LLC resolved a long-standing disagreement in the lower courts about what happens when a debtor exercises its statutory right to reject a contract in bankruptcy. . . . Justice Elena Kagan’s opinion for the Supreme Court gives us a clear answer: Rejection breaches but does not rescind the contract in question.

Bloomberg Law—May 21
Ariana Grande, Louis C.K. Concert Rules Push Copyright Limits
Aspects of Grande’s agreement may not be enforceable. June Besek, a media and copyright law professor at Columbia University, noted that the waiver is framed as a work-for-hire agreement, but lacks legally required elements of such a contract. . . . “I think it’s unreasonable,” Besek said, adding that she doesn’t see any financial loss for Grande absent the rights grab. “It’s just fundamental fairness. Why should she own that stuff?”

Crosscut—May 21
Can tribes sue the government over climate change?
“The courts in the United States have long been of the view that there is no right to a healthy environment or any particular level of environmental quality,” says Michael Burger, executive director of the Sabin Center for Climate Change Law. “And the government doesn’t have an obligation to protect those things, at least under the Constitution.”

The Washington Post—May 22
Five legal principles for the Green New Deal
By Michael Burger
As the Green New Deal continues to attract attention on both the left and right, a key element has been missing from the conversation: What the law behind all these big ideas might actually look like.

Climate Liability News—May 22
Oil Company Supporters Argue Cities Cannot Sue for Climate Liability
“Cities and counties filing lawsuits seeking compensation or abatement under a range of theories ranging from public nuisance to failure to warn simply does not amount to an infringement on First Amendment rights,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School. “There is no First Amendment protection for failing to warn consumers of known harms from products.”

Financial Times—May 22
Technology platforms are losing control
Lina Khan, a fellow at Columbia Law School, has attacked Amazon for exploiting the gaps in US competition law, arguing that it has “marched toward monopoly by singing the tune of contemporary antitrust”. Khan singles out its vertical integration, which is treated leniently by US authorities.
[Note: Khan is an academic fellow at Columbia Law. Amid news concerning the application of antitrust laws to companies like Amazon and Facebook, she was also quoted and cited in media outlets including Recode Decode and WIRED UK.]

NBC News—May 22
House Democrats propose $25 million fund for CO detectors and other health upgrades in public housing
Emily Benfer, a visiting associate clinical law professor at Columbia University, agreed. “This is a critical step to ensuring that public housing will not be the source of asthma, lead poisoning, cancer or death,” Benfer said. “Especially in light of the risk of carbon monoxide poisoning and the recent and tragic loss of life in public housing, Congress' investment in the health and well-being of residents is critical.”

WNYC | The Takeaway—May 22
States Across the Country Consider Cash Bail Reform (Audio)
For an update on the efforts to reform the cash bail system, The Takeaway reached out to Kellen Funk, a law professor at Columbia Law School.

The New York Times—May 23
Narendra Modi, India’s ‘Watchman,’ Heads for Historic Election Victory
“The scale of the win is remarkable,’’ said Menaka Guruswamy, a senior lawyer in India’s Supreme Court and lecturer at Columbia Law School. But she added: “I don’t know of a word that begins to capture how deeply divided we are at this point.’’
[Note: This article also appeared in The Toronto Star.]

Financial Times—May 23
Trump and the environment: can green lobby’s victories continue?
Since Mr Trump took office more than 150 lawsuits relating to climate and environmental protections have been filed against the federal government, according to a database maintained by the Columbia Law School.

Governing—May 23
In Tribe v. State Cases, Supreme Court Shifts Support to Native Americans
A week after the oral arguments, the Supreme Court directed the parties in the case to file further briefs. The questions they wanted answered suggested that “they are looking for creative ways to resolve the dispute,” wrote Ronald Mann, a Columbia University law professor, for SCOTUSblog.

The Guardian—May 23
Indicting a journalist? What the new charges against Julian Assange mean for free speech
Scott Horton, an international human rights lawyer who lectures at Columbia Law School, said the administration could try to produce evidence to support a contention that in 2016, Assange knew that he was receiving emails stolen from the Democratic party by Russian military intelligence, proving he was acting as a foreign agent. “That would open a Pandora’s box for this administration, which is trying to get away from the idea of collusion,” Horton said. “The downsides for the Trump team are extremely dangerous.”
[Note: This article also appeared in Yahoo News.]

Carson's struggle to solve lead paint peril spurs lawmakers to act
The Centers for Disease Control reported in 2014 that 4.1 percent of children in the country tested positive for a blood lead level above 5 micrograms of lead per deciliter of blood. Applying that percentage to the number of children in the Housing Choice Voucher program — who are more likely than those not on assistance to live in deteriorating housing — would mean over 90,400 of those children are currently lead-poisoned, according to Emily Benfer, a Columbia Law School associate professor who testified before Congress last year on lead in housing.

The Progressive—May 24
Redeeming the Promise of the Past for Justice in the Present
In Repair: Redeeming the Promise of Abolition, Columbia Law School professor Katherine Franke examines past attempts by Union military commanders and northern abolitionists to create models for a new Southern order.

Just Security—May 25
Can a Pardon Be a War Crime?: When Pardons Themselves Violate the Laws of War
By Gabor Rona
President Donald Trump’s inclination to grant pardons to several military and contractor personnel accused or convicted of war crimes may itself be a violation of the laws of war, if not a war crime.
[Note: Rona is a lecturer at the Law School. This article was also referenced in AlterNet and Inquisitr.]

Slate—May 27
Trump’s Judge Whisperer Promised to Take Our Laws Back to the 1930s
By Jamal Greene
A longtime leader within the Federalist Society, Leo has had Donald Trump’s ear on judicial appointments and has been the main curator of the president’s list of Supreme Court candidates. Two of Leo’s personal picks, Brett Kavanaugh and Neil Gorsuch, have been elevated to the highest court in the country since Trump’s election. So when Leonard Leo says he wants to return to a pre–New Deal Constitution, you should listen. And you should be alarmed.

The Times—May 28
Let Americans break up Big Tech
But a new generation of antitrust scholars argue market intervention is warranted regardless of whether it benefits consumer welfare. In 2017, Lina Khan, a legal scholar and now adviser to the US House sub-committee on antitrust, commercial and administrative law, published a paper in the Yale Law Journal, "Amazon's antitrust paradox", which has since become hugely influential. Likewise Columbia law professor and antitrust specialist Tim Wu insists that big is bad. In a New York Times op-ed late last year, he warned there is "a direct link between [market] concentration and the distortion of democratic process".

BBC Radio 4 | Woman’s Hour—May 28
Kimberlé Crenshaw and Intersectionality at 30, and Bishop of London Sarah Mullally (Audio)
In 1989 Kimberlé Crenshaw Professor of Law at Columbia University and UCLA coined the term Intersectionality. . . . Kimberlé Crenshaw joins Tina Daheley with Phyll Opoku-Gyimah, Head of Equalities and Learning at Public and Commercial Services Union and Co-founder of UK Black Pride to explain how the term has developed, how it has been misunderstood and why it’s important.
[Note: Crenshaw and her work on intersectionality were also referenced in media outlets including BUST Magazine, Forbes, Out.com, and Yahoo News.]

Bloomberg—May 28
Google’s Chrome Becomes Web ‘Gatekeeper’ and Rivals Complain
“The browser is the thing which sees the most of you,’’ said Eben Moglen, an antitrust law professor at Columbia Law School who has studied browsers and their role in competition for decades. Chrome has become outright hostile to services that seek to cut down on advertising, like ad blockers, Moglen added.
[Note: This article appeared in numerous outlets worldwide. It was also cited in Boing Boing.]

Law.com—May 28
Old School: David Pressman Brings Diplomacy to Boies Schiller Flexner
Columbia Law School’s Sarah Cleveland, a legal adviser to the State Department during Pressman’s tenure as ambassador, noted that the kind of practice he’s developed requires equal dexterity outside the courtroom. “You can’t just rely on a legal strategy,” she said. “You need political engagement.”

Thomson Reuters Foundation News—May 28
INTERVIEW-U.N. reform needed to stop companies fighting climate rules - Nobel laureate Stiglitz
Under ISDS, a nation that hurts a company's profits by imposing new rules that add to the cost of building a natural gas pipeline, for example, could be sued by the company, Stiglitz said. . . . With ISDS claims possible under more than 3,000 trade agreements worldwide, cases have proliferated in the last decade or so, according to the Columbia Center on Sustainable Investment (CCSI).
[Note: This article appeared in numerous outlets worldwide.]

Vox—May 28
The intersectionality wars
I met Kimberlé Crenshaw in her office at Columbia Law School on Manhattan’s Upper West Side on a rainy day in January. . . . The current debate over intersectionality is really three debates: one based on what academics like Crenshaw actually mean by the term, one based on how activists seeking to eliminate disparities between groups have interpreted the term, and a third on how some conservatives are responding to its use by those activists.

Ethical Boardroom—May 29
Applying Commonsense Principles 2.0
By Kristin Bresnahan
As shareholders have become more engaged and the general public has become more focussed on how corporations in the US and around the world run themselves, different groups have put forward their ideas on how to best advance the interests of sound corporate governance. . . . At Columbia Law School’s Ira M. Millstein Center for Global Markets and Corporate Ownership, we have partnered with the leaders of the Commonsense Principles to foster this critical dialogue and advance the ball to benefit investors, public companies and the broader American public, all of whom are impacted by the decisions made in boardrooms in the US and around the world.

SCOTUSblog—May 29
Opinion analysis: Divided bench limits removal of class actions
By Ronald Mann
Yesterday’s decision in Home Depot USA v. Jackson offers an unusual outcome: a holding by the justices that limits the ability of defendants in large class actions to remove those cases to federal court. The lineup is also unusual, with Justice Clarence Thomas writing for the majority, over a dissent by four of the justices usually regarded as conservative: Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh.

ABA Journal—May 29
Are law schools doing enough to help with student stress?
The Journal of Legal Education article, titled “Where Are We on the Path to Law Student Well-Being? Report on the ABA CoLAP Law Student Assistance Committee Law School Wellness Survey,” is written by Jordana Alter Confino, the assistant director of academic counseling at Columbia Law School. . . . Among the task force recommendations for law schools were offering onsite, professional counseling services, including well-being topics in professional responsibility courses and discouraging alcohol-centered social events.

ABC Radio | The World Today—May 29
Johnson and Johnson opioids trial attracts global attention (Audio)
Lawyers are keenly watching the case, including Columbia Law School professor of law John Coffee, who says the case is unique and complex.
Coffee: It may be innovative, it may be creative, it may work—and whatever this judge says, there’ll be appellate courts reviewing it, so we’ll have some time to go before we see if this new artform will really work, but every state is watching this.

Boston Review—May 29
The False Promise of Enlightenment
. . . Katharina Pistor’s The Code of Capital is also an urgent tract. The difference, in her telling, is that the law doesn’t always ride a white horse. It comes as often to perpetuate injustice as redress it.

The Globe and Mail—May 29
Mueller breaks silence on Russia investigation, declines to clear Trump of wrongdoing
Jennifer Rodgers, a former federal prosecutor who now lectures at Columbia University in New York, said it was significant that Mr. Mueller had chosen to break his silence. "Mueller clearly preferred to speak through his work, so in that sense it is very meaningful that he spoke publicly,” she said. “I think he spoke out to try to correct misinformation about the report, to defend the investigation itself and his team, and to state that he didn’t intend to speak further.”

HuffPost—May 29
Trump’s Bid To Weaken The Next Federal Climate Report Is Likely To Backfire
“Any effort to limit climate projections to the year 2040 would be plainly illegal,” said Michael Gerrard, the director at Columbia University’s Sabin Center for Climate Change Law.
[Note: This article also appeared in Yahoo News.]

Newsweek—May 29
“All of the prosecutions of the No More Deaths activists implicate the kind of basic humanitarian aid that many organizations are giving throughout the country,” Katherine Franke, director of the Law, Rights, and Religion Project at Columbia Law School, told Newsweek. “By the terms of these charges, if someone puts out food or water or any other aid, they risk federal prosecution.”

PBS NewsHour—May 29
As Mueller steps aside, Democrats face pressure to tackle impeachment head on
Mueller “expressed himself carefully and precisely, but I do have a problem with him saying, ‘If you don’t get it, you’re out of luck,’” said Philip Bobbitt, former associate counsel to President Jimmy Carter.

FactCheck.org—May 30
FactChecking Trump’s Response to Mueller
Philip Bobbitt, a law professor at the University of Texas, referred us to Alexander Hamilton’s Federalist No. 65, which states that the subjects of impeachments “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” . . . “The president seems to be confusing ‘High Crimes’ which are political offenses, see Federalist #65, with ordinary crimes and perhaps also confusing the term ‘misdemeanor’ with the common understanding of this as a minor offense,” Bobbitt said.

The Guardian—May 30
The Anthropocene epoch: have we entered a new phase of planetary history?
In After Nature, the law professor Jedediah Purdy writes that using the term “Anthropocene” to describe a wide array of human-caused geological and ecological change is “an effort to meld them into a single situation, gathered under a single name”. To Purdy, the Anthropocene is an attempt to do what the concept of “the environment” did in the 1960s and 70s. It is pragmatic, a way to name the problem – and thus begin the process of solving it.

The Hill—May 30
Time is now: Democrats should move forward on impeachment inquiry
As law professors Charles Black Jr. and Philip Bobbitt explained in their primer on impeachment: “The English history seems to establish with some clarity that the English did not understand the phrase [‘high crimes and misdemeanors’] as denoting only common crimes, but in some sense saw it as including serious misconduct in office, whether or not punishable as crime in the ordinary courts” (emphasis in original, p. 44).

Patheos—May 30
Caring for Migrants Is Not Just Humanitarian Work—It’s Religious Work
In addition, Katherine Franke, director of the Law, Rights, and Religion Project at Columbia Law School, criticized the Department of Justice for its “contradiction in how they support religious liberty.” Franke, who filed an amicus brief supporting Warren’s religious claims, argued that Warren’s prosecution offers a “troubling message” to people of faith who, like Warren, “are interested in the sanctity of life” and demonstrate that concern for life through humanitarian aid to vulnerable people, including migrants.

Zero Hedge—May 30
Radioactive Nuclear Dome Leak May Be Poisoning Shellfish In Pacific
"The United States Government has acknowledged that a major typhoon could break it apart and cause all of the radiation in it to disperse," said Columbia University's Michael Gerrard.

Morning Joe—May 31
AG Barr weighs in on Mueller remarks (Video)
Analyst Chuck Rosenberg and former Assistant U.S. Attorney, Berit Berger, discuss Attorney General William Barr's recent comments about Robert Mueller's public remarks on the Russia investigation.

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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.