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Columbia Law School In The News Faculty In The News Archives: Summer 2001 Prof. Cynthia Estlund was recently mentioned in an article entitled, "Management." There is a new online training program in the workforce, developed by Littler Medelson, an employment law firm, and Employment Law Learning Technolgies, and employment-law training company, to teach employees and managers about workplace dos and don’ts. Workplaces are discovering a bigger advantage in using computers to educate their workers about policies against sexual harassment and age and racial discrimination: as a shield against unwanted lawsuits. Prof. Estlund states that such training is a strong "affirmative defense" to lawsuits. "The employer can escape liability for the conduct of supervisors and probably also peers, if it can show that the employer acted reasonable to prevent and remedy or deal any claim of harassment, and that the employee did not act reasonable." The New York Times, August 6, 2001. Prof. James S. Liebman’s death penalty study was mentioned in an article entitled, "A Deadly Serious Argument; Opponents of the Death Penalty have Shifted their Strategy of Attacking the Practice on Moral Grounds to Take a More Practical Approach, Such as Pointing Out Flaws In the System." Statistics recently show that in death penalty cases, more death convictions are imposed due to incompetent defense lawyers, prosecutorial misconduct and defendants’ lack of access to DNA testing and other scientific evidence. Prof Liebman’s study shows that two out of three death sentences were overturned on appeal. The Buffalo News, July 30, 2001. Prof. Eben Moglen was mentioned in an article entitled, "Broadcasters Must Pay Webcast Royalties, Judge Rules." Broadcasters must pay royalties to musicians and record labels when they stream AM and FM radio content over the Internet. Prof. Moglen states, "Today’s ruling, a clear RIAA victory, is also a crucial one. What happened was that the NAB screwed up. In the 21st century, there (will be) no such thing as broadcasting. There is only streaming." Post-Newsweek Business Information, Inc., August 2, 2001. Prof. John C. Coffee was mentioned in an article entitled, "It’s Meeker’s Turn - Amazon, eBay Holders Taking Aim with a Suit," a class action suit on behalf of Amazon and eBay shareholders was filed by Philadelphia law firm Schiffrin & Barroway The allegations against Mary Meeker, an internet guru, and her company, Morgan Standley are that she pumped up Internet stocks so that her company could land lucrative underwriting gigs. The suit states that investors purchased stock at inflated prices from August 1, 1998 through January 22, 2001, thanks to Morgan Stanley not disclosing all the facts. Prof. Coffee states, "Congressional hearings on Tuesday reported that analysts were presented as impartial umpires but were compensated like cheerleaders. It’s not a big surprise that the next day, some law firm goes after the best known of the Internet gurus." The New York Post, August 2, 2001. Prof. Alejandro Garro was mentioned in an article entitled, "Promoting Truth as Antidote in a World of Brutality." The article takes a look at Priscilla B. Hayner, the program director for the International Center for Transitional Justice. Hayner has written a probing, comparative study on truth commissions, "Unspeakable Truths," and advises nations emerging from conflict on how to navigate between truth and justice. Prof. Garro has followed Hayner’s work, and calls it unique. The Washington Post, August 3, 2001.Prof. Richard Uviller was recently mentioned in an article entitled, "Tobacco Giant Cites Plaintiff’s Credibility; Courts: Phillip Morris Says Smoker’s Criminal Record Should Have Been Considered by Jury that Awarded Him $3 Billion." Phillip Morris is trying to reverse a $3 billion courtroom defeat against Richard Boeken, a smoker who accused Phillip Morris of withholding crucial information regarding the critical nature of smoking. Phillip Morris states that the credibility of the plaintiff should have been considered in the case, arguing that Mr. Boeken lied to the court to collect compensation on non-supported evidence.. They requested the judge throw the case out due to the fact that Mr. Boeken had a previous criminal record of wire fraud, stolen property and possession of heroin, and his credibility was questionable. According to legal experts, evidence of convictions that involve dishonesty or false statements is often admitted for the purpose of impeaching witnesses. Prof. Uviller states that federal rules of evidence basically require that such information be admitted. Its exclusion in the Boeken case could be "a very strong point on appeal, because credibility appears to be critical in the case." Los Angeles Times, July 29, 2001. Prof. John C. Coffee was recently mentioned in two articles:
Prof. Jeffrey Fagan was mentioned in an article entitled, "States Adjust Adult Prisons To Needs of Youth Inmates." Like dozen of states in the 1990's, Nevada was a part of a movement to crack down on juvenile crime by making it easier to punish teenagers as adults. And in response to the tens of thousands of offenders under the age of 18, adult jails and prisons have taken steps to cope with the special needs and dangers of adolescents in an adult correctional population. In certain states, officials have created special provisions for adolescents. Prisons are segregating youthful inmates, even changing menus and adding meals to meet the nutritional needs of teenagers. Prof Fagan states, "Even with these fixes to adult corrections, adolescents will still spend years in tough, violent institutions where the prison culture will shape their views of themselves and their futures. They still will return home with the stigma of a felony conviction record that will block their way into the workplace, making it very difficult for them to stay out of prison." The New York Times, July 25, 2001. Prof. John C. Coffee was recently featured on ABC News, "World News Tonight with Peter Jennings." The headline, "Merrill Lynch settles lawsuit", takes a look at a settlement that Merrill Lynch, the nation’s largest financial service, made to an investor who says he lost a fortune on the tainted advice of the firm’s star analyst. Merrill Lynch is paying the investor $400,000, stating that they admit no fault, only the matter will avoid the expense and distraction of protracted litigation. Prof. Coffee states, "Arbitration is an unpredictable process. It’s not like courts where one precedent binds other courts. Frankly, there’s been very little disclosure by most analysts the kind of conflicts their subject to." ABC News, July 20, 2001. Prof. John C. Coffee was recently mentioned in an article entitled, "Merrill Settlement May Spur Copycat Lawsuits Over Losses." With the lawsuit agreement to pay $400,000 to a former disgruntled client, Merrill Lynch, the nations’ largest financial service, may inspire more claims, especially among wealthy clients with heavy losses. Merrill’s former investor says he lost a fortune on the misleading advice of their top analyst, advice that recommended a stock without disclosing a conflict of interest. The settlement that Merrill agreed to pay out to their former client, although they admit to no wrongdoing, could inspire claims from more disgruntled investors looking for scapegoats and financial redress. Prof. Coffee states, "Copycat litigation is a very frequent event. This particular success is likely to draw a lot of imitation. There are a lot of other investors who can say the same thing as this investor did." The Chicago Tribune, July 22, 2001. Vice Dean and Prof. Richard Briffault was mentioned in an article entitled, "Second-home Owner Out to Get A Second Place to Vote." Harold M. Wit, a New York Investment banker is using his considerable means to create a new right to vote. Although he resides in New York State, he has summered at the same alternate location for 32 years. Along with the help of Prof. Briffault, Mr. Wit has been laboring for more than a year to challenge state election laws in New York and across the country. The suit was dismissed last fall, but is scheduled for argument in August or September before the 2nd U.S. Circuit Court of Appeals. "Wit wants to show that this is not just a rich person’s claim," said Prof. Briffault, the vice dean and Joseph P. Chamberlain professor of legislation at Columbia University School of Law, who will argue the case before the appeals court. "This suit is about what should happen when constitutional law meets evolving demographic reality." The Chicago Tribune, July 15, 2001. Prof. Richard N. Gardner was mentioned in an article entitled, "U.S. Opposition to Tribunal Worries European Supporters." The European Union, who supports an International Criminal Court, fears that the Bush Administration opposition towards the court could delay its necessary ratification. The court must be ratified by 60 national legislatures before it can operate. The international tribune would be the first to deal with crimes such as genocide, war crimes and crimes against humanity. Republicans and some leading Democrats are wary of the ratification of the treaty for fear it could lead to capricious arrests of American officials or members of the armed services abroad. So far, 36 of the 139 nations that signed the treaty have ratified it. The United States signed the treaty last Dec. 31, under the Clinton Administration. The Bush Administration refuses to send the treaty to the Senate for ratification, and has also asked the United Nations for legal advise on how to withdraw its signature. Prof. Gardner call the court, "a bridge too far" for Americans. He states that it is unrealistic to lobby for the court in the United States, "given that the leadership of the Republican Party has migrated from the North to the South, and given that the United States is the world’s residual peacekeeper." He advocates more effort at ratification of other treaties with less opposition in the United States. The New York Times, July 14, 2001.Prof. James S. Liebman’s "A Broken System" was mentioned in an article entitled, " Influential voices add to US debate on execution." For the first time in three decades, there is serious national discussion in the US about the death penalty and the manner in which it is applied. "Since 1973, 96 on death row have been exonerated, including six last year, according to the Death Penalty Information Center. The courts eventually find errors and overturn 68 percent of capital punishment cases, according to a Columbia Law School study last year." The Irish Times, July 14, 2001. Prof. Eben Moglen was quoted in an article entitled, "Sayings." On the Appeals Court split verdict in the Microsoft Antitrust case, he states, "This is now a case that never ends." The San Francisco Chronicle, July 1, 2001. Prof. Michael Dorf was mentioned in an article entitled, "Court Rebounds from Bush v. Gore." In the Bush v. Gore decision last December, Supreme Court Justice John Paul Stevens warned of damage to the stature of the US Supreme Court. Nonetheless, public confidence in the nation’s highest court had rebounded. Sixty-two percent of Americans approve of the way the court is handling its job. This is the same percentage that approved in September 2000, three months before the Bush v. Gore decision. Prof. Dorf states, "All of the justices have tried to protect an image of life is back to normal within the Supreme Court, which suggests to me that things have gotten pretty divisive in there. As far as the general public goes, people have moved on." The Christian Science Monitor, July 2, 2001. Prof. Samuel Issacharoff was mentioned in an article entitled, "Election Opinion Defines Justices; Supreme Court Reflects Deep Divide." The Supreme Court term that ended last week had its share of important cases with long-term significance and practical effects. For the next several years, it will be remembered almost exclusively for Bush v. Gore and a 5-4 ruling that decided the presidency. Prof. Issacharoff states, "In the past several years, we’ve had areas of the law that have come to define the work of the court. But in no instance has one case so dominated the court’s agenda and public perception of the court as Bush v. Gore. I think it’s without parallel going back to Roe, probably to Baker vs. Carr in 1964 and maybe even to Brown vs. Board of Education in 1954." The Baltimore Sun, July 2, 2001. Prof. Harvey Goldschmid and Prof John C. Coffee were mentioned in an article entitled, " GE Takes Chance On Acquisition; Experts Say Honeywell Deal Is Flawed." Legal experts say that General Electric’s proposed takeover of Honeywell International Inc., is best terminated to avoid a precedent-setting rejection by European regulators. A rejection would establish General Electric dominant in certain industries, therefore prompting greater European scrutiny of GE acquisitions. Prof. Goldschmid states, "The trick for GE is to end the merger as cleanly as possible." Prof. Coffee states, "Someone can always sue, but I don’t think that will be Honeywell’s focus. They’ve got to decide what they want to do vis–vis United Technologies– whether they want to stay independent or be on the auction block." Sun-Sentinel, July 3, 2001. Prof. Carol Sanger was mentioned in an article entitled, "Among Nuptial Agreements, Post - Has Now Joined Pre-." Prof. Sanger states, "It can be hard to tell whether postnups are a step toward divorce or not. In some cases, it may be, ‘We’ll get a postnup and live happily ever after.’ But I think it’s often ‘Let’s get a postnup, wink, wink, so I can get everything locked down.’ Legally, it’s a little like a prenup, but the stakes are higher, since the parties are already married. And it’s a little like a divorce settlement agreement, but that’s more clearly adversarial. It’s really an unchartered area, and all the states are trying to figure it out now." The New York Times, July 7, 2001. Prof. James Liebman’s death penalty study was referenced in an article entitled, "A Capital Defense?; Are Court Appointed Lawyers in Virginia Providing a Quality Defense in Trials Where the Lives of Their Clients Are At Stake? It’s a Common Complaint Not Easily Proved And It’s an Issue That May Get a lot of Attention This Year." In the story of a murder of 87 year old Annie V. Lester, by convicted murderer, James Edward Reid, his court appointed lawyers put up no defense, and placed the fate of Reid’s life in the hands of Montgomery County Circuit Court Judge Ray Grubbs rather than a jury. Grubbs sentenced Reid to death. James C. Turk, Jr., one of Reid’s lawyers today, states that Reid had a defense. He was brain damaged and so drunk when he committed the crime that it could be argued he was incapable of premeditation. Capital punishment opponents and defense experts believe that, if Reid had been represented by more experienced lawyers, it is likely he would not be on death row today. They argue that Reid’s is yet another case demonstrating that Virginia does not provide adequate defense counsel to indigent capital murder defendants. Prof. Liebman’s death penalty study shows that between 270 and 300 people are condemned to die in state courts. From 1973 to 1995, almost 70% were overturned by appeals courts due to serious flaws. The Richmond Times-Dispatch, June 24, 2001. Prof. Eben Moglen is mentioned in an article entitled, "Tasini Ruling: Will It Impact Digital Music?" A U.S. Supreme Court decision ruled 7-2 in favor of freelance writer Jonathan Tasini, saying that publishers must seek the permission and compensate writers if freelance articles are resold to online databases like Lexis Nexis - provided that the writers’ initial work contracts did not specifically grant e-publishing rights up. Post-Newsweek Business Information, Inc. Newsbytes, June 26, 2001. Prof. Richard Briffault was mentioned in an article entitled, "Court Backs Finance Limits; Campaign Spending Restrictions Upheld by Justices in 5-4 vote; Soft Money Not Addressed; Opinion Could Boost Congressional Efforts to Overhaul Laws." In Washington, the Supreme Court upheld a key provision of campaign finance law, ruling that limits on the amount of money political parties may spend in coordination with their candidates do not violate the First Amendment. In a 5-4 decision, the court said that restrictions on the money the parties spend in concert with candidates are necessary to enforce other provisions of campaign finance law, specifically the limits on how much an individual or group can contribute to a candidate. Prof. Briffault said the decision was import for what it did not do. If the Justices struck down the limits on coordinated spending, "it would have been difficult, if not impossible, to do anything on soft money." The Baltimore Sun, June 26, 2001. Prof. John C. Coffee was mentioned in an article entitled, "Reining In The IPO." Securities and Exchange Commission investigators have been probing several top banks over their IPO allocation practices. Congressional hearing are scheduled to take place on IPO allocations as well as potential conflicts of interest among investment banks’ research analysts. It will take several months to sort out who has acted inappropriately, and if evidence of wrong doing emerges, the SEC could push for new regulations. Prof Coffee states, "The SEC does not spend that much time and limited resources without wanted proof they have been successful." The Industry Standard, June 25, 2001. Prof. Eben Moglen was mentioned in an article entitled, "End of an Affair?" On June 7th, four hackers released a software program that threatens to do for TV shows what Napster did for music and DivX may do for movies. The code, called ExtractStream, allows users of TiVo digital video recorders to move compressed copies of television shows from their beloved boxes into their computers. Prof. Moglen states that what ExtractStream is doing is probably not illegal. "They’re in the land of copyright infringement. And it’s not Napster because they don’t have control over how many people use the software. It’s in the domain with copy machines, technologies that can be used to break the law but which are generally allowed." Salon.com, June 20, 2001. Prof. Samuel Gross was mentioned in an article entitled, "Death Penalty Foes Fault Justice Study." Five days before the execution of Oklahoma City bomber Timothy McVeigh took place, Attorney General John Ashcroft unveiled a Justice Department study showing that, contrary to popular perception, whites like McVeigh were actually more likely than minorities to face the death penalty once they were charged. Death penalty opponents, and many criminal justice experts, said that Ashcroft and the Bush administration are playing politics with the death penalty by focusing on statistics that support their position while ignoring those that undermine it. The Justice study, which covered 1995 to 2000, showed that once people were charged with a federal capital crime, race seemed to have little effect on whether they faced the death penalty. Criminologists said this study revealed little about why such a large proportion of inmates who face federal prosecution are black or Hispanic. Prof. Gross states that "nothing had changed." He comments, "I’m not saying there’s proof of racial bias, but that there’s no real information in this report that matters at all." The Washington Post, June 19, 2001. Visiting Prof. Samuel Gross was mentioned in an article entitled, "Senate Panel Hears Testimony on Death Penalty Disparities." In Washington, a week after Attorney General John Ashcroft declared that there is no evidence of racial or ethic bias in the use of federal death penalty, his remarks continue to provoke consternation on Capitol Hill. Prof Gross contends that further analysis is required to explain the cause of persistent racial and geographical disparities. Most graphically manifested composition of federal death row, where 17 of the 19 convicts are minorities, more than half of them dispatched there by just two states; Texas and Virginia. The Senate Democrats and several witnesses at a congressional hearing regarding recently executed Hispanic murder from Texas concludes that it is far too early to make such a sweeping pronouncement. Prof. Gross states that their conclusion is "premature and not based on fact." The Dallas Morning News, June 14, 2001. Prof. Katherine Franke was mentioned in an article entitled, "Making a Case For the Right To Be Different." The New York Times, June 16, 2001. Prof. John C. Coffee was mentioned in two different articles:
Prof. Eben Moglen was mentioned in an article entitled, "War of Words Erupts Over the Free-Software Movement." The article talks about the constant battle between Microsoft Corporation and the backers of open-source and free software. Emblematic of the movement is GNU-Linux, the open-software operating system that has emerged as a competitor to Microsoft’s Windows. Prof. Moglen stated, "Microsoft, which used to say all the time that the software business was ruthlessly competitive, is now matched against a competitor whose model of production and distribution is so much better that Microsoft stands no chance of prevailing in the long run. They’re simply trying to scare people out of dealing with a competitor they can’t but, can’t intimidate and can’t stop." The International Herald Tribune, June 5, 2001. Prof. Richard Gardner bylined an article entitled, "Foreign Policy on the Cheap: Cuts in the US Federal Budget for International Affairs Put Americans and the World at Risk." The article takes a look at tax cuts recently approved by the US Congress and how that will have a devastating effect on American foreign policy, threatening the quality of life and future generations both in the US and in the rest of the world. Financial Times, June 8, 2001. Prof. George P. Fletcher was quoted in an article entitled "Hofstra Death May Be Made Capital Case." Prosecutors in Nassau County are considering upgrading the charges against Shaun T. Alexander, who is accused of killing Max B. Kolb, his classmate at Hofstra University, from second-degree to first-degree murder. Prof. Fletcher states that "The possibility of the death penalty is often important in pursuing a plea bargain, not necessarily because a prosecutor actually plans to pursue it." The New York Times, May 23, 2001. Prof. James S. Liebman was mentioned in several articles, along with visiting Columbia Law School Prof. Jeffrey Fagan. The articles focus on the death penalty and the suspended death date of convicted terrorist, Timothy McVeigh. McVeigh’s execution was delayed because the FBI failed to provide more than 3,000 documents to his defense attorneys before trial began. The errors found, raise doubts about other capital cases. Prof. Liebman, along with the aide of Prof. Fagan conducted a death penalty study, showing that between 270 and 300 people are condemned to die in state courts. From 1973 to 1995, almost 70% were overturned by appeals courts due to serious flaws. The Washington Times, May 15, 2001. USA Today, May 16, 2001. Wisconsin State Journal, May 16, 2001. The Courier-Journal, May 17, 2001.Visiting Columbia Law School Prof. Jeffrey Fagan wrote an editorial to the New York Times published on May 18, 2001. Professor and Vice Dean Michael Dorf was quoted in an article entitled, "Gun Law in Focus as NRA Gathers." As the National Rifle Association kicked off its annual convention in Kansas City, new battle lines formed. Debate on the Second Amendment - The Right to Bear Arms, is being looked at more closely, and whether the original intentional definition of the Right to Bear Arms was collective or individual. At least two U.S. Supreme Court justices, Clarence Thomas and Antonin Scalia, already hinted at the readiness to expand the definition of the Second Amendment. Prof. Dorf stated, "The evidence of the framer’s original intent is mixed. But courts very rarely base their decisions solely on what the framers meant to say in 1791." The Kansas City Star, May 18, 2001. Prof. Harvey Goldschmid was mentioned in several articles regarding the naming of Harvey Pitt, a prominent securities lawyer, on becoming the next chairman of the Securities and Exchange Commission. President Bush is set to name Pitt as chairman, and if confirmed, will replace the position once held by Arthur Levitt, Jr.,a democrat, who recently stepped down from the position of chairman in February after serving for nearly eight years. Prof. Goldschmid states that Pitt has the credentials to be acting chairman, but following in Levitt’s steps in a difficult task to do. "Arthur had a wonderful passion for the individual investor and for investor protection. I don’t think Harvey will bring that instinct to the same degree. I don’t know anyone who would." However, "he (Pitt) has great talent and experience, you couldn’t find better. The only issue is whether he can make the transition from being an enormously effective advocate of clients to being a public official. We’ve got to wait and see." The New York Times, May 8, 2001. The Los Angeles Times, May 9, 2001. Investor’s Business Daily, May 10, 2001. USA Today, May 11, 2001.Prof. James S. Liebman was mentioned in two articles regarding his death penalty study. Nearly twenty-five years since the U.S. Supreme Court reinstated the death penalty, capital punishment remains an integral part of the administration of justice in America. "Thirty-eight states have laws allowing the death penalty, and 712 convicted murderers have been put to death since 1976." Now, "six days before Timothy McVeigh is scheduled to be executed for the Oklahoma City bombing, the Justice Department yesterday gave his attorneys thousands of pages of FBI documents that officials said were mistakenly withheld before McVeigh’s 1997 trial." The development is the first potential obstacle in Wednesday’s execution, and some are arguing the execution should be delayed while these documents are further examined. "In his study, published last year, Prof. Liebman reviewed the appeals of 5,760 inmates sentenced to death by state courts between 1973 and 1995, and found that two-thirds of the appeals resulted in new trials. In a significant percentage of overturned convictions, Liebman said, the main problem was the failure of law enforcement authorities to turn over important documents to defense lawyers before trial." Even though Prof Liebman thinks that McVeigh’s situation is different, and that his case "would have to be up to the discretion of the judge," he also feels that, "There’s a pretty dramatic rethinking going on right now." The Washington Post, The Philadelphia Inquirer, May 11, 2001. Prof. John C. Coffee, Jr. was mentioned in an article entitled, "The Lawyers Want a Piece Too." Just recently, a flurry of lawsuits have sought compensation for initial public offerings (IPO) that allegedly benefitted favored clients and the bankers at the expense of less influential investors. Prof. Coffee states, "The IPO market is basically manipulated by a bunch of factors causing supply to be so constrained. Anyone who gets an IPO allocation is essentially receiving free money." The Industry Standard, May 21, 2001. Prof. H. Richard Uviller was mentioned in an article entitled, "In Wendy’s Massacre, Suspect is Charged in the Death of Only Woman Killed." Nearly a year after the killing of five workers at a Wendy’s in Flushing, Queens, a grand jury recently charged a man, already accused in the slaying, with shooting the only woman among the dead. The man accused, John, B. Taylor, states that he was not the one who killed Ms. Anita C. Smith, 22. Prof. Uviller said Mr. Taylor may be genuinely uncertain about what happened that day at Wendy’s. "It was in the basement and you can imagine how loud the shots were and how disorientating the whole scene must have been." Prof. Edward Lloyd was mentioned in an article entitled, "Hitting the Ground Limping; For Whitman, Chaos in Her Wake and Sharp Elbows in Her Future." When New Jersey governor, Christie Whitman recently came to Washington, D.C. to run the Environmental Protection Agency, her authority was undercut by President Bush, who was in fact, the one who originally lured her there. Mrs. Whitman, weeks earlier, had declared that President Bush intended to fulfill a campaign pledge to lower carbon dioxide emissions from power plants, only to find that the president had decided against that policy without telling his chief environmental overseer. The White House also recently contradicted a claim she made on National television that the administration might back away from its plans to open up the Arctic National Wildlife Refuge to oil drilling. Prof. Lloyd, in regard to Mrs. Whitman’s new job, "She is certainly good in open space. That is what she is best known for in the environmental area. On the regulatory side, there is a very different story to tell." The New York Times, May 6, 2001. Columbia University President, George Rupp, announced he will be stepping down following the 2001-2002 academic year. The University Wire, May 2, 2001. Archives
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