Faculty in the News
Columbia Law School Clip Report, June 1–30, 2019
ABA Journal—June 1
Advocates sue Rhode Island to require civics ed for students
“Students are not adequately educated in civics and how our government functions,” says Michael A. Rebell, lead lawyer for the plaintiffs. Rebell, a veteran litigator, is executive director of the Campaign for Educational Equity at Teachers College, Columbia University, and an adjunct professor at Columbia Law School. He brought the case on behalf of the plaintiffs based on his seminar for Columbia law students called Schools, Courts and Civic Participation.
New York Post—June 1
State Education Department ordered Jewish school to accept unvaccinated kids
The state Legislature is currently considering a bill to eliminate religious exemptions to vaccinations. But state agencies are putting out a confusing message in this case, said Columbia and NYU public-health law professor Janlori Goldman. “If we’re going to allow for religious exemptions then we take the risk that there’s going to be outbreaks,” she said.
[Note: Goldman is a lecturer at the Law School.]
The Atlantic—June 2
Republicans and Democrats Are Describing Two Different Constitutions
By David Pozen, Eric Talley, and Julian Nyarko
Elected officials from both parties appeal routinely to the nation’s foundational document. But, far from serving as a symbol of “unity and common purpose,” the Constitution has come to enable, or even exacerbate, partisan strife. In political debates such as the Trump tax tussle, it often feels as if the United States has two legal charters, one for Republicans and another for Democrats.
[Note: Nyarko is a postdoctoral fellow at the Law School.]
The New York Times—June 2
U.S. Requiring Social Media Information From Visa Applicants
“This seems to be part and parcel of the same effort to have an extraordinary broad surveillance of citizens and noncitizens,” Elora Mukherjee, director of the Immigrants’ Rights Clinic at Columbia Law School, said on Sunday of the latest development. “Given the scope of the surveillance efforts, it is hard to find a rational basis for the broad surveillance the Department of State and the Department of Homeland Security have been doing for almost two years.”
[Note: This article appeared in numerous media outlets worldwide. Mukherjee’s comments also appeared in Esquire Italia and Le Temps.]
New York Daily News—June 2
Schumer demands broadband companies quit lying about internet speeds, calls for FCC crackdown
Tim Wu, a professor at Columbia Law School who has been a leading advocate for equitable, open internet, or net neutrality, backed Schumer’s efforts, noting that internet companies stand to profit from lying about their speeds. “The cable and phone companies have routinely deceived the public when it comes to the broadband speeds they promise and what they deliver,” said Wu. “Unfortunately, the FCC has been complicit in this deception for many years.”
[Note: Wu’s statement was also referenced in City & State New York and Newsday. Amid news concerning net neutrality, Wu was also mentioned in The Chronicle of Philanthropy.]
The New York Times—June 3
83 Environmental Rules Being Rolled Back Under Trump
A New York Times analysis, based on research from Harvard Law School, Columbia Law School and other sources, counts more than 80 environmental rules and regulations on the way out under Trump.
[Note: This article also appeared in The Seattle Times.]
THE NEW ANTITRUST SCRUTINY SHOULD WORRY SILICON VALLEY
In recent years, critics like antitrust scholar Lina Khan and populist agitators like the Open Markets Institute have raised public awareness about this so-called consumer welfare standard—offering citizens some insight into why enforcers have viewed Silicon Valley differently than Standard Oil.
[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 Bloomberg, Boing Boing, Citizen Truth, CNBC, Commentary Magazine, Les Échos, Gizmodo, MarketWatch, Medium, The Print, Radiotelevizija Slovenija, Vox’s Recode, the San Francisco Chronicle, The Star (Malaysia), the Vietnam Investment Review, The Wall Street Journal, and The Washington Post.]
Committed to the status quo
When we know critical facts like these, we are no longer surprised by what goes on today: That, according to the ACLU, which has written extensively about the problems of having police in schools, police officers do little at best to prevent shooting tragedies. . . . Or that, as researchers Aaron Chalfin and Justin McCrary note in an October 2015 study, there isn’t persuasive evidence that the police have any impact on violent crime.
A BROAD AND SOBERING VIEW OF CONSTITUTIONAL SAFEGUARDS
For one thing, we should stop assuming that “American institutions are fundamentally resilient merely because the country has seen much worse.” (Id.) It is easy to see how bit by bit, norms that support these institutions can be chipped away—a point more fully examined in an essay by Josh Chafetz and David Pozen in the same UCLA volume.
Opinion analysis: Justices reject subjective standard on sanctions for violating the bankruptcy discharge
By Ronald Mann
Yesterday’s decision in Taggart v. Lorenzen will not go down as one of the major decisions of the term, but it should provide some useful guidance in an area as to which the Supreme Court has not previously spoken: the standards for punishing creditors that violate the discharge that bankruptcy provides to debtors.
The New York Times—June 4
Judges Give Both Sides a Grilling in Youth Climate Case Against the Government
“If the Ninth Circuit expresses a view about the proper role of the courts in addressing climate change, that could have broad implications for other cases,” said Prof. Michael Gerrard, founder of the Sabin Center for Climate Change Law at Columbia Law School. “But it is also possible that the court will rule on narrow procedural grounds that apply only to this case.”
[Note: This article appeared in numerous media outlets worldwide. Amid news concerning the case Juliana v. United States, Gerrard was also quoted in Consumer Affairs, CNN, Legal Reader, and The Los Angeles Times.]
Bloomberg Opinion—June 4
Google and Facebook Shouldn’t Worry About a Breakup. Yet.
Massachusetts Senator Elizabeth Warren has called for a new approach to antitrust, and other Democratic presidential candidates have echoed her. Columbia University law professor Tim Wu published a manifesto, “The Curse of Bigness,” arguing for the abandonment of the Chicago approach. A note in the Yale Law Journal by Lina Khan arguing against the consumer welfare standard as it presently exists has gotten more discussion than any piece of student writing in well over a generation.
[Note: This article also appeared in Diario Gestión.]
NEW YORK'S PRIVACY BILL IS EVEN BOLDER THAN CALIFORNIA'S
Antitrust scholars, like Lina Khan, who works on the House Subcommittee on Antitrust, Commercial, and Administrative law, have argued that it's incompatible with existing law in Delaware, where so many tech giants are incorporated, that requires companies to maximize returns for shareholders. "A fiduciary with deeply divided loyalties teeters on the edge of contradiction," Khan and her fellow Columbia Law professor David Pozen wrote in March.
Medium | OneZero—June 5
Don’t Be a Phonehead
By Tim Wu
But for a growing population, “head down” is no longer merely a brief moment, but how all walking is done. The neck is bent, the headphones are in; collisions are barely avoided by a last minute glance. Meet the “phoneheads”: the head-down marchers taking over city streets around the world. You’ve surely seen them; you may even be one yourself — and they’re destroying city life as we know it.
The Atlantic—June 5
What Do 2020 Candidates Mean When They Say ‘Reparations’?
And the Columbia University professor Katherine Franke, the author of a book on reparations, called them “a tool and an opportunity for us to recover a kind of history … but to not relegate it only to history, but make it part of our national memory.” After the Civil War, America should have given recently enslaved people “the material resources to be free and full citizens,” she argued.
Tech's antitrust problem has been out in the open for years (Article and video)
"Much of this conduct has been hiding in plain sight," said Tim Wu, a law professor at Columbia University and author of The Curse of Bigness: Antitrust in the New Gilded Age. He and other antitrust experts tick off a number of factors that may have allowed this behavior to go on in the open so long . . . There was a sense, Wu said, that "tech is different."
[Note: Amid news concerning the application of antitrust laws to companies like Amazon and Facebook, he was also quoted and cited in media outlets including The American Prospect, Bloomberg Opinion, CRN, Gizmodo, Folio:, MarketWatch, The New York Times, Mundo Contact, Nonprofit Quarterly, POLITICO and The Verge.]
Deseret News—June 5
How bail laws fail poor Americans and what faith groups are doing to help
"There's been a rethinking of the old model" after high-profile deaths in police custody and public debate about racial disparities, said Kellen Funk, a legal historian at Columbia University who researches the history of the bail system.
FOCUS Online—June 5
Pellwormer Familie verklagt Bundesregierung, weil sie ihre Klimaversprechen nicht hält (German)
A database of the Sabin Center for Climate Change Law and Columbia Law School has approximately 900 climate records in the US since 1986, more than 250 in the rest of the world.
MSNBC | The Beat With Ari Melber—June 5
DEMS NOW PRESSING MUELLER: TESTIFY OR GET SUBPOENAED (Video)
If Dems can get other witnesses "who are part of this obstruction piece of the Mueller report in there, they could possibly provide the same, if not more, information than Mueller ultimately would," - Berit Berger
Los Angeles Times—June 6
Neighboring cities are pushing homeless into L.A., councilmen alleged
The Boise ruling applies to municipalities in California and eight other states, said Maria Foscarinis, executive director of the National Law Center on Homelessness and Poverty, one of the groups that represented the plaintiffs in the case. Cities that seek to prohibit sleeping on the sidewalk can comply with the decision, she said, if they provide residents with an alternative — shelter beds, affordable housing or rental buildings with supportive services, such as mental health or addiction counseling.
[Note: Foscarinis is a lecturer at Columbia Law and an alumna.]
As Justice Department prepares antitrust case, Facebook and Google face a billion-dollar question: What’s your data worth?
Cases like the one unfolding in federal court are happening “in a world of ambiguity,” according to Katharina Pistor, a professor of comparative law at Columbia Law School and director of the school’s Center on Global Legal Transformation. Pistor, author of “The Code of Capital: How the Law Creates Wealth and Inequality,” said, “We are still in a world with a degree of uncertainty as to how to legally categorize data.”
National Review—June 6
What’s Wrong with Chevron Deference Is Congress
Off the bench, conservative commentators have been even more critical, suggesting Chevron is a dire threat to the democratic order. Columbia University law professor Philip Hamburger warns that it creates “systemic bias” in favor of the federal government, while lawyer and regulatory scholar Peter Wallison argues that Chevron is the primary source of the administrative state’s “threat to democracy.”
NBC New York—June 6
I-Team: Queens Prosecutors Accused of 'Egregious' Violations in 1997 Armored Car Case
“It’s not enough to just turn over a document. You have to highlight it for the defense,” said Berit Berger, a former Assistant US Attorney who now teaches at Columbia Law School. “You can’t just bury a piece of exculpatory information in a stack of 500 documents and say ‘but I turned it over, I’m totally fine.’”
Public Radio International | The World—June 6
Crimes of compassion: US follows Europe's lead in prosecuting those who help migrants (Audio and article)
Arizona’s aid groups — the smaller ones in particular — fear that if Warren is found guilty, they’ll have to stop serving migrants soup or providing them temporary shelter, said Katherine Franke, director of Columbia Law School’s Law, Rights and Religion Project. She filed an amicus brief in Warren’s case. “The risks could radiate outward from these particular cases to anybody who may advertently or inadvertently provide aid to a person who doesn't have legal papers,” Franke said.
[Note: This story appeared in numerous outlets nationwide.]
The New York Times—June 7
Opinion | The Roots of Big Tech Run Disturbingly Deep
By Tim Wu and Stuart A. Thompson
“Big tech” companies like Google and Facebook are, in reality, the products of hundreds of mergers. Each root below represents a company acquired by a tech giant at a particular moment in its history. A vast majority of these acquisitions, funded by public markets, have received minimal media coverage and limited regulatory scrutiny. But that is changing, given new concerns about consolidation in the tech industries.
Gotham Gazette—June 7
Should a Top Prosecutor Have Prior Prosecutorial Experience? 'Qualifications' Debate Rages in Queens District Attorney Race
“It’s definitely important to have criminal law experience,” said Jennifer Rodgers, a former prosecutor with the U.S. Attorney’s Office for the Southern District of New York and lecturer-in-law at Columbia Law School. “You can obviously have that experience on either side. You can have it as a prosecutor, you can have it as a defense lawyer.”
The Times of India—June 7
‘The verdict on Section 377 was a major victory, but now it is time for gender-neutral laws’
Menaka Guruswamy, a senior advocate and gay rights activist, says, “Besides making consensual sex between the same-sex partners legal, the verdict recognises the rights to equality, dignity, freedom of expression, and non-discrimination. It recognises the right to choose your partner of any sex and the LGBTQIA+ members as citizens with a right to be in the public sphere.”
[Note: Guruswamy, BR Ambedkar Research Scholar and a lecturer at Columbia Law, was one of the prime architects of a successful multi-year advocacy campaign to overturn a law in India that criminalized “carnal intercourse against the order of nature.”]
The Economic Times—June 10
On trade dynamics
By Jagdish Bhagwati
But when all is said, the fact is that we lack a clear, coherent and comprehensive sense of how globalisation — and I refer to economic globalisation (which embraces diverse forms of international integration, including foreign trade, multinational direct foreign investment, movements of short-term portfolio funds, technological diffusion and cross-border migration) — works and how it can do better.
Will Congress Finally Fix Insider Trading Law?
Columbia Law School professor Jack Coffee helped draft the bill. The current problem, Coffee told Law360, is that Rule 10b-5 under the Securities Exchange Act doesn't ban insider trading — it simply prohibits fraud. While courts have worked to apply the fraud rubric to insider trading, the U.S. Securities and Exchange Commission has struggled to police trading on inside information grabbed in illicit, but nonfraudulent, ways. "If you get the information unlawfully, improperly, unethically, criminally, but without using fraud, the SEC is powerless," Coffee said.
The Millions—June 10
Is There a Poet Laureate of the Anthropocene?
Legal scholar Jedediah Purdy explains in After Nature: A Politics of the Anthropocene that “we have made the world our anthill: the geological layers we are now laying down on the earth’s surface are marked by our chemicals and other industrial emissions, the pollens of our crops, and the absence of the many species we have driven to extinction.”
MSNBC | Deadline: White House—June 10
Central figure in Watergate scandal testifies to striking parallels between Nixon and Trump (Video)
AP’s Jonathan Lemire, former federal prosecutor Berit Berger, Fordham University professor Christina Greer, former Deputy Assistant Attorney General Harry Litman, and NYT’s Mike Schmidt on the first hearing to spotlight the breadth and depth of Robert Mueller’s findings, where former White House counsel John Dean compared Trump’s conduct to Nixon’s abuse of power
The New York Review of Books—June 10
The Impeachment Question
In 2018 Yale University Press brought out a new edition with comments and additional material by Philip Bobbitt, a law professor at Columbia and the University of Texas at Austin. (Black died in 2001.) . . . ” Its virtue, Bobbitt explains in his introduction to the new edition, was that it didn’t instruct readers “what to think” about the specific impeachment-related questions that were swirling around Washington, but rather “how to think”: how to derive a legal answer “from the text, history, structure, doctrine, practicality, and ethos of the Constitution.”
Hudson's Bay chairman puts together $1.3 billion offer for retailer
Hudson’s Bay said it had set up an independent board committee to evaluate the offer, which is subject to a vote by a majority of shareholders not affiliated with Baker’s bid. “If you don’t go through these processes, you are really vulnerable to a lawsuit alleging that you shoved this down their throats,” said Eric Talley, co-director of the Millstein Center for Global Markets and Corporate Ownership at Columbia Law School in New York.
Wyoming Public Radio—June 10
Report: Trump Administration Yet To Defend Any Climate-Related Rollbacks In Court
A new report from Columbia University's Sabin Center for Climate Change Law finds the Trump administration has yet to score a court victory upholding their efforts to roll back major regulations related to climate change. . . . Author of the report, Columbia University climate law fellow, Dena Adler said the report shows courts are reinforcing that federal policy can't be removed in one flick of the pen.
[Note: The Sabin Center on Climate Change Law report authored by Adler was also referenced in other media outlets including Axios, E&E News, and InsideClimate News.]
Opinion analysis: Justices reject government right to challenge patents in administrative process
By Ronald Mann
Yesterday’s decision in Return Mail Inc. v. U.S. Postal Service offers the justices’ answer to yet another of the drafting weaknesses of the 2011 patent-reform statute commonly known as the AIA (officially christened the Leahy-Smith America Invents Act).
Female Founders Call Tampon Tax Unconstitutional And Put A Deadline On Reform
The two female-led organizations have launched “Tax Free. Period.”, the first ever national legal, advocacy and messaging campaign aimed at eliminating said tax in all 35 remaining US states. . . . The leaders behind this campaign hope to spark a broader movement and have engaged key experts in the field such as Katherine Franke, Columbia Law Professor and Director of the Center for Gender and Sexuality Law . . .
35 States in the U.S. Still Charge Women a Tampon Tax
Finally, there will be a legal hackathon at Columbia Law School in the fall to “bring together top legal minds in constitutional, taxation, and sex discrimination law” to devise a legal strategy to get rid of the tampon tax in the 35 states that still have it.
[Note: This article also appeared on Yahoo Finance.]
Black Law Students at Columbia Call for Firing of Central Park 5 Prosecutor
Columbia Law School’s Black Law Students Association is calling for the school to dismiss a lecturer who was a key prosecutor in the so-called Central Park Five case—now the subject of a high-profile Netflix miniseries—and to offer more inclusive teaching. In a letter issued Tuesday, the organization requests that the law school fire lecturer Elizabeth Lederer, who co-prosecuted the infamous case in which five young minorities were convicted of a 1989 rape they didn’t commit.
[Note: Upon the release of the Netflix miniseries When They See Us, which chronicled events related to the assault and rape of a Central Park jogger in 1989, Columbia Law lecturer Elizabeth Lederer became the subject of intense media coverage around the world. She was referenced in numerous media outlets including NBC News, The New York Times, Vulture, and The Washington Post.]
The New York Times—June 12
With One Move, New York Cuts Sprint and T-Mobile Down to Size
By Tim Wu
This week, nine states and the District of Columbia, led by New York’s attorney general, Letitia James, filed suit in federal court in New York to block the merger. With this move, the states have jumped the gun on the federal government, which has yet to fully approve or reject the deal. And if the states win in court, as they seem likely to, the merger is dead. Inadvertently, this corporate blunder has created a new role for the states in merger review: acting as a backstop in cases of gross dereliction of duty by the federal government.
Inside Climate News—June 12
3 Republican Former EPA Heads Rebuke Trump EPA on Climate Policy & Science
The EPA under Trump has worked to roll back numerous environmental and climate-related regulations. In 2017 and 2018, the administration undertook at least 94 actions to undermine or reverse climate protections, according to Columbia University's Sabin Center for Climate Change Law.
The New York Times—June 12
Elizabeth Lederer, Prosecutor of Central Park Five, Resigns From Columbia Law
Elizabeth Lederer, the lead prosecutor in the Central Park jogger case, which resulted in the wrongful conviction of five black and Latino boys, said on Wednesday that she would not return as a lecturer at Columbia Law School. . . . In an email to Columbia Law students on Wednesday evening, Gillian Lester, the dean of the school, said Ms. Lederer decided not to seek reappointment as a lecturer, writing that the mini-series had “reignited a painful — and vital — national conversation about race, identity, and criminal justice.”
[Note: News of Lederer’s resignation was referenced in numerous media outlets including BBC News, CNN, NBC News, The New York Times, Time, and The Washington Post.]
The Atlantic—June 13
A Nature Writer for the Anthropocene
By Jedediah Purdy
Robert Macfarlane has spent the past two decades becoming a nature writer for the Anthropocene. His new book, Underland, culminates a first-half-of-life project in which he has worked to understand the mind’s encounter with nature. What do we look for when we go out to meet landscapes and nonhuman things? What do we find, and how does it change us?
The Christian Post—June 13
Religious freedom concerns raised as trial over aid to illegal immigrants ends in hung jury
Law professors who specialize in religious freedom law — led by Columbia University’s Katherine Franke — filed an amicus brief in support of Warren explaining why the court should have considered Warren’s motion to dismiss the case under the Religious Freedom Restoration Act.
WCPT | Joan Esposito: Live, Local & Progressive—June 13
(1:01) We’re also going to talk to Carol Sanger, who literally wrote the book on abortion, a 2017 book, called About Abortion. She is a Columbia University law professor.
Why We Shouldn’t Be Scrutinizing Seth Rogen’s Ceramics
In a September 2018 op-ed in the New York Times about a recent decline of hobbies, author and Columbia University law professor Tim Wu suggested that the daunting nature of hobbies is pushing people to sink their time into social media and streaming TV and movies instead. And as a result, they’re missing out on the virtues of leisure activities; they can make us happier, calm, empathetic, and more creative.
E&E News—June 14
Chevron gets fresh D.C. Circuit airing — sort of
A complex Clean Air Act fight nearly 40 years old landed before a pair of federal judges yesterday, but the stakes were decidedly low. In an event Columbia Law School professor Gillian Metzger dubbed "the ultimate administrative law geek-out," lawyers and judges converged on the U.S. Court of Appeals for the District of Columbia Circuit to reimagine oral arguments in the case that spawned the Chevron deference — a doctrine now central to agency litigation.
Investors are core to bridging the audit gap
ICAEW cites a paper it commissioned last year from US academic John Coffee, Why do Auditors Fail? What Might Work? What Won’t?”, to back up its ideas. “The paper describes auditors as ‘gatekeepers’ who pledge reputational capital that they have developed over many decades and many clients to give credibility to their opinions,” it says.
New Statesman America—June 14
Kellyanne Conway’s repeated Hatch Act violations are only the beginning
The OSC doesn’t have the power to prosecute members of the executive branch – it is “an investigative and recommendatory body,” Richard Briffault, a law professor at Columbia University in New York who specialises in legislation and government ethics, tells me. “They don’t have the power to impose penalties.”
How a liberal think tank is driving 2020 Dems to crack down on Big Tech
Tim Wu, a Columbia Law School professor and Open Markets advisory board member, acknowledged the group's combative nature, but credited it with expanding the idea of what’s considered reasonable for government to do in response to Silicon Valley’s power. “They’re angry, but they also understand antitrust law," he said. . . . Lina Khan, an Open Markets veteran, has drawn considerable attention as the author of an influential 2017 academic paper arguing that regulators are ignoring the threat posed by Amazon and should look past traditional price concerns when establishing if a company is a monopoly.
The New Yorker—June 15
The Right to a Stable Climate Is the Constitutional Question of the Twenty-first Century
“The central issue the Ninth Circuit is grappling with is what is the role of the courts vis a vis Congress and the executive branch,” Michael Gerrard, a professor at Columbia Law School and the faculty director of the Sabin Center for Climate Change Law, wrote me in an e-mail. “If a building is on fire and all the firefighters are off at a convention, can the neighbors break into the firehouse and run the firetrucks themselves? Or do they have to wait for permission, while the building burns down? Likewise, if the planet is on fire and Congress and the Administration are checked out, can the courts act on their own?”
Neue Ideen gegen die Steuervermeidung der großen Digitalkonzerne (German)
The internationally renowned German legal scholar Katharina Pistor has written a book on a hot topic that certainly has the potential to trigger a great debate. "The Code of Capital", German: the Rules of Capital, is subtitled "How the Law Produces Wealth and Inequality". . . . In fact, Pistor, a professor at Columbia University, offers new perspectives to those who say or believe sentences like, "Free markets and property rights are the foundation for the prosperity of capitalism." Pistor holds the opposite: free markets are nothing without a legal framework that precisely defines the (pre-)rights and obligations of all parties involved and names a state that enforces these rights.
A Georgia Case Helped The U.S. Supreme Court Clarify Roe v. Wade (Article and audio)
On the same day that Roe v. Wade legalized abortion, Doe v. Bolton said how far states could go to regulate it. “What it did was show how Roe was supposed to be applied,” said Carol Sanger, who studies abortion regulation at Columbia Law School. She says Doe had immediate practical consequences. For one, women no longer needed a reason to request an abortion. “It said you really don’t have to have grounds. You can simply find a doctor who does abortions, tell them you have an unwanted pregnancy and you would like to terminate,” Sanger explained.
Stories About Whiteness?
In support of Mark’s claim, I’d like to call to the attention of Balkinization’s readers a superb, quantitatively cutting-edge (machine learning!) paper that essentially proves Mark’s point on this -- and, incidentally, that liberals and progressives tend to do the opposite -- by Columbia Law School’s David Pozen, Eric Talley, and Julian Nyarko, forthcoming in the Cornell Law Review (“A Computational Analysis of Constitutional Polarization”)
Business Insider—June 18
Trump's playbook for victory in 2020 is reportedly an audacious attempt to turn his biggest weakness into a strength
Berit Berger, a former federal prosecutor and the executive director of Columbia Law School's Center for the Advancement of Public Integrity told polling and analysis website FiveThirtyEight that they could prove damaging. Berger said: "We don't know what they'll amount to yet, but these investigations shouldn't be dismissed as frivolous — if federal prosecutors have opened an investigation, that means there are serious red flags."
Financial Times—June 18
Should company lawyers do more on climate risk?
At least 1,300 climate cases have been filed worldwide since 1986, mostly in the US, according to the Sabin Center for Climate Change Law at Columbia University in New York and other groups that track such litigation. The nature of these cases differs widely, as do their targets, but some of the most eye-catching are part of a new wave of climate liability lawsuits aimed at fossil fuel companies that legal scholars think have a larger chance of succeeding than past efforts.
[Note: The Sabin Center for Climate Change Law’s “Climate Change Litigation Databases” was also referenced in media outlets including CBC News.]
Jefferson Public Radio—June 18
Both Sides Find Signs Of Victory In Gresham Bakery Supreme Court Decision
Legal experts say the court reached a decision that gives partial victories to both conservative advocates of religious freedom and left-leaning defenders of LGBTQ civil rights. “The fact that the court sent the Klein case back signals that the Supreme Court is not really ready to issue a broad re-thinking of First Amendment religious liberty rights,” said Katherine Franke, Director of the Center for Gender and Sexuality Law at Columbia University.
The New York Times—June 18
New York to Approve One of the World’s Most Ambitious Climate Plans
While New York City recently passed a law requiring its biggest skyscrapers to become more energy efficient, the new law could mean retrofitting thousands of buildings statewide. For building owners to just comply with the city’s law, the estimated cost exceeded $4 billion. “It’s going to be a major lift,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University.
The New York Times—June 18
A Muslim Family Sought Help at the Belgian Embassy in Beijing. The Police Dragged Them Out.
The Belgian Embassy’s handling of the case has come under criticism. Under international law, governments are obliged not to send people to countries where they are at substantial risk of being tortured, said Sarah H. Cleveland, a professor of law at Columbia University. Given that Ms. Abula and her children are Uighur, it was incumbent upon the Belgian Embassy to assess that risk, she said.
[Note: This article appeared in numerous media outlets worldwide.]
Capital Alberto—June 19
Efeito Kronos no corporate venture bancário (Portuguese)
Like Kronos in mythological legend, companies that today have relevant (incumbent) market share have the incentive to acquire / "consume" new innovative (incoming) players before they can grow to the point of becoming competitive threats - Tim Wu christened this incentive Kronos effect.
City & State New York—June 19
How could Georgia’s 'heartbeat' bill apply to New York?
The new law in Georgia reclassifies fetuses with a detectable heartbeat as “natural persons” under Georgia law. . . . Columbia Law professor Carol Sanger said that prosecution would be unlikely because there are no passages in the bill that explicitly reference what happens if a woman goes out of state to get an abortion.
Open Invention Network, the Linux-based patent non-aggression community, exceeds 3,000 licensees
Eben Moglen, Chairman of the Software Freedom Law Center (SFLC) agrees. . . . “At this 3,000-licensee milestone, OIN represents one of the most important institutional achievements in the digital economy. Without the leadership Keith Bergelt has brought to OIN, this profoundly important social result could not have happened. Everyone who collaborates on the making and use of free and open source software, from secondary school students to multinational corporations, is freer to learn, innovate and succeed because of Keith and OIN.”
What Are the Rules of Soccer?
By David Pozen
Is the added “cleanliness” worth it when goalkeepers try to inch off the line? At least when it comes to putting speed cameras on the streets, there may be benefits to public safety and public coffers. Yet most people nevertheless hate speed cameras, for good reasons, and the use of VAR to close the gap between the paper rules and real rules of penalty kicks strikes me as even harder to justify. Simply asserting that “rules are rules” obscures much and resolves little.
New Haven Register—June 20
An unconscionable act on lead poisoning standards: Op-Ed
By Emily A. Benfer
The Harp administration recently admitted that it covertly amended scientifically supported city policy on lead poisoning. Now, children must develop lead poisoning at four times the national standard before any meaningful intervention is required. The reason? To save a few dollars in the city’s budget. To be clear, this action will result in permanent brain damage for our children and cost the city billions in lost lifetime earnings, special education, health care and other completely avoidable expenses to taxpayers.
Project Syndicate—June 20
Facebook’s Libra Must Be Stopped
By Katharina Pistor
Facebook is barreling ahead as if Libra was just another private enterprise. But like many other financial intermediaries before it, the company is promising something that it cannot possibly deliver on its own: the protection of the currency’s value. Libra, we are told, will be pegged to a basket of currencies (fiat money issued by governments), and convertible on demand and at any cost. But this guarantee rests on an illusion, because neither Facebook nor any other private party involved will have access to unlimited stores of the pegged currencies.
[Note: Pistor’s article appeared in numerous media outlets worldwide. Pistor’s comments were also quoted in Folha de S. Paolo, livemint, and MediaPost.]
How the EPA's climate rule rollback could reach beyond coal
Michael Gerrard of Columbia Law School tells me a lot depends on how narrowly or broadly courts rule in upholding the Trump plan, if that's what happens. He writes via email… "[I]f the courts take the occasion to opine more broadly on EPA's authority under the Clean Air Act, that could have broader impacts."
[Note: Gerrard’s comments also appeared the Axios newsletter Generate.]
Bloomberg Environment—June 21
Trump Cuts Weight of Climate Change in Environmental Reviews (1)
Court decisions require federal agencies to consider the impacts of climate change regardless of White House guidance, said Michael Gerrard, founder and director of the Sabin Center for Climate Change Law at Columbia University. “I think there’s less here than meets the eye,” Gerrard said. “This new draft guidance requires less detail than the Obama guidance, but it doesn’t alter the underlying requirement. This draft does not deny anthropogenic climate change or tell agencies to shut their eyes. That would be legally self-defeating.”
CBS News—June 21
New York approves sweeping climate plan (Video)
New York state lawmakers have approved one of the most ambitious climate change plans in the country, aiming to virtually eliminate carbon emissions by 2050 and source carbon-free electricity. Michael Gerrard, director of Sabin Center for Climate Change and a professor at Columbia University, joined CBS to discuss the details of the plan.
Gotham Gazette—June 21
Ethics Officials from Around the Globe Discuss Challenges, Strategies
“In some ways, we are all victims of corruption,” Huguette Labelle told attendees of the Global Cities III conference Thursday morning, giving opening remarks at the two-day event organized by Columbia University’s Center for the Advancement of Public Integrity. The event brings together leaders and ethics officials from major cities across the world, including New York City and Barcelona.
The New York Times—June 21
‘There Is a Stench’: Soiled Clothes and No Baths for Migrant Children at a Texas Center
“There is a stench,” said Elora Mukherjee, director of the Immigrants’ Rights Clinic at Columbia Law School, one of the lawyers who visited the facility. “The overwhelming majority of children have not bathed since they crossed the border.”
[Note: Mukherjee’s eyewitness account of the conditions of the immigrant detention center in Clint, Texas, became the subject of intense media coverage upon the publication of this New York Times article. A special section featuring more clips in which Mukherjee appeared or was referenced is included at the end of this report.]
The New York Times—June 21
How New Rent Laws in N.Y. Help All Tenants
“For people who are very low income or even homeless, the security deposit can be a big barrier,” said Maria Foscarinis, the executive director of the National Law Center on Homelessness & Poverty.
[Note: Foscarinis is a lecturer at the Law School. This article also appeared on Columbia Business First.]
For Women of Color on Medicaid, Health-Care Options More Likely to Include Catholic Hospitals
Nationwide, 53 percent of births at Catholic hospitals are to women of color, versus 49 percent of births at non-Catholic hospitals, a study by Columbia Law School found last year. The report examined data from 33 states and Puerto Rico; in 19 of those states, including Illinois, women of color were more likely to give birth in Catholic hospitals than white women.
The Washington Post—June 21
White House tells agencies they no longer have to weigh a project’s long-term climate impacts
The White House proposed Friday that federal agencies no longer have to take a project’s long-term climate impacts into account when assessing how they will affect the environment, reversing a major Obama administration policy. . . . “This proposed replacement for the 2016 guidance is softer and may allow for less quantification, but it doesn’t change the underlying statutory requirement” to analyze how government projects are affecting the climate, said Michael B. Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School.
[Note: This article appeared in numerous media outlets nationwide.]
Take Care Blog—June 22
John Roberts the Institutionalist?
By Gillian Metzger
In short, in Gundy Chief Justice Roberts joined an extreme opinion that threatens to disrupt a basic and longstanding feature of modern government, unnecessarily undercuts a co-equal branch’s ability to function, and clearly advances a strongly partisan anti-regulatory agenda.
New York Daily News—June 23
The heat is on, New York: A new climate law is a major landmark, but now requires work and sacrifice
By Michael B. Gerrard
New York is boldly going where no state has gone before. The goal can be accomplished, mostly with existing technology, but it will take a great deal of sweat and treasure (no one knows just how much), as well as a continuation of the political will that brought us to this point.
The Crime Report—June 24
Stop and Fix? How the ‘High-Crime Area’ Defense Has Licensed Bad Policing
In a striking new article Professors Ben Grunwald (Duke University School of Law) and Jeffrey Fagan (Columbia University) expertly mine the rich data supplied by New York Police Department (NYPD) officers’ post-stop reports, and challenge—on its own terms—the Court’s assertion that a location in a high crime area adds predictive justification to a cop’s decision to stop and frisk.
Crain’s New York Business—June 25
Albany reform looking like smoke and mirrors
By Richard Briffault
Public campaign financing has the potential to break the hold of megadonors and special interest groups on state politics, to open up the political process to new candidates not beholden to the donor class, and to energize grassroots political participation. But as is often the case in Albany, the appearance of progressive change can be deceiving. Despite the budget bill's bold language, the governor and Legislature did not actually create a public-funding system.
The New Republic—June 25
The United States’ Debt to Immigrants
Mehta also builds on a Washington Post op-ed by Columbia environmental law professor Michael Gerrard, who contends that the United States and other nations disproportionately responsible for carbon emissions should accept climate change refugees as a form of compensation to them and a form of justice.
Psychology Today—June 25
Understanding Intersectional Identities
This term was first coined in 1989 by Kimberlé Crenshaw, a law professor and social theorist, civil rights activist, and a leading scholar of critical race theory. Crenshaw became widely known when she gave a TED talk on being female and black, and how these identities of gender and race can work against us. Since then, intersectionality is considered by activists and therapists like me to be crucial to social equity work.
[Note: Crenshaw and her work on intersectionality were also referenced in media outlets including The Guardian (Nigeria), NRC Handelsblad, The Toronto Star, VICE, and Words Without Borders.]
USA Today—June 25
Some US women are taking reproductive matters into their own hands: They're ordering abortion pills by mail
"You have to figure out how to pay for it online," reproductive law expert Carol Sanger said. "There are details that might make it not as smooth as you think it is. And then where are you going to have it delivered? You have to figure out where are you going to have it sent. Might your husband open it?"
USA Today | Opinion—June 25
The Trump Justice Department has turned 'religious liberty' into a license to discriminate
Columbia University law professor Katherine Franke, who assisted with Warren’s defense, cut to the heart of the matter: The Justice Department is interested in “only protecting the religious liberty rights of those who are religious conservatives.”
The Washington Post—June 25
In seeking reparations for slavery, it’s time to speak up. And it’s okay to be angry.
Kimberle Crenshaw, a professor of law at UCLA and Columbia University, told me that it’s important to remember that “slavery was not just the theft of labor but the theft of black women’s sexual autonomy.” “It was the theft of family, theft of the right to motherhood, theft of an image of oneself in order to justify all of the abuse,” she said.
The Daily Beast—June 26
John Roberts Isn’t the Conservative You Thought He Was
“This case has to be understood against the background of conservatives’ attack on the administrative state,” said Columbia Law School Prof. Gillian Metzger when the case was argued in March. “The attack on Auer deference is to make it harder for agencies to develop coherent, well-functioning regulatory regimes.”
[Note: This article also appeared on Yahoo News.]
National Geographic—June 26
Kids suing governments about climate: It's a global trend
Michael Burger, executive director and CEO of the Sabin Center for Climate Change Law at Columbia University Law School in New York, says the swelling wave of lawsuits should surprise no one, given the lumbering pace of government action. At the moment, the center is tracking 1,039 cases ongoing in the United States and 283 in other countries. The majority of them, unlike the youth cases, involve enforcing existing environmental regulations and law.
Symposium: Shadow boxing with the administrative state
By Thomas Merrill
An important subcurrent in today’s Supreme Court concerns the legitimacy of the administrative state. The court’s conservative wing wants to take down the administrative state a notch or two. The liberal wing is anxious to shore it up.
Just Security—June 27
Assange’s Indictment: A Threat to Everyone
The discussion about the problems posed by the Espionage Act has been going on for nearly 50 years. Harold Edgar and Benno Schmidt, Jr. had warned about serious problems posed by the law in a 1973 Columbia Law Review article titled “The Espionage Statutes and Publication of Defense Information.”
Symposium: In “Gundy II,” Auer survives by a vote of 4.6 to 4.4
Why, then, does the Auer debate break out along familiar ideological lines? The answer can only be because the justices perceive more at stake than deference. As Gillian Metzger has pointed out, the defining feature of the current period is “anti-administrativism.” Agency power is suspect per se.
Bloomberg Law | Daily Labor Report—June 28
Stonewall at 50: Uprising Sparked Growth of LGBT Protections
“We’ve made enormous progress as a society in recognizing LGBT people as full members of our communities, both inside and outside of workplaces,” Suzanne Goldberg, a law professor at Columbia University, said. “The fact that we have serious deficits in anti-discrimination protections is important to be aware of and address, but it does not take away from the tremendous progress we’ve seen in the past several decades,” said Goldberg, who directs Columbia’s Sexuality and Gender Law Clinic and co-directs its Center for Gender & Sexuality Law.
The Seattle Times—June 28
Facebook’s Libra could set table for the next financial catastrophe
As Columbia University professor Katharina Pistor noted, “Facebook is barreling ahead as if Libra was just another private enterprise. But like many other financial intermediaries before it, the company is promising something that it cannot possibly deliver on its own: the protection of the currency’s value.”
The Washington Post—June 28
There’s a big new headache for the Green New Deal
It might seem to some that measures to protect the environment should prevail over trade interests. However, under the postwar global order, open commercial flows are prioritized above other values. As scholars such as Quinn Slobodian, Samuel Moyn and Katharina Pistor have argued in recent books, the order could have made equity or solidarity the preeminent value. Instead, it prioritized trade and money — and prioritized them even more after national social protections were rolled back in the 1990s.
Profit durch Systemlücken: Steuervermeidung: Es herrscht Streit ums Zugriffsrecht (German)
In Germany, the principle was that the valid tax regime would be based on where a company had its real headquarters, before the European Court of Justice interpreted freedom of movement for legal entities to the extent that companies can freely choose their tax regime today, regardless of where they produce or sell. . . . "That's just like being able to choose any country you want to be a citizen of, regardless of where you live, as a private person," writes Columbia University's renowned lawyer Katharina Pistor in her book Coding Capital.
KCRW | To the Point—June 29
Trump reverses Obama on climate change (Audio and story)
The rollback was announced by Andrew Wheeler, Trump’s EPA chief, who is a former coal industry lobbyist. He says it’s a much-needed boost for so-called “clean coal.” Michael Gerrard of the Sabin Center for Climate Change says that’s not realistic. “Somebody who is thinking about, do they want to invest a lot of money in making a coal-fueled power plant a little less dirty? Are they going to invest a couple hundred million dollars to do that, if they know that in a year and a half, we may have another president who is going to work very hard to shut it down?”
Chief Justice Roberts Is Dead Wrong About Auer Deference
As Columbia Law School Professor Philip Hamburger has argued (in both his scholarship and an amicus curiae brief in Kisor), Auer deference first violates due process because it denies one of the litigants before the court a fair hearing. Second, whenever a judge defers to an agency’s interpretation, he or she fails to live up to that judge’s Article III duty to provide independent judgment.
*Special report on media coverage of Elora Mukherjee discussing the conditions she observed at a federal migrant detention facility Clint, Texas
Mukherjee was referenced or quoted in over 100 articles. A selection of the media coverage appears below.
The Atlantic—June 25
The Washington Post
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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.