Faculty in the News
Columbia Law School Clip Report, July 1–15, 2019
Trump, Congress and Presidential Alliance Powers
By Mira Rapp-Hooper and Matthew Waxman
In a new Washington Quarterly article titled “Presidential Alliance Powers,” we wrestle with a subject that has become familiar in these pages: the chief executive’s ability to dismantle American alliances. We argue that although many Trump foreign policy critics worry that his disdain for American alliances such as NATO might lead him to withdraw the United States, the more subtle, probable and already-manifest danger is that he weakens U.S. alliances from within.
Justices call for reargument in dispute about Oklahoma prosecutions of Native Americans
By Ronald Mann
Despite hearing oral argument all the way back in late November, and receiving a round of supplemental briefing by January, the justices left for the summer without offering a resolution of Carpenter v. Murphy. Rather, we are left with a bare notation that the case has been “restored to the calendar for reargument.”
E&E News | Climate Wire—July 2
Climate change looms large in endangered species litigation
Since the early 2000s, climate change has cropped up in more than 100 ESA lawsuits, according to an analysis by the Sabin Center for Climate Change Law at Columbia University.
E&E News | Greenwire—July 2
Action-packed term fails to curb 'administrative state'
Conservative lawyers had hoped the high court would seize several opportunities to rein in the network of unelected but powerful federal agency officials they've dubbed the "administrative state." . . . "But what's really interesting is it's still falling short," Columbia Law School professor Gillian Metzger said at an American Constitution Society event last week. "The victories that conservatives really expected to get this term did not come through."
Harvard Business Review—July 2
Do Your Diversity Efforts Reflect the Experiences of Women of Color?
Corporate leaders need to focus on diversity and inclusion effort that take an intersectional approach, as coined by academic Kimberlé Crenshaw, to identify barriers that women of color face, due to the impact of their race and gender.
[Note: Crenshaw and her work on intersectionality were also referenced in media outlets including DiversityInc and them.]
The Independent (East Hampton, NY)—July 2
Schumer Slams Local Internet Providers
“The cable and phone companies have routinely deceived the public when it comes to the broadband speeds they promise and what they deliver. And unfortunately the FCC has been complicit in this deception for many years. Senator Schumer is right to demand that the FCC stop working for industry and start doing its job,” said Tim Wu, professor at Columbia Law School and “Net Neutrality” pioneer.
Linux Journal—July 2
Online Censorship Is Coming--Here's How to Stop It
A powerful way to fight upload filters and their threat to freedom of speech is to create internet services that are outside this framework—specifically, those that are completely distributed. Eben Moglen, General Counsel of the Free Software Foundation for 13 years, and co-creator of the most recent versions of the GNU GPL, understood this ten years ago.
The Atlantic—July 3
An Astonishing Government Report on Conditions at the Border
Elora Mukherjee was one of the lawyers who visited the site at Clint. As the director of the Immigrants’ Rights Clinic at Columbia Law School, Mukherjee has been working with detained migrant children for more than a decade. There were hungry children who did not have enough to eat, she told me. Children had urinated on their pants, and weren’t offered a change of clothes. Some children had vomited on their clothing. It was a health risk, she said. Children reported seeing guards pulling other children from cages by force.
[Note: Amid news concerning the conditions of federal migrant detention centers and her testimony before the House Committee on Oversight and Reform, Mukherjee was quoted and referenced in numerous articles worldwide, including ABC News, Agence France-Presse, Agencia EFE, BBC Mundo, BBC News Brasil, CGTN, CNN, CNN’s Reliable Sources, Courthouse News Service, Democracy Now, El Diario la Prensa, The Guardian, The Hill, Law.com, MSNBC’S AM Joy, New York Magazine, The New York Times, Newsweek, Newsy, NPR, El Tiempo Latino, and The Times of India.]
MSNBC | The Beat with Ari Melber—July 3
House Dems force issue, sue Trump Admin. (Transcript)
YASMIN VOSSOUGHIAN, MSNBC HOST: Joining me now is Berit Berger . . . What do you make of this sudden reversal of the census?
BERIT BERGER, FORMER FEDERAL PROSECUTOR: . . . where we are now is back where we were when the Supreme Court issued its decision that they have to come back with a new rationale for why they’re going to want this citizenship question. And if they can’t come back with a rationale that passes muster, they’re going to be in the same position that they are now.
[Note: Berger is the executive director of the Center for the Advancement of Public Integrity.]
The New York Times—July 3
Why the ‘Bridgegate’ Scandal Could Backfire on Prosecutors
“What’s always marked this case from being a little different than standard corruption cases was that this wasn’t about personal gain, or at least personal gain in a monetary sense,” said Daniel C. Richman, a professor at Columbia Law School and a former federal prosecutor. “If money isn’t nakedly involved, you end up having more complex and contestable liability theories.”
The Wall Street Journal—July 3
The Founders Who Opposed the Constitution
Today, “the way the scholars are writing about it, the cases the courts are granting—they’re reconsidering everything.” One of the scholars he has in mind is Columbia Law School’s Philip Hamburger, who likens the power of administrative agencies to the “royal prerogatives” of 17th-century English monarchs, which provoked the American Revolution.
Russia is strangely calm about Facebook’s cryptocurrency
Compared to the US and Europe, Russia is less concerned about protecting its economy, observed Katharina Pistor, director for the center on global legal transformation at Columbia University. It will be difficult for any government to exercise authority over the Libra Association, the Swiss nonprofit Facebook has established to oversee the Libra network and reserves, she said. “The real concern for me is the scale,” said Pistor.
WIRED Magazine—July 5
TIM WU EXPLAINS WHY HE THINKS FACEBOOK SHOULD BE BROKEN UP
Last week, at the Aspen Ideas Festival, I interviewed Tim Wu, a professor at Columbia Law School and author of a new book called The Curse of Bigness. We talked about antitrust and innovation, and he addressed arguments on the topic made by Facebook. An edited transcript follows.
[Note: Amid news concerning the application of antitrust laws to companies like Amazon and Facebook and his scheduled testimony before the House antitrust subcommittee, Wu was also quoted, cited, and mentioned in media outlets including the Associated Press, Bloomberg Government, Boing Boing, CNBC, The Hill, MarketWatch, Multichannel News, The New York Times, TechCrunch, and The Wall Street Journal.]
Legal action on climate change is a rising global trend
Michael Burger is the executive director of the Sabin Center for Climate Change Law. He said that litigation has been “absolutely essential” to advancing climate change solutions in the United States. “Judicial decisions around the world show that many courts have the authority, and the willingness, to hold governments to account for climate change,” said Burger. “Similar litigation all over the world will continue to push governments and corporations to address the most pressing environmental challenge of our times.”
ABC News—July 7
After World Cup win, US women pivot to gender discrimination lawsuit
"The U.S. women's soccer team does not need to be the best in the world in order to earn equal pay. The point of non-discrimination law is that employees doing similar work should be paid equally," Suzanne B. Goldberg, director of the Center for Gender & Sexuality Law at the Columbia Law School, told ABC News.
[Note: This article appeared in numerous media outlets nationwide. Goldberg’s comment also appeared in an article on NBC Sports Washington.]
The Hill—July 7
The old 'state rights' and the new state power
As Professor Jessica Bulman-Pozen of Columbia Law School writes, “From healthcare to marijuana to climate change, negotiations among federal and state executive branch actors increasingly set national policy in the United States. In an age of partisan polarization, congressional gridlock, and state initiative, executive federalism has come to America.”
WCBS News Radio 880—July 7
US Women's Team Wins World Cup, But Equal Pay Fight Continues (Article and audio)
Suzanne Goldberg, of the Columbia Law School’s Center for Gender & Sexuality Law, says there’s a significant disparity between the women’s and men’s teams when it comes to pay, as well as things like travel, equipment and training facilities. . . . Even though the women’s success has shined a light on this, Goldberg says they should have to win World Cups to make their case. “The women’s team does not need to outperform the men’s team to be entitled to equal pay for their equal work,” Goldberg said.
Fact-checking my energy crystal ball in 2019
President Trump’s regulatory rollback wears on, albeit unevenly and slowly. Columbia Law School issued a report recently documenting progress on this. It concludes the administration has “achieved far less than meets the eye, due to the statutory safeguards for federal agency rule-making and judicial intervention to enforce those safeguards.”
The New York Times—July 8
It’s New York vs. California in a New Climate Race. Who Will Win?
“California’s climate change law got into a lot of trouble with the environmental justice community,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. But, he noted, there were signs that New York is trying to learn from that experience, as its latest climate bill tried to explicitly address concerns about equity.
[Note: This article also appeared in the San Francisco Chronicle.]
pv magazine—July 8
Lawyers embracing the good fight for solar power
Sabin Center for Climate Change Law at Columbia University and the law firm Arnold & Porter have launched the Renewable Energy Legal Defense Initiative, whose purpose is to provide pro bono legal representation to community groups and others who want renewable energy projects that are being impeded by opposition. . . . Michael Gerrard, founder & director of the Sabin Center, noted that their team has begun recruiting lawyers – mostly in big firms, but some in smaller firms or on their own, or in nongovernmental organizations – to do the work in the variety of legal fields needed.
Bloomberg Law | Big Law Business—July 9
Kavanaugh, Roberts Hold Death Penalty Power After Bitter Term
Bernard Harcourt, another capital litigator and a Columbia law professor, said that he’s “concerned that these new frictions at the Court may break bad, at the expense of the condemned and their constitutional right to be heard without the taint or shadow of this emerging bitterness.”
Climate Liability News—July 9
Steyer Takes on Corporate Culpability for Climate Change in His Presidential Campaign
“Tom Steyer has done a great deal of good through his leadership of, and contributions to groups fighting climate change,” said Michael Gerrard, a professor of environmental and climate change law at Columbia University and chair of the faculty at Columbia’s Earth Institute. But Gerrard questioned whether a presidential run is the best use of Steyer’s time and ample resources.
Deseret News—July 9
Most states protect seniors in debt from losing their possessions. Why doesn't Utah?
Edward R. Morrison, the Charles Evans Gerber Professor of Law at Columbia Law School in New York City, wasn’t familiar with HELPS but said the nonprofit’s strategy is reasonable — for some people. “It can be a good strategy for some clients, and not for others,” Morrison said. A Utah native who specializes in bankruptcy law, Morrison said the best option for debt-saddled seniors depends on their assets, especially if they own a home that a judge could order be sold to cover debts.
MSNBC | The Last Word with Lawrence O'Donnell—July 9
Jeffrey Epstein, called ‘terrific’ by Trump, charged with sex trafficking (Video)
(05:55) LAWRENCE O’DONNELL: Leading off our discussion tonight, Berit Berger. . . . Berit, your reading of this indictment today?
BERIT BERGER: This is a stunning indictment, to say the least. . . . I think given the posture though of how this compares to the case that was prosecuted or walked away from in Florida, it makes these charges even more stunning. Because quite frankly, this is what should have happened in Florida. These are the charges that the Florida U.S. Attorney’s Office could have brought, and probably should have brought.
[Note: Amid news concerning the arrest of Jeffrey Epstein on sex trafficking charges, Berger also appeared or was quoted in MSNBC’s Hardball With Chris Matthews, MSNBC’s Velshi & Ruhle, Law360, NPR, and Vox.]
New Yorker—July 9
The Unbelievable Hypocrisy of Trump’s New “Unalienable Rights” Panel
Columbia University’s Human Rights Law Review runs the “Trump Human Rights Tracker” with regular updates on the Administration’s actions. “It is difficult to keep up with all that the new administration is doing that threatens human rights,” the Web site begins.
El País—July 9
Crypotcurrencies: Libra (Spanish)
Since its announcement, numerous voices have emerged warning of the systemic risks posed by this operation and deriving from an exceptional concentration of power, the social and financial networks, as well as the absence of an external authority to regulate its actions and against the to be accountable. . . . For Katharina Pistor, one can imagine a scenario of great default and wonders what would happen if a payment system of 2,600 million users fell, who would rescue it?
The Washington Post—July 9
Trump’s base is not enough, and his own advisers know it
Trump’s climate and environmental agenda showcases some of Trumpism’s worst qualities: the anti-regulatory, science-denying GOP orthodoxy; the lies about bringing coal roaring back; the “America First” disdain for international engagement to solve global problems. Indeed, as Jedediah Purdy has noted, it also denotes an amoral “politics of grabbing what you can,” a central tenet of Trumpism.
[Note: This article and Purdy’s tweet were also quoted in RawStory.]
New York Law Journal—July 10
New Climate Law Will Reshape NY’s Key Sectors
By Michael B. Gerrard and Edward McTiernan
Deep changes in the way electricity is generated, people and goods move around, and buildings are erected and renovated in New York will be required by the Climate Leadership and Community Protection Act (CLCPA), which both houses of the state Legislature have passed and Governor Andrew Cuomo has promised to sign.
The Globe and Mail—July 10
Why stock-picking skills do, in fact, exist
In the same vein, Joshua Mitts from Columbia Law School found that pseudonymous attacks on companies are followed by stock-price declines and sharp reversals. He identified over $20.1-billion of mispricing in U.S. markets and showed that “pseudonymous authors exploit the perception that they are trustworthy, only to switch identities after losing credibility with the market.”
Dems Want To Declare A Climate Emergency. Don’t Worry About The Right Co-Opting It.
“The Trump administration doesn’t seem to think it needs any justification at all for treating people harshly,” said Michael Gerrard, director of Columbia Law School’s Sabin Center for Climate Change Law. “So I don’t know that this kind of climate declaration would make it easier for them to treat refugees poorly.”
[Note: This article also appeared on Yahoo News.]
What’s Wrong With Unalienable Rights?
By Jayne Huckerby, Sarah Knuckey, and Margaret Satterthwaite
Launching the commission on Monday, Pompeo said that it would undertake “a review of the role of human rights in American foreign policy.” This is overdue. The traditional U.S. approach has often been marked by hypocrisy. . . . But there is every reason to doubt that this hypocrisy will change under Pompeo.
The Daily Beast—July 11
Alex Acosta’s Jeffrey Epstein Excuses Are Nonsensical and Self-Serving
By Mimi Rocah, Jennifer Rodgers, and Berit Berger
When Acosta’s statements are put up against the facts of this case, they are revealed as the self-serving and often nonsensical excuses of someone who utterly failed to do what he swore to do as U.S. attorney: uphold justice. Congress should now hold a hearing at which Acosta testifies under oath about these matters, so that the victims and all Americans can get answers about why Acosta gave Jeffrey Epstein special treatment.
[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).]
CNN | Fareed Zakaria GPS—July 12
On GPS: A victory for LGBT rights in India (Video)
Lawyers Menaka Guruswamy and Arundhati Katju tell Fareed about how they overturned a colonial era sodomy law and decriminalized gay sex in India.
[Note: Guruswamy, BR Ambedkar Research Scholar and a lecturer at Columbia Law, and Katju ’17 LL.M., a current J.S.D. student, were the prime architects of a successful multi-year advocacy campaign to overturn Section 377 in India.]
Libra Sparks Bipartisan Angst, But What Can Regulators Do?
Katharina Pistor, the director of Columbia Law School’s Center on Global Legal Transformation, said this is an issue policymakers around the world are facing with Libra. There are existing legal frameworks for regulating financial activity, but the challenge will be figuring out whether, how and where they should be applied when it comes to Libra and its various facets, according to Pistor, who has echoed calls for governments in the U.S. and elsewhere to ground the project before it takes off.
El Comercio—July 12
El imperio de la ley, el orden y las normas; por Marco Kamiya* (Spanish)
Why aren’t property rights enough? Katharina Pistor, professor at Columbia University, offers an explanation in her study "The code of capital" ("The Code of Capital", Princeton University Press, 2019). Pistor explains that the laws are not abstract. . . . To implement rules that grant property rights a range of resources is needed, and it is the lawyers who ultimately interpret and create the regulations that allow the financial usufruct of land, a building, a house and a company. That set of laws and regulations is part of the great system that is 'the rule of law'.
The New York Times—July 12
22 States Considered Eliminating the ‘Tampon Tax’ This Year. Here’s What Happened.
But the dearth of action on the tax in most states frustrated proponents of “menstrual equity,” a concept that refers to equal access to information and period products. They say they are now exploring legal strategies to challenge the tax, and have invited experts to discuss the tactics at a conference this fall at Columbia Law School. The director of the school’s Center for Gender and Sexuality Law, Katherine Franke, said she believes the courts will agree that the tax is an unfair penalty on women. . . . “What this case really does is highlight a day-to-day way in which women experience discrimination in one of their most basic bodily functions,” she said.
Jeffrey Epstein: rico, bonito e criminoso (Portuguese)
The case may escalate into more accusations, including child pornography: while searching its mansion in New York (according to brokers, the largest in Manhattan), police found CDs labeled "naked girl pictures." "This time it is unlikely that he will be able to avoid a heavy sentence," said Columbia University law professor John Coffee.
Remembering the Bombardment of Greytown
By Matthew Waxman
On this date in 1854, the U.S. Navy bombarded and torched the town of Greytown, in present-day Nicaragua. The event gave rise to a federal court opinion by Justice Samuel Nelson favored by modern-day lawyers who believe that the president wields vast unilateral power to use military force. The story behind the case reveals much more about how presidential naval powers, as well as congressional checks, operated in the mid-19th century.
What we can learn from the revolutionary passport that helped 1920s refugees
A group of academics and experts has launched a similar effort to promote an international system that protects refugees and other migrants. . . . Michael Doyle, a University of Columbia professor who helped write it, calls it “realistic utopia.” “It takes the world somewhat as it is,” he said. “This is not a treaty for open borders.”
Trump the storyteller: His gift for narrative is why he may win again
Bernard Harcourt, a professor of law and political science at Columbia Law School, explained to me in a recent phone conversation that from the perspective of Trump supporters, "power is being transferred away from white males."
This is the language of "white genocide," which is commonly but not exclusively used by the new right. This fear is what the American new right really wants to emphasize and orient all of its politics around....
Party of relentless bad faith: How Republican lies and hypocrisy hit an all-time high
Republicans naturally focus on the ideological and symbolic side, while Democrats focus on operational specifics, which is a key component of Matt Grossmann and David A. Hopkins' book "Asymmetric Politics" (Salon review here.) The lack of symmetry between Democrats and Republicans is also reflected in clashes over constitutional norms, producing what Joseph Fishkin and David Pozen describe as “Asymmetric Constitutional Hardball” (Salon story here.)
Al Jazeera—July 15
Is Amazon a true monopoly or does the Bezos behemoth not qualify?
In a 2017 law journal article widely cited by Amazon's critics, antitrust expert Lina Khan argued that the company poses more of a threat as it accumulates more market share. She said that "the current framework in antitrust - specifically its pegging competition to 'consumer welfare', defined as short-term price effects - is unequipped to capture the architecture of market power in the modern economy".
[Note: Khan is an academic fellow at Columbia Law School. Amid news concerning the application of antitrust law to companies like Amazon and Facebook, she was also quoted in the Associated Press and Investor Place.]
E&E News | Climate Wire—July 15
Wheeler: Obscure air provision behind Paris withdrawal
But Clean Air Act experts from both the environmental and industry sectors agree that Section 115 would not have amounted to a "constraint" on Trump's abandonment of President Obama's Paris pledge, as Wheeler seemed to suggest last week. "It's a false argument," said Michael Gerrard of Columbia Law School's Sabin Center for Climate Change Law. "It's simply untrue that 115 can be used to force compliance with the Paris targets. There's no pathway."
Off-Duty Cop Charged With Assault & False Imprisonment, NYPD Claims It's 'Confidential'
Jeffrey Fagan, a law professor at Columbia University who specializes in police accountability and criminal law, added that one possibility is that "this is just the NYPD being the NYPD, and thumbing its nose at the public's need to know." "Any other city worker in the same situation, including corrections officers and firefighters, might not enjoy the same privacy shield from their employer," he added.
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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.