Faculty in the News: January 16-31, 2017

“In some sense, it feels like quainter times,” said Columbia Law Professor David Pozen, who explored the Morison case for a law-review article on leaks.

 

Financial Times—January 17
Trump’s Washington hotel could trigger early test of conflicts
“It would be up to the GSA, which on January 20 starts working for him,” says Richard Briffault, a Columbia University law professor who is not swayed by the opposing argument that because Mr. Trump signed the lease before his election, he is not in violation of the bar on officials benefiting from the agreement. 

 

David Pozen’s work has documented the ways in which government officials can and have used leaks to express dissent, as well as to shape discourse about government policies. 

 

Tim Wu, a Columbia University law professor, onetime political candidate and author of “The Attention Merchants: The Epic Struggle to Get Inside Our Heads,” has called for Americans to resist advertising in parks on the theory that “we should not simply resign ourselves to a world saturated by commercial appeals at the cost of our private and sacred spaces.”

 

Climate change is a public health disaster waiting to happen. Protecting public health is the core mission of EPA. Thus, Pruitt’s avowed mission to undo regulations designed to address climate change would fail the American people and the agency he would lead. Importantly, it will also fail in court.  

 

“Whole Woman’s Health was a really joyous day,” said Carol Sanger, a legal historian and author of the upcoming book About Abortion. “In part because it meant that the state was going to have to be put to the test of having to show facts, to prove that a rule corresponded to women’s actual health needs.”…But Sanger worries that under a Trump administration, anti-abortion activists will find ways to work around the ruling. “We are now in this post-truth age, where you take the facts you want and that’s going to be good enough.”

 

“I think the app store censorship issue is one layer of ice on the surface of the iceberg above the waterline,” said Eben Moglen, a professor at Columbia Law School and a leader in the free software movement of activists who have long been warning about the dangers of centrally managed, commercial software.

 

If Trump does decide to withdraw from the Paris climate accord, which saw more than 190 world leaders agree to lower emissions that lead to global warming, he could do that "on his own," said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University.

 

Ira Millstein, a senior partner at Weil, Gotshal & Manges LLP and an adjunct professor at Columbia Law School, talks about his new book, "The Activist Director: Lessons From the Boardroom and the Future of the Corporation." 

 

Note: Millstein ‘49 is an adjunct professor. 

 

This column will analyze the application of the Emoluments Clause to President-elect Donald J. Trump. Why focus on this special provision when Trump is ensnarled in a host of other conflicts of interest problems, will not divest his business holdings, and intends to ignore all anti-nepotism standards by employing his son-in-law in the White House? The answer is that the Emoluments Clause is uniquely and fundamentally a "national security provision" 

 

Magistrate Judge Ronald L. Ellis will be leaving the bench after serving 24 years on the court… After being named to the Southern District bench in 1993, Ellis continued to write, lecture and teach on topics such as race and American justice, trial techniques, examination of expert witnesses and statistical proof. He also has been an adjunct professor at NYU School of Law, Columbia Law School and New York Law School.

 

Note: Ellis is a lecturer in law.

 

Trump’s EPA could ask the DC Circuit for a so-called “voluntary remand,” a motion that would essentially halt the case while the EPA reviews the complaints, according to Michael Gerrard, the director of the Sabin Center for Climate Change Law at Columbia Law School. 

 

Daniel C. Richman, a professor at Columbia Law School, said Mr. Obama’s light publication record might cause a hiring committee to balk at welcoming him as a peer. "Were we to consider him as [a candidate making a lateral move] for a regular academic position, his candidacy would rise or fall on his written work alone," wrote Mr. Richman. "And some would worry that the work, ranging across diverse fields like clean energy, health care, and criminal justice, lacks a clear scholarly agenda."

 

At the retrial, DiCarmine and Sanders could capitalize on Davis' absence by pinning blame for some of the firm's actions on him, said John Coffee, a Columbia Law School professor and securities law expert. "They may imply that this is something Davis decided, not them," Coffee said. "Once he's no longer a co-defendant, you can try to shift blame to the absent person."

 

Courts have in the past cited ‘home rule’ as a basis for striking down laws passed in Albany that affect New York City alone. But the language in Felder’s bill refers to an “open class” of locality, rather than naming New York City, and that argument has been upheld by courts, said Richard Briffault, a professor at Columbia Law School who specializes in state and local government law. “The state most likely has the legal authority to ban local plastic bag fees but it is completely inconsistent with the idea and purpose of local home rule,” he said.

 

“Once he takes 50 percent, he is a controlling shareholder and the company becomes his affiliate. If he takes any action to benefit his affiliate, it is the same as if he was benefitting himself. But he cannot take action; he can only give advice. The danger would be if he tried to pressure any federal agency with arguable jurisdiction over Herbalife,” said John Coffee, professor of law and director of the Center on Corporate Governance at Columbia Law School in New York, during an interview with FOX Business. 

 

Obama’s understanding of his own capacity—and need—to continuously evolve is something he deftly applied to social change. 

 

Note: Frank is director of the What We Know Project at Columbia Law School

 

“It would not be difficult for the new administration to tell the courts that they want to reconsider the rules issued during the Obama administration, and then to take their sweet time in the reconsideration,” Michael Gerrard, an environmental law professor at Columbia Law School, told BuzzFeed News.

 

The Women's Marches taking place this weekend have stirred up fierce debate about the nature and plausibility of solidarity between women. In this debate hosted by Isabel Hilton for The Institute of Art and Ideas, Kimberle Crenshaw, Margaret Heffernan and Myriam Francois are asked the question: Might the 'female elite' paradoxically harbour the end of the sisterhood?

 

“The coalition for Obama was never sustained after the election,” said Kimberlé Williams Crenshaw, a professor of law at Columbia University and the University of California, Los Angeles. “There’s been a failure to engage the base.”

 

But overturning Roe, which marks its 44th anniversary on Sunday, will not be simple. More likely, Trump's Supreme court will move in a pro-life direction gradually, allowing states to pass restrictive laws that make it harder for women to get abortions. In other words, we can look forward to more years of legal battles. To figure out what that battle will look like, I called up Carol Sanger, a professor at Columbia Law School and an expert in reproductive rights. 

 

While the case affirmed the basic findings in Roe, it gave states increased liberty to begin regulating abortion from the moment of conception, Carol Sanger, a law professor at Columbia University and author of "About Abortion: Terminating Pregnancy in the 21st Century," told NBC News. "That just opened the door to all legislators who wanted to pour out legislation," Sanger said, citing state laws such as mandatory waiting periods, ultrasounds for women seeking abortion and laws regulating fetal remains.

 

NDWA Director Ai-jen Poo, Planned Parenthood President Cecile Richards, Women’s March co-organizer Sarsour, domestic worker Claudia Galindo, and feminist scholar Kimberlé Crenshaw, who coined the term “intersectionality,” shared additional next steps at the town hall…Crenshaw advised the audience not to “lose the shock that we felt on November 8, ever” and to “resist every gesture towards normalization.”

 

But John Coffee, professor at New York's Columbia Law School and director of its Center on Corporate Governance, questioned its validity without direct or serious injury. "I am not saying they are making a political gesture, but others may make that inference," he told AFP.

 

A new tool launched by the Columbia Law School on Donald Trump's first day in office is tracking every step the Trump administration takes to roll back or eliminate existing federal rules on climate change and energy. The tool is called the Climate Deregulation Tracker and is run by Columbia's Sabin Center for Climate Change Law…this tool was developed in anticipation that the new administration would seek "to undo regulations to avoid dealing with climate change," said Michael Burger, the center's executive director.

 

Last week, a former “Apprentice” contestant sued Trump for defamation after he called her a liar for suggesting he’d sexually assaulted her. Since that predates his time in office, it’s fair game, Columbia Law School professor Gillian Metzger told me when we spoke by phone on Monday. “Any lawsuit that’s targeting President Trump as president on the basis of official action is going to run into a lot of jurisdictional roadblocks,” Metzger said. “But the defamation suit or a libel suit—anything based on actions undertaken before President Trump assumed office—is a suit that the court has ruled can go forward.” 

 

However, the directive won’t have any impact on the Securities and Exchange Commission, the Commodity Futures Trading Commission, the Consumer Financial Protection Bureau and the federal bank overseers, John Coffee, one of the nation’s leading academics on financial regulatory matters, said in an email.“The president cannot compel the independent agencies to take (or not take) action, but he can effectively decimate their budgets, and that is a powerful deterrent,” said Coffee, a Columbia University Law School professor who has testified before Congress numerous times.

 

In what was the first-ever speech by a Chinese head of state at Davos, Xi also touted China’s domestic economic picture, and plugged China’s many contributions to global economic growth. The political motivations behind Xi’s speech are not hard to discern: at a time when global leadership is in worryingly short supply, Xi offered up China, and more specifically himself, to fill the gap. If the United States under President Trump is going to pull back from the world, Xi wanted to reassure his audience that China could step forward.

 

Note: Kellogg is a lecturer in law.

 

Many environmental rulings cannot be easily changed, says Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University. For example, the Endangerment Finding, the EPA’s 2009 conclusion that greenhouse gases contribute to climate change—a ruling that that has influenced environmental policy since then—could not be undone or ignored without a court-approved reason for doing so. “No court can or at least should reach that conclusion,” says Burger.

 

Reality Bites: Learning the Future of V.R. at Sundance 

Over the years, the festival, which runs through this week, has become a showcase for V.R., and the sheer variety of what’s attempted reflects the fact that absolutely no one knows just what niche the technology fills. Such growing pains might cause investors some anxiety, but they are good news for the rest of us, for we seem to be entering the springtime of the medium’s soul—V.R.’s own period of teen-age experimentalism. As in the early days of film, or of radio, or the PC, or the Web, just about every noodle is being thrown at the wall.

 

However, the fiduciary rule is not yet safe from the Trump administration’s anti-regulation movement. For example, the new secretary of labor can overturn the rule, said John Coffee Jr., director of Columbia Law School’s Center on Corporate Governance. “The Department of Labor may not really enforce it, and I’m not sure if there are any legal remedies,” said Coffee. “The president and secretary of labor could wind up in court, although frankly that generally doesn’t happen.”

 

According to David Pozen, a law professor at Columbia University and former special advisor in the Obama State Department, “the whole classification system” of the U.S. government is essentially a creation of executive orders, with no congressional involvement.

 

Michael Gerrard, who directs the Sabin Center for Climate Change Law at Columbia University Law School, told Mashable in an interview that he agrees the notice could lead to serious consequences if it is violated, and that this is not an empty gesture with little legal effects…”It would not violate the 'document hold' to take down a website but make sure the records it had displayed still exist so that they can be retrieved and produced if necessary," Gerrard said.

 

In 2014, Columbia University law professor Kimberle Williams Crenshaw found that black girls were punished in school at rates even higher than black boys. “Let Her Learn” is trying to halt these disproportionate rates of suspension and expulsion for black and brown girls within the education system.

 

There is a broad sense that, putting the election rhetoric behind us, as we should, our nation is facing uncertain times under President Donald Trump…Uncertainty has never been good for business, and the way and degree to which corporations will actually be impacted is largely conjecture at this point. So how do corporations navigate these unchartered waters when they have to perform every day and don’t have the luxury of waiting to see how things work out?

Enter the activist director, who is now needed more than ever.

 

The influence of party politics in federal judge appointments continues to escalate. “Presidents have long appointed judges of their own party,” Columbia Law School professor Michael Gerrard said. “But the confirmation process wasn't always political.”

 

In 1989, professor Kimberle Crenshaw put a name to the concept: intersectionality. Put simply, intersectionality describes the idea that everyone experiences the world differently based on their combination of identities. Crenshaw's 1989 paper specifically applied the concept to the intersection of race and gender; in the decades since, though, intersectionality has come to encompass the vast array of identities that exist in the world.

 

Newsweek—January 27

Donald Trump is the Most Unlikely Anti-Abortion President Ever  

Carol Sanger, a Professor at Columbia Law School and the author of the forthcoming, About Abortion: Terminating Pregnancy in the 21st Century, notes Pence's importance, saying his "participation in the March for Life signaled not only symbolic support for the pro-life movement, but actual support as well.  He endorsed the revival of the 'Culture of Life,' a hallmark of [last seen in] the George W. Bush White House."

 

President Trump said he will launch an investigation into what he calls widespread voter fraud in the 2016 election. He maintains votes were cast illegally, despite having no evidence or reports of voter fraud from election officials in any of the 50 states. Richard Briffault, professor of election law at Columbia University, joins "CBS This Morning: Saturday" to discuss where an investigation may lead.

 

An ugly row about sacred cows 

So, a great victory for the people, and a welcome defeat for government meddling and nannying courts? Perhaps, but the affair has left some uneasy. “I really have no opinion at all about the sport,” says Madhav Khosla of Columbia University. “But it is quite disturbing to see the Supreme Court so easily challenged, and basically forced to back off.”

 

Note: Khosla is the Dr. B. R. Ambedkar Academic Fellow

 

The response from tech companies has been “as forceful as it possibly can be,” said Eric Talley, a corporate law professor at Columbia Law School. “One of the difficult aspects of reaction to the Trump administration in its first couple of weeks is trying to balance the interest of expressing legitimate concern ... against the potential cost of being out too far ahead of everyone else,” he said.

 

Timothy Wu, an author and Columbia University Law School professor, argued for more aggressive activity by the Federal Trade Commission and the U.S. Justice Department, with long-standing companies that appear to pose a threat to antitrust statutes and after mergers have been approved. He said that except for recent history, it was the rule rather than the exception for the U.S. government to move to break up companies deemed to have developed a stranglehold over competition. 

 

Tim Wu, a well-known professor at Columbia Law School best known for coining the term “net neutrality,” tweeted Saturday that the executive order is “utterly un-American.” In 2014, Wu  ran for lieutenant governor of New York against Kathy Hochul, the running mate of Andrew Cuomo. He currently works on issues of technology and protecting consumers in the office of New York State Attorney General Eric Schneiderman. 

 

In some cases change is not possible and the law is strictly applied, points out Bernard Harcourt, a law professor at the School for Advanced Study of Social Sciences (EHESS) in Paris. In terrorism cases, for example, “the moral questions are already decided and entrenched in ways that they are not with homelessness or immigration,” he says. When “there is a gap to engage the ethical and moral questions of how to treat others,” he adds, “where the political debate remains somewhat open, there will be flexibility” for prosecutors and judges to be lenient.

 

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