Faculty in the News
Columbia Law School Clip Report, November 16–30, 2019
The Economist—November 16
Cost-benefit analyses offend against the notion that life is priceless
But societies go to great lengths to hide the grisly process of pricing life from themselves. There is a “cost to costing”, as Guido Calabresi and Philip Bobbitt put it in their classic book, “Tragic choices”.
USA Today—November 17
Impeachment: Trump abuses power by harassing, intimidating witnesses like Yovanovitch
By Mimi Rocah and Jennifer Rodgers
As a legal matter, do Trump’s actions rise to the level of witness intimidation or harassment under the federal statutes? Such a case would come down to whether a prosecutor could prove that Trump’s intent in sending the tweet was to intimidate or harass Yovanovitch and/or other witnesses in the impeachment inquiry against him.
[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).]
Medium | OneZero—November 18
The Utah Statement: Reviving Antimonopoly Traditions for the Era of Big Tech
By Tim Wu
It is important to understand that the revival of an antimonopoly tradition is a broader project than revival of the antitrust law. While that project is a key front, a broad set of policy levers and legal interventions — including in labor law, intellectual property law, corporate law, banking law and financial regulation, and campaign finance law — can be used to structure markets and check private power in the service of anti-monopoly values.
[Note: The work of Wu and Lina Khan, an academic fellow at the Law School, on the Utah Statement was also referenced in Boing Boing.]
The Boston Globe | Opinion—November 18
True, as Philip Bobbitt argues in his indispensable new edition of Charles L. Black’s classic Impeachment, it’s incorrect to think of impeachment as a purely political device. If it were, it would surely have been used much more often. The two-thirds threshold for conviction in the Senate all but requires that a successful impeachment be bipartisan.
[Note: A German translation of this article appeared in Neue Zürcher Zeitung.]
The Christian Post—November 18
Abortion, same-sex marriage are religious freedoms, Columbia Law report says
Liberal people of faith are fighting to freely practice their beliefs and practices, such as abortion and same-sex marriage, a new report from Columbia Law School’s Law, Rights, and Religion Project says.
The Guardian—November 18
Ghislaine Maxwell is at the center of the Epstein controversy, but she's in hiding
Paul Shechtman, a veteran criminal law attorney who teaches criminal procedure at Columbia University Law School, said that while pursuing a case against Maxwell probably appeals to the federal prosecutors who arrested Epstein, targeting Andrew might not. “Everything points to the fact that she is a serious subject of the southern district [of New York]’s investigation and at the same time, and for a variety of reasons, I don’t think he is,” Shechtman said.
MSNBC | Live with Stephanie Ruhle—November 18
8 witnesses testifying in public this week (Video)
At the start of a hugely consequential week for President Trump and the impeachment inquiry, Stephanie Ruhle breaks down how Democrats will try to advance their case for removing him from office with the eight public witnesses testifying over the next few days. Weighing in: Reuters’ Jeff Mason, President of Washington Strategy Group, Joel Rubin, former federal prosecutors Berit Berger and Glenn Kirschner, and former Ambassador Christopher Hill.
[Note: Berger is the executive director of the Center for the Advancement of Public Integrity.]
POLITICO | Morning Tax—November 18
The positive case
“I think the failures in Europe are not determinative, but they’re not irrelevant. These are countries that are pretty good at collecting other taxes,” Michael Graetz, a Columbia law professor, told Morning Tax. “We have a century’s worth of experience with the estate tax. Do you think it will be easier to impose a wealth tax once a year instead of once a generation? It’s not an obvious proposition to me.”
Immigrants don't flock to states that expand health benefits
“Immigrants do not uproot their lives and cross state borders to access health care, even at critical life moments, such as pregnancy and childhood development, and even if health care benefits across state lines are more comprehensive,” Jonathan Miller of the Office of the Massachusetts Attorney General in Boston and Elora Mukherjee of the Immigrants’ Rights Clinic at Columbia Law School in New York City write in an editorial accompanying the study.
[Note: This article appeared in multiple media outlets worldwide.]
The 50 Best Nonfiction Books of the Past 25 Years
Slate’s list of the definitive nonfiction books written in English in the past quarter-century includes beautifully written memoirs but also books of reportage, collections of essays, travelogues, works of cultural criticism, passionate arguments, even a compendium of household tips....
The Master Switch: The Rise and Fall of Information Empires by Tim Wu (Knopf, 2010)
Spectrum News Buffalo—November 18
Columbia Law School, Erie County Team Up To Research Vacant Properties
Conrad Johnson teaches a course at Columbia Law School that shows students how technology interphases with the job of being an attorney. The professor has teamed up with the Western New York Law Center and Erie County Clerk Michael Kearns to create a system where law students can do research about vacant and abandoned properties for Erie County municipalities. The students then receive credit for their pro bono requirements.
Folha de S.Paulo—November 18
Meritocracia não existe (Portuguese)
Ironically, we are used to seeing how legal rules exclude. Columbia University professor Katharina Pistor reports in the recent book "The Code of Capital: How Law Creates Wealth and Inequality" how contractual, property, bankruptcy, and other rules protect capital, helping to create both wealth and inequality.
Der kalte Handelskrieg – Die EU bereitet sich auf US-Strafzölle vor (German)
The US Department of Commerce concluded in an investigation that the foreign auto industry posed a security risk and recommended Trump impose tariffs or import quotas. Jagdish Bhagwati, one of the leading trade theorists in the United States, finds this line of argument absurd: "Even worse than trade policy as such is Trump's reasoning that national security is in danger." Europe must defend itself, says Bhagwati, who teaches at New York's Columbia University.
Symposium: This case is moot
By Jessica Bulman-Pozen and Adam Samaha
Just as clearly, New York State Rifle and Pistol Association v. City of New York is moot. If we attend to Article III limits on federal-court jurisdiction, the case has become more fairy tale than real. The court simply doesn’t have power to reach the merits of the petitioners’ claims, regardless of anyone’s views about guns, or golf clubs or anything else.
Al Jazeera—November 19
Hungry for change: Ivy League climate activists urge divestment
"I don't think it is physically possible for the university to achieve net-zero greenhouse gas emissions by 2025," said Michael Gerrard, the director of the Sabin Center for Climate Change Law at Columbia Law School.
InsideClimate News—November 19
60% of Toxic Superfund Sites Threatened by Climate Change, GAO Finds
What we have seen so far is "certainly just the beginning," said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. "All the projections are that coastal storms and inland precipitation have nowhere to go but up, and that is going to steadily increase the number of Superfund sites that are vulnerable," he said.
NBC News Now—November 19
A legal look at the public impeachment hearings (Video)
Former Federal Prosecutor and Legal Analyst Berit Berger reports with a legal take on the public impeachment hearing.
New York Law Journal—November 20
Unicorns and Ratchets: How IPO Overvaluation Is Encouraged
By John C. Coffee Jr.
Anti-dilutive ratchet clauses have become fairly common—apparently being now used in around 15 percent of recent IPOs. Although they only have impact when the IPO is completed at a price below that specified in the ratchet clause, such “down round” issuances have regularly happened.
Concord Monitor—November 20
My Turn: The attack on science for political expediency
Since the beginning of 2017, the Sabin Center for Climate Change Law, at Columbia Law School, has been tracking any deregulatory-related activity related to climate change. The center has documented more than 150 such actions that directly, or tangentially, challenge or attempt to silence the science behind the policies.
The Economic Times—November 20
India’s abstinence from RCEP: Free marketeers getting it surprisingly wrong
Professor Jagdish Bhagwati, the exemplar-evangelist of the benefits of free trade and market economy, memorably described preferential trade agreements (PTAs) as Termites in The Trading System, in an eponymously titled book published in 2008.
Frustrated Advocates Increasingly Turn to the Courts to Fight Climate Change
“Ideally, Congress would be taking aggressive action,“ says Michael Gerrard, a law professor and director of the Sabin Center for Climate Change Law at Columbia University, which tracks climate-related lawsuits on a database. “But it’s not. The frustration on the part of the environmental community about legislative inaction is sparking litigation.”
[Note: This article also appeared in Salon.]
The Guardian—November 20
Kelsey Juliana: 'What if fashion came to represent a new way of living?'
There are currently 1,390 lawsuits against governments and fossil fuel corporations in more than 25 countries, according to the Sabin Center for Climate Change Law.
[Note: The Sabin Center’s “Global trends in climate change litigation: 2019 snapshot” report was also quoted in The Conversation.]
Restatement Looks To Resolve Divisive Int'l Arbitration Issues
George Bermann of Columbia University and a cast of arbitration experts who worked on the project over the last 12 years outlined the Restatement's position on various hot topics in international arbitration at Sidley Austin LLP's Manhattan office.
National Jurist—November 20
A sweeping look at the world's anti-trust laws
“Despite the spread of competition laws, until now there has been limited data available to systematically compare regulatory regimes across countries, determine which factors lead to the adoption of competition laws, and what effects these laws have on market outcomes,” said Columbia’s Anu Bradford, the Henry L. Moses Professor of Law and International Organization and director of Columbia Law’s European Legal Studies Center, who developed the “Comparative Competition Law” project with University of Chicago Law Professor Adam Chilton.
Public Radio International—November 20
This orangutan’s 'personhood' victory brings hope to US animal rights
“If we care about Sandra, why don’t we care about all of them?” asked Mariann Sullivan, a lecturer in animal law at Columbia Law School and co-host of the Animal Law Podcast. She points out that these court cases only apply to individual animals, not animals as a class.
[Note: This article appeared in multiple media outlets nationwide.]
Wired Magazine—November 20
Breaking Up Big Tech Isn’t the Only Approach for Antitrust
On Monday, Columbia law professor Tim Wu, a prominent member of that group, published a brief manifesto laying out specific principles for revived antitrust enforcement. Notably, many of the items aren’t about company size or breakups; they’re about the need to crack down on certain types of corporate conduct, like “predatory pricing,” or charging below cost to drive competitors out of business and corner the market.
Summary, Judgment—November 20
How Being a Law Professor Ruined Watching Professional Sports for Me
Adam’s post about the differences between umpires and referees reminds me of a provocative article by Mitch Berman, “Let ‘em Play” A Study in the Jurisprudence of Sport, as well as these two recent blog posts by Dave Pozen, What Are The Rules of Soccer?, and The Rulification of Penalty Kicks.
Universa UOL—November 20
Mulheres negras são as que mais sofrem violência doméstica. Mas por quê? (Spanish)
This is what is called the intersectionality principle. Central to black feminism, the concept translates to "the way in which racism, patriarchalism, class oppression, and other discriminatory systems create basic inequalities that structure the relative positions of women, races, ethnicities, classes, and others," as U.S. professor of civil rights and racial studies Kimberlé Crenshaw defines it.
The Chronicle of Higher Education | Letters—November 21
Article on Canceled Panel Discussion at Columbia U. Was Inaccurate
The Chronicle’s story about the cancellation last week of a panel discussion on the Chinese Communist Party is not accurate, as The Chronicle was told ahead of publication (“Columbia U. Canceled an Event on Chinese Human-Rights Violations. Organizers See a University Bowing to Intimidation,” The Chronicle, November 19). The students who were organizing the event, needing to quickly move their event from NYU, failed to meet basic procedural steps required of every student group — a mundane reason, but the true one.
Suzanne B. Goldberg, Executive Vice President for University Life, Columbia University
Bloomberg Businessweek—November 21
Taking Walgreens Private for $70 Billion Is Pricey Even for KKR
If a deal gets done, expect “significant layoffs and significant store closings” to improve the business, says John Coffee, director of the Center on Corporate Governance at Columbia Law School. In buyouts, he says, “the essential goal is to take the company into the machine shop for very substantial repairing and remodeling.”
The New Republic—November 21
Making Impeachment Matter
Black’s 1974 essay—rereleased for the Trump era, with a lengthy additional essay by contemporary legal thinker Philip Bobbitt—is a fascinating document.
New York Post—November 21
Charles Schwab eyes purchase of TD Ameritrade: reports
While other brokerages have also scrapped commission fees, the Schwab deal could raise suspicions among regulators given that it would come in the middle of a “price war,” according to antitrust law expert Tim Wu. “The No. 1 concern you have with mergers is they wanna merge to raise prices or eliminate competition,” said Wu, a Columbia Law School professor. “And they’re in the midst of an intense competition, which has had an effect on their stock prices.”
Time Magazine—November 21
Humanitarian Scott Warren Found Not Guilty After Retrial for Helping Migrants at Mexican Border
“The government certainly wants to send a strong message to people who are providing aid to migrants,” Katherine Franke, professor of law at Columbia University and faculty director of the school’s Law, Rights and Religion Project, tells TIME.
Financial Express—November 22
WhatsApp snooping: Mobile phone OS is far from secure
By Mishi Choudhary and Eben Moglen
Taking advantage of a fault in the WhatsApp smartphone apps distributed by Facebook, NSO made it possible for buyers of its weapon to take over any phone completely—just by sending a single message or call to any chosen recipient, no matter what the recipient did with that message. This is a fatal technical product defect that Facebook imposed on its users.
The New York Times—November 22
The Life and Death of the Local Hardware Store
By Tim Wu
The fate of Chelsea Convenience shows, in its small way, that business and capitalism can be at odds — that the drive for immense capital gains can drain the life out of human-scale business. For entrepreneurs, the American economy, with its extreme centralization, is becoming more like the Soviet economy Mr. Feygim left behind.
American Greatness—November 22
The Foundations of the ‘Administrative/Deep State’
Ironically, as Philip Hamburger has shown in his remarkable book, Is Administrative Law Unlawful?, the Progressives’ view was in fact reactionary, reaching backward rather than forward. He shows that the institutions of the administrative state essentially are the equivalent of royal prerogative commissions and tribunals such as the Star Chamber and High Commission established by King James I.
Common Dreams—November 22
Can the Religious Left Take Down Nuclear Weapons?
"Religous liberty" has been seemingly monopolized by the right, see a recent report from the The Law, Rights, and Religion Project at Columbia Law School.
Financial Times—November 22
FT readers’ best books of 2019
The Code of Capital: How the Law Creates Wealth and Inequality, by Katharina Pistor, Princeton University Press, £25
As an investment banker I have had a ring-side view of transactions – M&A, private equity, bankruptcy, restructuring and transaction lawyers’ perspectives of protecting capital providers’ interests in an almost unfair (heads I win, tails you lose) manner. This book explains the genesis, policy background and historical context to how this became a practice based on the most key elements around protecting and enhancing the value of capital – priority rank, secured title, durability, convertibility. Almost anybody who reads the book will benefit; a must-read for corporate lawyers, investment bankers, capital providers.
– Rahul Saikia
Investor Place—November 22
Alphabet Stock Faces Multiple Risks
Lina Khan of Columbia Law School stated that a “handful of digital platforms exert increasing control over key arteries of American commerce and communications…As these platforms further concentrate market power, there are rising concerns about their size—usually in reference to the large share that each firm captures of its primary markets.”
[Note: Khan is an academic fellow at Columbia Law.]
The Intercept—November 23
Humanitarian Volunteer Scott Warren Reflects on the Borderlands and Two Years of Government Persecution
But in the case of the provision of humanitarian aid, he ruled that the religious freedom defense was a success. . . . Katherine Franke, a law professor at Columbia, where she is faculty director of the Law, Rights, and Religion Project, agreed. “Oh, it’s enormous,” she told me. Franke has been following Warren’s case closely, filing motions on his behalf based on her expertise in the intersection of law and religion.
Jordan Times—November 23
Lecture sheds light on sexual harassment prevention, response
Many times, women are blamed for sexual violence and verbal abuses perpetrated by men, noted Suzanne Goldberg, who is a professor of Law at Columbia University in New York and a recognised expert on sexuality and gender law, having worked with universities, private employers and governments to address sexual harassment and misconduct. “Two things have changed. The first thing is that the old order is questioned,” Goldberg said, noting that the world has reached the point where questions of public interest are asked publicly.
“No he ganado un solo caso de asilo”: el duro proceso buscando refugio en EEUU que retiene a los migrantes en México (Spanish)
"It's devastating," said Elora Mukherjee, director of the immigrant rights clinic at Columbia Law School and part of the Dilley Pro Bono project, in an interview with Univision News. "This administration affects the credible fear interview process, so mothers and children no longer have a fair chance to explain why they are seeking asylum in the United States."
New York Review of Books—November 24
An Unfinished Revolution
Kimberlé Crenshaw notes that during Reconstruction, the KKK was “actually committing atrocities against everyone. They’re attacking freedmen and white Southerners who were sympathetic to the Union cause and to the Republican Party.”
Republicans, a history: How did the party of "law and order" become the party of crooks and crime?
To better understand the role of the conservative legal movement, I turned to . . . David Pozen, co-author (with Joseph Fishkin) of the paper, “Asymmetric Constitutional Hardball,” which starts making sense of how the political asymmetry discussed above impacts norm-violating practices, with profound systemic results.
Richard Briffault: „Starke Beweise gegen Donald Trump“ (German)
Professor Richard Briffault is a professor at Columbia Law School in New York. The constitutional lawyer is considered in the US as a leading expert on impeachment.
The New Yorker—November 25
Big Tech’s Big Defector
As Tim Wu, a law professor at Columbia, has pointed out, few of the current proposed policies would have any effect on whether a company can collect private data, only on how it can be used.
New York Law Journal—November 25
Introduction to the Restatement of the U.S. Law of International Commercial and Investor-State Arbitration at New York Arbitration Week
The day’s headliner was a half-day program on the new American Law Institute’s Restatement of the U.S. Law of International Commercial and Investor-State Arbitration, the final draft of which was approved earlier this year. The program was led by the Restatement Reporter Columbia Law School Prof. George A. Bermann . . .
Reuters | Breaking Views—November 26
By Anu Bradford, Adam Chilton, Katerina Linos
Modern antitrust laws were invented in America. Yet it’s Europe that’s now acting as the global authority on competition regulation. The United States is losing the global race.
[Note: A Spanish version of this article appeared in Cinco Días.]
Argument preview: Justices to consider copyrightability of state legislative codes
By Ronald Mann
The Supreme Court will hear oral argument in Georgia v Public.Resource.Org next week, on the first day of its December argument session. An outsider might be surprised that the question presented in this case is not well settled. The question is whether the state of Georgia is entitled to copyright protection for the Official Code of Georgia Annotated.
The American Prospect—November 26
Tech Companies’ Big Reveal: Hardly Anyone Files Arbitration Claims
Deepak Gupta and Lina Khan described arbitration in 2017 as a wealth transfer, a legal means for businesses to sidestep the law and the payouts it might otherwise be forced to distribute. “By both suppressing claims and yielding outcomes less favorable to workers and consumers, arbitration most likely transfers wealth upwards,” Gupta and Khan wrote.
Associated Press—November 26
Religious freedom law plays key role in migrant-aid case
“By and large, what we’ve seen from the federal judiciary is they’re much more willing to grant conservative, faith-based religious liberty claims and have a kind of skepticism” of more liberal claims, said Columbia University law professor Katherine Franke, who founded a think tank at the university that focuses on religious liberty’s ties to other legal rights.
[Note: This article appeared in numerous media outlets worldwide.]
Chief Investment Officer—November 26
KKR Acquires Military Contractor Novaria Group
“When you invest in certain industries, particularly industries that are suppliers to the US military or are related to critical infrastructure, the field of competitors gets narrower,” said Eric Talley, professor of law at Columbia Law School and co-director of the Millstein Center for Global Markets and Corporate Ownership. “The defense industry has not incurred significant reductions in its own budgets and that is likely to continue. The military is one part of the federal government that never gets reduced. It only gets increased.”
What is the right level of court system transparency?
And, channeling Homer Simpson, Professor David Pozen has described government transparency “as the cause of, and solution to, a remarkable range of problems.”
Judge’s Ruling Shows Religious Freedom Isn’t Just For The Christian Right
Elizabeth Reiner Platt, director of Columbia University’s Law, Rights, and Religion Project, said the decision is a small step, but “extremely significant.” She said she hasn’t seen many successful religious exemption claims for traditionally progressive issues, such as immigrants’ rights, environmental protection and anti-death penalty protests.
USA Today—November 27
The homeless are fed and embraced across the country at Thanksgiving. The rest of the year? Cities are pushing back
"What we call the 'criminalization of homelessness' is a big problem," said Maria Foscarinis, executive director of the National Law Center on Homelessness & Poverty. "I think the problem is getting worse because the housing crisis is getting worse."
[Note: Foscarinis is an alumna and a lecturer at Columbia Law.]
The Guardian—November 29
Countries from Siberia to Australia are burning: the age of fire is the bleakest warning yet
As this truth sinks in, the part of humanity committed to survival is seeking legal redress. Columbia Law School documents more than 1,640 ongoing lawsuits against fossil fuel companies and/or governments.
The Guardian—November 30
Podcasting refreshes the parts that radio cannot reach – but for how much longer?
For a long time, podcasting was a hidden treasure enabled by the affordances of the technology. . . . In that sense, it may be subject to the pernicious cycle first noticed by Tim Wu in his landmark book, The Master Switch – in which a medium starts out gloriously free but winds up being captured and zombified by commercial interests.
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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.