Faculty in the News: December 1-15, 2016

This intraparty debate has become bitter, escalating to new levels after Mark Lilla, an intellectual historian at Columbia, published “The End of Identity Liberalism” on these pages two weeks ago…On Nov. 21, Katherine Franke, a law professor at Columbia, published “Making White Supremacy Respectable. Again.” in the Los Angeles Review of Books. She does not hold back, going so far as to link Lilla to the fervent white supremacist David Duke.

 

For more on that Supreme Court decision, and the legal complexities of when cities limit how they cooperate with federal immigration rules, WNYC's Jami Floyd spoke with law professor Gillian Metzger from Columbia Law School.

 

This year, parks in several states including Idaho and Washington, and the National Park Service, will be blazing a new trail, figuratively at least, as they begin offering opportunities to advertisers within their borders.

 

Net neutrality, for the uninitiated, is the principle that broadband providers should treat all content, sites, and platforms equally in terms of traffic. Columbia University law professor Tim Wu, who’s credited with coining the term, compares the idea to an electric grid. “The electric grid does not care if you plug in a toaster, an iron, or a computer … [It’s] a model of a neutral, innovation-driving network.”

 

Professor Matthew Waxman of Columbia Law School, who served in the Department of Defense overseeing detainee policies under the Bush administration, explained that "the government to date has been relying on perhaps a plausible, but very stretched, interpretation of the AUMF to include ISIS (for purposes of drone strikes)," and the concept of further relying on the AUMF to detain ISIS-supporters not captured on the battlefield, but arrested in the US, would be a "big stretch."

 

LGBTQ clergy tackle tough issues ahead of Trump presidency
The deep support from evangelicals in particular means a Trump administration "will feel obligated to deliver a set of promises to them," many of which will be based in conservative values, said Katherine Franke, a law professor at Columbia University and the director of the Center for Gender and Sexuality Law.

 

Richard Briffault, a professor at Columbia Law School who focuses on government and legislation, says these cases hinge on whether the state officials were participating in partisan gerrymandering, which has been ruled constitutional, or racial gerrymandering, which is illegal.

 

Here are a blog post and related paper by Kathryn Judge of Columbia Law School about runs in the shadow banking system. Judge contrasts the regulation of capital markets, which rely on disclosure and expect investors to understand what they're buying, and the regulation of banks, which issue information-insensitive money claims (deposits, etc.) but which are prudentially regulated to make sure those claims are good. 

 

Join Future Tense on the evening of Wednesday, Dec. 14, in New York for a happy hour conversation with Tim Wu and New York Times writer (and Slate alum) Amanda Hess to discuss the impact of advertisement and consequences we might face for leading more artificially moderated lives.

 

Daniel C. Richman, a former federal prosecutor and Columbia Law School professor, said the Supreme Court took a minimalist approach in dealing with the case by resolving a dispute between two federal appellate courts. He said the court made clear that the framework it established down in the Dirks case was still valid. “They clearly are paring back on Newman,” Mr. Richman said. “What they are doing is preserving the Dirks analysis, making it clear it covers family gift-giving.”

 

“There’s definitely going to be a problem with the WTO,” said Michael Graetz, a former top Treasury tax official in George H.W. Bush’s administration who now teaches at Columbia University. “You’re talking about opening up a huge can of worms.”

 

“Everybody knows about Kermit Gosnell,” said Carol Sanger, a Columbia University professor specializing in abortion law who’s been honored by the pro–abortion rights Center for Reproductive Rights...“But I think the Gosnell case is being milked for everything it could be milked on,” Sanger continued. 

 

“Barring the video evidence, it is likely that there would have been no indictment and no charge,” said Bernard Harcourt, a law professor at Columbia University with a focus on the sociology of punishment and political and cultural theory. “It would likely have been portrayed as justifiable use of force in the face of a dangerous individual fleeing from a felony, namely a Taser attack on a police officer. In all likelihood, that would have fully justified the use of lethal force, and I suspect there would have been nothing more than a press conference by the police chief saying there is no evidence to go forward.”

 

Scott Horton, a Columbia Law School adjunct professor who testified at the hearing, also suggested changing a 1995 memorandum of understanding between the intelligence community and the Justice Department regarding criminal referrals to clarify that neither members of Congress nor their staff are “proper subjects of a criminal reference.” If that agreement cannot be reached, Horton suggested referrals for congressional staff members should at least be sent straight to the attorney general.

 

By Jamal Greene and Jennifer Mason McAward

The most immediate impact of the Thirteenth Amendment was to end chattel slavery as it was practiced in the southern United States. However, the Amendment also bars “involuntary servitude,” which covers a broader range of labor arrangements where a person is forced to work by the use or threatened use of physical or legal coercion. 

 

As Attorney General, Sessions could tell federal government to stop arguing the case, though how that would work and what would come after is unclear according to Michael Burger, executive director of Columbia’s Sabin Center for Climate Change Law. Burger said there are a number of states, cities and environmental organizations that could continue the defense.

 

“My initial reaction: This is not good for climate law in America,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University. “Pruitt is a climate denier, who has stated his intention to dismantle EPA's climate regulations. We can and should expect he will attempt to do so, and that he will be sued every step along the way by states, cities and environmental groups devoted to continuing progress.”

 

I don’t know how to put this more clearly: it is not that I seek a lawless framework for the use of drones (or any other weapon in the wars on terror)— quite the contrary— but that I do not believe that litigation provides the sole and exclusive domain of law. It is not a telling riposte to claim that I reject “any meaningful legal constraint” on state violence by the sleight of hand of assuming away the very point at issue—whether meaningful legal constraints exist outside court-ordered ones.  

 

[Ira] Millstein is arguably the world’s leading authority on U.S. corporate governance, directors, and why they work or don’t work the way they do. With investors and the public asking “Where was the board?” at Wells Fargo, Samsung, Volkswagen, and other companies today, his expertise is in demand. I talked with him yesterday in New York at Columbia Law School’s Millstein Center for Global Markets and Corporate Ownership. It was named after him when he turned 80, a decade ago. Today, at 90, he speaks with energy and sharpness that would be impressive in a man of 50.

 

There are reasons the United States is often claimed to be unusually resilient to authoritarianism. “One plausible depiction of our whole constitutional design,” said David Pozen, a professor at Columbia Law School, “is that it’s premised on a liberalism of fear.” 

 

"Estate-tax repeal seems virtually certain," says Michael Graetz, an estate-tax expert who was a Treasury official during the administration of George H.W. Bush and now teaches at Columbia University's law school. 

 

Michael Gerrard, an environmental law expert who leads Columbia University's Sabin Center for Climate Change Law, called Pruitt's appointment "a stick in the eye to EPA." "He has cultivated a reputation as a fighter against all of EPA's major recent initiatives. It's going to be profoundly demoralizing to the EPA staff," Gerrard said.

 

If the Circuit Court rules against the Clean Power Plan, Trump could decline to appeal the decision to the Supreme Court—although environmental groups and other interested parties would probably do so. “If, by the time the case gets to the Supreme Court, there is a Trump-appointed justice sitting on it, the odds of the [current Clean Power Plant rule] surviving there do not inspire confidence,” says Michael Gerrard, an environmental law professor at Columbia Law School who directs the Sabin Center for Climate Change Law.

 

Bernard Harcourt, a law professor at Columbia University, agrees — noting that the language in Sessions’ opinion seems to more clearly specify what gives a law enforcement officer justification to use deadly force than in previous case law, including Tennessee V. Garner. “I do not recall there being a requirement of ‘lesser alternative’ so clearly stated” in prior cases, Harcourt notes. What Sessions brings up —”‘Police are required to consider what other tactics if any were available, and whether there are clear, reasonable and less intrusive alternatives to the force being contemplated.’  That would be the question,” he said.

 

John Coffee, director of Columbia Law School's center on corporate governance, told AFP the SEC's results had not lived up to White's rhetoric, and many admissions lacked teeth. "It is hard to change settled practices in Washington and the 'good old boys' in the private bar and the SEC have persisted in their ways," he said in an email.

 

Michael Graetz, a tax expert at the Columbia Law School, said he doubted that argument would prevail in Geneva. “W.T.O. lawyers do not take the view that things that look the same economically are acceptable,” Mr. Graetz said. “They don’t behave the way Alan might like.”

 

 In “The Leaky Leviathan,” a study published three years ago in the Harvard Law Review, David Pozen attempts to understand a puzzle. Strict laws prohibit government officials from disclosing secrets, yet leaking has been a constant feature of American political life. Since the passage of the Espionage Act, in 1917, the federal government has prosecuted only about a dozen cases concerning media leaks of state secrets. That’s an astonishingly small number. Pozen, a Columbia law professor, cites one estimate that, between 1949 and 1969, 2.3 per cent of the front-page stories in the Times and the Washington Post were based on government leaks…Even the farcical dénouement of the Ellsberg case upholds the Pozenian principle that the good leak is the leak that perpetuates the practice of leaking. 

 

Philip Hamburger is a law professor at Columbia and author of “Is the Administrative State Unlawful?” He believes the president-elect’s cabinet selections thus far—Scott Pruitt for the Environmental Protection Agency, Betsy DeVos for Education, Ben Carson for Housing and Urban Development, Andrew Puzder for Labor—may give Mr. Trump a unique opening not only to reverse bad Obama rules but to reform the whole way these agencies impose them. If Mr. Trump really hopes to drain the swamp, says Mr. Hamburger, cutting these agencies back to constitutional size would be a terrific start.

 

People who oppose abortion think the fetus has a life and that women should bear the child, says Carol Sanger, a professor focusing on reproductive law at Columbia Law School. “What’s peculiar about the IVF cases is the woman is trying to have a child, so she’s on the ‘right side’ of this, and yet the law is defining the aspects of the process of IVF as basically an abortion,” Sanger adds.

 

Forty-two constitutional law scholars called Tuesday on President-elect Donald Trump to reverse himself on a range of issues, from press freedom and judicial independence to abortion, immigration and racial discrimination.

 

Note: Professor Jamal Greene is among those who signed the letter.

 

Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, said an early test of Perry’s priorities will be what he does with one of the DOE’s least-known but most important jobs—setting energy efficiency standards for appliances and industrial equipment. Those standards help reduce the sales of natural gas, electricity and other forms of energy, and Perry’s actions on those standards will show whether he will be pro-energy or pro-consumer, Gerrard said.

 

In order to make sense of Donald Trump's election, and the support white women showed him at the polls despite an avalanche of sexual assault allegations,[Kimberlé] Crenshaw, who spoke at Mic's Women in Media breakfast on Dec. 1 in New York City, drew on another powerful man whose alleged sexual predations had been raised, and then ignored: Supreme Court Justice Clarence Thomas. 

 

Under language in the company's proxy filing, some executive compensation experts say, it's possible Tillerson could have to kiss some of that sum farewell. "Based on my analysis, I think he will have to give up everything that’s unvested without special board permission," said Robert Jackson, a professor at Columbia Law School who served as an adviser on executive compensation issues to the Department of Treasury during the Obama administration. 

 

 

With the Electoral College set to meet next week, millions of Americans horrified by the prospect of a Donald J. Trump presidency have implored red-state electors to vote for Hillary Clinton or an establishment Republican. Millions of Americans supportive of Mr. Trump find these efforts galling. But both sides agree on what to call such electors: “faithless.” This is a loaded label. Is it warranted? Do presidential electors have an obligation to ratify their state’s popular vote?

 

“There have been ‘faithless electors’ in nine of the last 17 presidential elections—1948, 1956, 1960, 1968, 1972, 1976, 1988, 2000, and 2004,” wrote Columbia University Law School’s Richard Briffault, who said Congress has only once debated whether a faithless vote should be accepted or rejected. 

 

The program has its critics. Social justice advocates, led by legal scholar Kimberlé Crenshaw, have noted the absence of similar resources for black and Latina girls and women who faces similarly bleak — and, at times, worse — prospects for employment and stability than their male counterparts. 

 

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