Faculty in the News: November 16-30, 2016

“Real estate developments routinely tangle with federal and state environmental regulators,” said Michael Gerrard, a Columbia Law School environmental professor who more than a decade ago successfully fought a Trump golf course project in Westchester County, New York. “It’s easy to envision a circumstance where a federal regulator looking at an application from the Trump family would get extremely nervous.”

 

What is the future of the Securities and Exchange Commission under a Trump presidency? James Cox, a Professor of Law at Duke University, and John Coffee, a Law Professor at Columbia University discuss the future, and review the performance of SEC Chair Mary Jo White, who is leaving at the end of the Obama Administration.

 

"As the head of the executive branch, the president may not be able to — and arguably under the Constitution it might not be possible to require the president to — recuse from government decisions," said Richard Briffault, a professor of legislation at Columbia Law School.

 

Donald Trump is not yet the President-elect.  Under our constitutional framework, the Electoral College will select the President next month.  Electors customarily vote the way their state voted.  But many states don’t require that they do so.  As pundits have started to point out, a few dozen “faithless” electors could—lawfully—send Hillary Clinton to the Oval Office. 

 

Behind the instruments of distraction lies an entire industry devoted to capturing our attention and selling it to the highest bidder. Author and Columbia Law School professor Tim Wu has written a sweeping book about this industry. Titled The Attention Merchants, it tells the origin story of our distraction sickness: who engineered it, who benefits, and how it became so pervasive…Two weeks ago, I spoke to Wu about how we got here and about the broader war for our attention. 

 

The case for broad clawbacks comes into clearer focus when one looks closely at a series of recent corporate scandals, which each raise the same jaw-dropping question: What were those guys thinking?

 

For some time now, it has been hard to be an American liberal internationalist – someone who believes in the key role the United States plays in international affairs, and who supports, warts and all, the post-war international system that the United States did so much to create…As hard as it has been to stand up for American internationalism in the post-9/11 era, Donald Trump’s election made our brief even tougher.

 

Note: Kellogg is a lecturer-in-law.

 

The Burger Court and the Rise of the Judicial Right 

By Michael J. Graetz and Linda Greenhouse (Simon & Schuster)

The authors contend that the Warren Burger-led Supreme Court dramatically diminished the scope and impact of the Earl Warren court’s precedents.

 

But while politicians will maintain the ability to intervene on a local level, Jeffrey Fagan, the Columbia University law professor who co-authored a key expertreport on stop and frisk in NYC, says Trump would have the ability to massively reduce police oversight by sharply defunding the Civil Rights Division at the DOJ. "Any of the mentioned attorney general candidates would be hostile to police reform, and probably would kill the data collection efforts currently being designed," Fagan says. "They would set the President's Task Force on 21st Century Policing on fire."

 

In a 20-month stretch in 2005 and 2006, there were only 52 activist campaigns, according to John C. Coffee, a professor at Columbia University Law School. Between 2010 and early 2014, by contrast, there were 1,115 activist campaigns. “Hedge-fund activism has recently spiked, almost hyperbolically,” Coffee writes in a 2016 paper, “The Wolf at The Door: The Impact of Hedge Fund Activism on Corporate Governance.”

 

In the days before the settlement, Richard Briffault, a law professor at Columbia University, said Trump’s situation had only one historical analogue: the lawsuit Paula Jones filed against Bill Clinton in 1994, claiming he’d sexually harassed her while he was governor of Arkansas. The Supreme Court ruled that being president didn’t make Clinton immune from lawsuits over what he’d done before taking office. “The theme of the Clinton case,” Briffault said, “is that he should be treated as an ordinary citizen — with appropriate modifications.”

 

Daniel Richman, a former federal prosecutor and Columbia Law School professor, who has testified before Sessions’ Senate Judiciary Committee, agreed that the Alabama senator will be “a strong supporter” of corporate enforcement.

 

“I’ve had a long time to think about the selling of government over the last century,” replied [Tim] Wu, the Columbia University law professor famous for coining the term “net neutrality” about internet law. “Now we have the first reality-television candidate taking charge in Washington. The techniques used by the Trump campaign were classics in attention-harvesting.

 

"It's the nature of the business to have cooperators with really unseemly pasts," said Daniel C. Richman, a law professor at Columbia Law School. "Making deals with bad guys are par for the course in a whole range of cases. I don't think it's the nature of the business to have the cooperators breaking the law while purporting to have agreements with the government."

 

But there was no political malice involved with Comey's decision to re-examine Clinton's emails, said Daniel Richman, a law professor at Columbia Universitywho has been a close friend of Comey's for 30 years and was a former colleague of his at the U.S. Attorney's Office in New York. "When you have an obligation to disclose or to qualify, you do it full-stop. You don't worry about timing, you don't worry about how it will be read or spun by others," Richman told NBC News before the election. 

 

At New York’s Columbia Law School, a programme established by Baker & McKenzie in 2015 offers a $50,000 scholarship to Masters of Laws students from outside the US and western Europe who can demonstrate academic achievement and a need for financial support.

 

But these days, electors are not the independent-minded figures Hamilton envisioned. They’re party activists chosen for their loyalty. Many states even have laws requiring electors to abide by the popular vote, though David Pozen, a law professor at Columbia (and author of a smart recent blog post on Trump and the Electoral College) told me that such laws may well be unconstitutional.

 

After President Obama’s attempts to rule by “pen and phone,” President Donald Trump will face a profound question. Undoubtedly, he will reject some of the prior administration’s bad policies. But will he also repudiate the Obama administration’s unlawful means of imposing policy? What are these unlawful means?

 

Making White Supremacy Respectable. Again. 

A liberal commitment to what we all have in common, rather than the divisiveness of “difference” or “diversity,” will set us on the right track, argues Lilla…Let me be blunt: this kind of liberalism is a liberalism of white supremacy.  It is a liberalism that regards the efforts of people of color and women to call out forms of power that sustain white supremacy and patriarchy as a distraction.

 

In a special discussion, we will be tackling a pertinent question: Does Feminism include all women? Kimberle Williams Crenshaw, Heather Rabbatts and Gail Lewis explore whether the feminist movement has succeeded in engaging all women regardless of race, ethnicity, and sexuality. 

 

 “When it comes to bringing charges against adults,” said Daniel C. Richman, a former federal prosecutor who is now a professor at Columbia Law School, “prosecutors are certainly not required to consider a broad range of social factors. But these are precisely what a judge must consider when prosecutors want to charge a juvenile as an adult.”

 

“Attempting to overturn the endangerment finding would be like running toward a machine gun,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. “Scientific support was very strong when it was issued in 2009; it has become much stronger since then.”

 

There is much I agree with in Dawn’s essay (including Obama reforms I applaud and Bush mistakes I condemn), but here I’d make a few brief observations as to why I continue to believe that continuities outweigh breaks between the administrations and why I’d caution against celebrating the Obama Administration’s Zone 1 commitments.

 

The fact that the agreement is non-binding has been a source of ridicule among many environmentalists. But that doesn't render it meaningless, argues Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School. "International agreements operate under good faith," he said. "Whether a country is an upstanding member of the international community is what's at stake.”

 

We spoke by phone with Columbia University professor Daniel Richman, a former federal prosecutor who has consulted with the Justice and Treasury departments. He explained how and where the president can leverage his authority over the government's criminal investigatory mechanisms. Richman said that the president can, through his attorney general, target broad areas for focus.

 

“The transition team appointments have not sent positive signals to the climate community or the environmental community at large. There’s a lot of concern about what’s going to happen,” Michael Burger, executive director of the Sabin Center for Climate Change Law at the Columbia Law School, told Bloomberg BNA.

 

Indeed, some on the left are already warning that conceding on identity politics would be a capitulation to “white supremacy,” in the words of Columbia law school professor Katherine Franke.

 

As President-elect Donald Trump’s victory and early Cabinet picks embolden white supremacists and threaten reproductive rights, we speak with Katherine Franke, director of the Center for Gender & Sexuality Law at Columbia University. Her recent piece for the Los Angeles Review of Books is headlined "Making White Supremacy Respectable. Again."

 

A record high 77 percent of Americans think the U.S. is divided on the most important values. Some families are sure to find themselves split on different ends of the political spectrum. Mo Rocca found one of those families and spoke with them about the election results -- in a dry run of Thanksgiving dinner.

 

Professor Alexandra Carter joined CBS to mediate the rehearsal dinner. 

 

The Broadway Advocacy Coalition, the newly formed organization that has partnered with Columbia Law School to present a monthly series entitled The Invitation, promoting political and social change, has announced participants for its December 4 event.

 

“Repeal [of the estate tax] will reduce charitable giving, the only issue is how much,” said Michael Graetz, a Columbia University law professor who was assistant Treasury secretary for tax policy in the George H.W. Bush administration and has written a book on the estate tax.

 

Robert J. Jackson: While the weight of the evidence suggests that activism enhances, rather than destroys, long-term value, the question is far from resolved… Researchers, policymakers, corporate directors and their counsel are still searching for decisive evidence on whether hedge fund activism is good or bad for long-term value creation.

 

Jeffrey Gordon, a professor of business law at Columbia University, notes that Trump’s desire to close borders could negatively affect the ability of tech companies and startups to attract overseas talent. "[It would mean] less openness to relaxing visa restrictions on highly skilled foreign workers, so the existing talent will become more expensive and overall industry dynamics will slow," Gordon tells Fast Company.

 

"This is protected speech," said Columbia law professor David Pozen. "The Supreme Court struck down flag burning laws."…Pozen, a former clerk to Supreme Court Justice John Paul Stevens and Judge Merrick Garland, emphasized the flag cases are settled law. "It's very hard to imagine the Court overturning them now," he tells NBC News.

 

“News that Preet has been asked to stay did come as somewhat of a surprise, because the SDNY U.S. Attorney job is an important position that I think a lot of Republican former prosecutors would want, but it's a very welcome surprise for those who care about public corruption issues," said Jennifer Rodgers, the executive director of the Center for the Advancement of Public Integrity at Columbia Law School.

 

“This shows Trump’s populist sense,” John Coffee, a professor of securities law at Columbia University, said of the decision to keep Bharara. “This means that they’re not going to turn away from insider trading or other Wall Street prosecutions.”

 

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.

 

“There is a tension between Obama’s strong efforts to reduce greenhouse gas emissions on the one hand and some of its lending activities abroad,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University.

 

Robert J. Jackson Jr., a professor at Columbia Law School who helped draft several provisions of Dodd-Frank while working for the U.S. Department of the Treasury, points out that the Financial Choice Act leaves large parts of Dodd-Frank virtually untouched, including the sections on corporate governance and executive compensation that he helped draft. “I think the incoming president and his administration will give banks more choices,” says Jackson.

 

[Intersectionality] was defined in an academic paper more than 20 years ago by the law professor and civil rights activist Kimberlé Crenshaw, now of UCLA and Columbia University. In it, she said her intention was “to deal with the fact that many of our social justice problems like racism and sexism are often overlapping, creating multiple levels of social injustice”. In a recent TED talk, Prof Crenshaw describes how she coined the term after coming across the case of an African-American woman who was turned down for an office job at a car manufacturing plant and then made a claim for both race and gender discrimination.

 

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