Faculty in the News: March 1-15, 2017

 

“The power of men to decide what the world is going to look like, what counts and what doesn't, hasn't really been terribly disrupted in a generation,” said feminist legal scholar Kimberlé Crenshaw.

 

“It's not a settled issue in the U.S.," said Carol Sanger, author of the forthcoming, About Abortion: Terminating Pregnancy in the 21st Century. With a few more appointments, she said, it is possible Roe v. Wade could be overturned.

 

The narrow window between news of the apparent deal and the first trades “strongly suggests insider trading in a very high position, meaning directors, officers, lawyers or bankers associated with the deal,” said John Coffee, head of Columbia Law School’s Center for Corporate Governance. “This wasn’t the usual slow gossip among half-a-dozen hedge funds.”

 

Along with the Clean Power Plan, Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, said he also expected state attorneys general to jump into litigation over the consideration of climate change in major federal actions…While environmentalists expect to also file numerous suits against the Trump administration, states are "always valued plaintiffs" in litigation because they have an easier lift to show legal standing to sue, Gerrard said.

 

By Matthew Waxman

Below is a condensed version of the statement I have prepared for my testimony tomorrow before the Senate Armed Services Committee on the international law dimensions of U.S. cyber strategy and policy (link to the hearing is here). The full version, which also includes some extra detail and sourcing in the footnotes, is available here.

 

By Tim Wu

Thirty years ago, we accepted secondhand smoke, sugary sodas for kids and tanning salons as simple facts of life. What will we think is crazy 30 years from now? That we lived without enough sleep? Treated animals so badly? If psychologist and marketing professor Adam Alter is right, the answer may be our use of addictive technologies.

 

Katherine Franke, director of the Center for Gender and Sexuality Law at Columbia University Law School, discusses attempts in Texas to restrict gay marriage in the state. She speaks She speaks with Greg Stohr and Michael Best on Bloomberg Radio’s "Bloomberg Law."

 

"From the statements that I've seen, I don't see how it could be shown that [Sessions] knowingly lied; the questions are too ambiguous," Jennifer Rodgers, executive director of the Center for the Advancement of Public Integrity at Columbia Law School told ATTN: via email.

 

By Tim Wu

It is impossible not to watch: Every day of the Trump administration seemingly brings another plot twist, a new initiative, outlandish attack or bizarre reversal…The nonstop media coverage cannot be faulted for being uncritical: It is, instead, a detailed assessment of the wins and losses of a wild presidency. Yet is it possible that the media, and many viewers, are using the wrong metrics of success?

 

Columbia Law School's Richard Briffault explains why treason is the only crime defined in the US Constitution…The Constitution specifically defines what treason is which is making war against the United States or giving aid and comfort to our enemies, and it actually has a procedural element that treason has to be proven by the statements of two witnesses to an overt act or a confession. And so, it is interesting, the Constitution gives that much detail to treason.

 

Jennifer Rodgers, executive director of the Center for the Advancement of Public Integrity, discuss attorney general Jeff Sessions’ announcement that he will recuse himself from any investigations into hacking in the 2016 presidential election and the possibility that he’ll be brought up on charges of perjury. They speak with June Grasso and Michael Best on Bloomberg Radio’s "Bloomberg Law."

 

To examine the data, the University of Chicago team hired Jeffrey Fagan, a nationally known specialist in police practices who also examined the New York Police Department's stop-and-frisk program. Fagan examined 94 defendants in 24 separate stings conducted between 2006 and 2013 and found that 74 of the defendants were black.

 

“It would be very unusual if individual investors revived more than a very modest allocation of shares in a ‘hot’ (or oversubscribed) IPO,” John Coffee, head of Columbia Law School's Center for Corporate Governance, told FOX Business. “Generally, underwriters allocate the scarce shares in a hot IPO to the institutional customers who have generated the largest brokerage commissions with them over the recent past. This motivates institutions to allocate commissions to the underwriters who have hot IPOs coming to the market.”

 

But one brief, filed by the NAACP’s Legal Defense Fund, together with the Columbia Law School Sexuality and Gender Law Clinic and the law firm Stris & Maher, tackles a somewhat different topic: The vile history of bathroom segregation in the United States. As the brief explains in its opening passage, “there is a lengthy and troubling history of state actors using public restrooms and similar shared spaces to sow division and instill subordination.”

 

“Both criminal and foreign intelligence wiretaps have onerous and strict processes of approval that require not only multiple levels of internal Justice Department review, but also require court review and approval,” said Matthew Waxman, an expert on national security law at Columbia University.

 

"[Grimm's] injury has not changed, and an important question remains about whether schools can discriminate against transgender students by singling them out for different bathroom rules", said Columbia University law professor Suzanne B. Goldberg.

 

“Doing major tax reform with familiar income or consumption taxes has proved remarkably difficult — even when everyone agrees that reform is necessary,” notes Michael Graetz, a Columbia Law School professor and former Treasury Department tax official who has written extensively on the issue.

 

"This seems more ad hoc and personalized than the normal way in which presidents can push to get things out to the public when they think it would be appropriate to do so," said David Pozen, who teaches national security law at Columbia Law School. "But it's also so vague what we're talking about that it's not clear there's any order from a FISA [Foreign Intelligence Surveillance Act] court that conforms to what President Trump is describing."

 

Part two of a debate on the ongoing mystery of Russia’s role in the 2016 U.S. election between attorney Scott Horton of Harper’s Magazine and veteran investigative journalist Robert Parry of Consortium News.

 

Note: Horton is a lecturer in law.

 

Determining which smaller bodies of water should qualify for protection is an important legal question, but it is also critical in ensuring that the Clean Water Act actually works. Bodies of water great and small are, after all, often interconnected. “Pollution that enters these smaller bodies of water often flows into larger bodies or underground aquifers that may be sources of drinking water,” Michael Gerrard, an environmental law professor at Columbia University, explained.

 

By Eben Moglen and Mishi Choudhary

Digital India is now a reality. Demonetisation has reminded us of the state’s power over essential facilities in the economy and society, while the push towards a cashless India demonstrates the necessity of the mobile Internet for the economy. Family life and human relations in business processes, both within and between firms, are now dependent on the availability of digital communications, which is why the increasing spread of government-imposed Internet shutdowns throughout the country is a matter of concern. The restrictions can cancel peoples’ civil rights, imperil livelihoods, and cost businesses their ability to function.

 

Speaking to IR Magazine, John Coffee, the Adolf A Berle professor of law and director of the Center on Corporate Governance at Columbia Law School, says: ‘This is an extreme case. You’re going to have a corporate governance crisis at some point.’

 

As originally written, the bill prohibits judges from certifying class actions in which the lead plaintiff has a previous client relationship with class counsel. That directive, as Columbia law professor John Coffee wrote last month, seems to conflict directly with 20-year-old legislation intended to encourage institutional investors to take the lead in securities class actions.

 

“The power of men to decide what the world is going to look like, what counts and what doesn't, hasn't really been terribly disrupted in a generation,” legal scholar Kimberlé Crenshaw said.

 

Kimberle Crenshaw’s (1989) theory of intersectionality helps us understand that these socially constructed yet significant categories impact every aspect of our lives—from where we live to what we do for a living. If we only focus on gender in science without explicitly addressing all forms of privilege and inequality, we fail to combat the institutional barriers and biases that push different groups of women out of science.

 

By Matthew Waxman

Two recent histories explore the relationship between international law and American grand strategy: Deborah A. Rosen’s Border Law: The First Seminole War and American Nationhood and Benjamin Allen Coates’s Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century.

 

“One of the things that the government argues is that the preservation of documents itself represents a burden on the government,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School. “What they’re arguing is that they’ll be irreparably injured by having to go through discovery here.”

 

The broadest bill, sponsored by Virginia Republican Bob Goodlatte, chairman of the House Judiciary Committee, would make it harder in several ways to bring class actions…Professor John Coffee Jr. of Columbia Law School wrote on his Blue Sky Blog that the restriction “seems either a death sentence for the large plaintiffs’ firm or the end of large public pension funds serving as lead plaintiff.”

 

"Life and art have long had a complicated relationship in criminal trials, sometimes acknowledged, but usually not," said Daniel C. Richman, a former federal prosecutor who teaches criminal law at Columbia University. Richman recalled that at one of his trials a defense lawyer attacked the credibility of a government witness by playing a clip from "Cool Hand Luke" to suggest that the witness had fabricated a tale of a prison break.

 

“[Preet Bharara]’s had a very, very significant impact," said John Coffee, the director of the Center on Corporate Governance at Columbia Law School. "There were other [U.S. attorneys] that prosecuted insider trading, but none as rigorously and systematically."

 

Although U.S. attorneys have a lot of independence, their priorities are set to some degree by the Justice Department, explained John Coffee, a Columbia Law school professor who teaches a course on white-collar crime…“There’s been a long-term investigation of Deutsche Bank, which does have some associations with our current President,” he said. “Deutsche Bank is being investigated for money laundering and certain currency transactions that were arguably in violation of the Russian sanctions prohibitions. There's also a long-term investigation of Valeant pharmaceutical.”

 

Sessions released a memo Wednesday that directs federal prosecutors to partner with local authorities to target violent offenders and “use the substantial tools at their disposal to hold them accountable” under federal law when “appropriate.” The effort seems to be a part of the new administration’s tough-on-crime approach, but longer sentencing for violent offenders under federal law has already been tried and failed, says Jeffrey Fagan, professor of law at Columbia University and senior research scholar at Yale Law School.

 

“You may well have a change in priorities or a rethinking of a case by a new leader,” said Daniel Richman, a Columbia University law professor, after Bharara’s sudden Saturday dismissal. “There are judgment calls that are often made in complex, nuanced cases,” he continued. “They may have a different view of the world.”

 

Working as his own attorney, [Scott Lewis] repeatedly tried to appeal his conviction, losing every step of the way. After years of stagnation, his case was taken up by Brett Dignam, a Yale Law School professor. Dignam, who now teaches at Columbia Law School, led a group of 40 Yale law students on a four-year offensive on Lewis’ behalf, compiling a 165-page petition (with a five-volume appendix). After 19 years in prison, Lewis won federal habeas corpus relief in December 2013. Lewis, now 50, was fully exonerated in 2015; Morant, 47, went free soon after.

 

“He may be trying to send a signal, showing that he is still buying and thus scaring the shorts and potential shorts,” John Coffee of Columbia Law School told The Post.

 

Former U.S. attorneys tell MarketWatch that investigations and prosecutions are expected to continue normally, carried out by the career prosecutors who have been doing them all along. Dan Richman, one former assistant US Attorney and now Columbia Law professor, says acting US Attorney Joon Kim has the power and authority to make all decisions that a permanent US Attorney can. “Joon Kim was picked by Preet Bharara and will likely consider pending cases still worth doing,” said Richman.

 

“The nice thing here is that Preet and Joon have been working together for quite a while,” said Jennifer Rodgers, the executive director of the Center for the Advancement of Public Integrity at Columbia Law School. Rodgers once worked with Kim on a case against Peter J. Gotti, a son of the late Gambino crime boss John Gotti Jr.

 

The new administration has already begun an expansive effort to chip away at environmental policy. To find out what’s at stake, on last week’s show we talked with two environmental law experts: Ann Carlson, the Shapiro Professor of Environmental Law at UCLA, and Michael Burger, the executive director of the Sabin Center for Climate Change Law at Columbia University.

 

“We’re looking at a potential collision between Trump and California,” said Michael Burger, a Columbia Law School professor and director of the school’s Sabin Center for Climate Change Law.

 

Trump's decision to release all of his returns could provide these answers, but they could also raise more questions. "Even if he were to release everything there would still be questions," said Alex Raskolnikov, a Professor of tax law at Columbia Law School.

 

"On many issues, we often see important bills that are not likely to be passed but each make important points," says Suzanne Goldberg, a professor at Columbia Law School who runs the Center for Gender and Sexuality Law.

 

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