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 AMERICAN SOCIETY OF INTERNATIONAL LAW Newsletter: Notes from the President: Torturing the Law (Again)
BYLINE: José E. Alvarez
December 26, 2007
```This government does not torture people.’ President Bush, October 5, 2007. Wolf Blitzer: `So you think that this Administration has engaged in torture?’ Former President Jimmy Carter: ‘I don’t think so; I know it.` Televised Interview, October 10, 2007. These comments by President Bush and Former President Carter were occasioned by a report in the New York Times on October 4, 2007 that secret memos by Alberto Gonzales’s Justice Department dating back to February 2005 provided explicit authorization for the harshest interrogation techniques ever known to be used by the CIA, namely combinations of `painful physical and psychological tactics, including head-slapping, simulated drowning, and frigid temperatures.’ The new memos suggest that the much-touted efforts by Assistant Attorney General James B. Comey and others to renounce the infamous Yoo/Bybee `torture’ memos of 2002 had ephemeral effects – at least with respect to the CIA.’’
 THE NATION: The audacity of Oprah
Issue of December 24, 2007
BYLINE: Patricia J. Williams
``This Christmas, the film The Great Debaters will come to theaters nationwide. Starring Denzel Washington and produced by Oprah Winfrey, it tells the story of an award-winning team of debaters from Wiley College, a small, historically black institution founded in 1873 in Marshall, Texas. … The role of media, particularly the entertainment media, in allowing us to understand our civic life is not to be underestimated. … I say all this because I'm intrigued by the brouhaha attending Oprah Winfrey's decision to endorse Barack Obama's candidacy. The Internet is positively foaming at her decision to campaign for him. Celebrities – from Toby Keith to Sammy Davis Jr., from Barbra Streisand to Jon Bon Jovi – have always stumped for candidates, but a lot of people seem to feel that Oprah is different.’’
This column ran in the 12/16/07 issue of the Sacramento Bee.
 AMERICAN SOCIETY OF INTERNATIONAL LAW: President’s Column: Musharraf’s Legal Black Hole
BYLINE: José E. Alvarez
December 20, 2007
``General Pervez Musharraf’s November surprise inspires ambivalent reactions about international law’s progress. For those who have observed other leaders all over the world who have brazenly attempted, often successfully, to perpetuate their own tenures in office, Musharraf’s apparent bid to do the same is all too familiar. His declaration of a state of emergency last November 3rd, suspension of the Pakistani constitution, and proclamation of martial law seems to present yet another case of international law’s inefficacy. Once again, lawyers have been reduced to letter-writing and petitions, sympathy protests, and other ‘mobilization of shame’ tactics to respond to a basic (and obvious) assault on the right to democratic governance and human rights.’’
 FINDLAW: The EPA Versus the Department of Transportation: Three Puzzles in a Federal Court Ruling and the Pending Energy Bill
December 17, 2007
BYLINE: Michael C. Dorf
``Last week, two developments in environmental regulation called into question a number of familiar chestnuts about how best to make decisions whether and how to regulate national industries. First, a federal district judge rejected an industry challenge to California's proposed carbon emissions standards for automobiles, finding that a recent Supreme Court decision authorizes such regulations notwithstanding the fact that they are stricter than the federal standards promulgated by the Department of Transportation (DOT). Second, although oil and automobile industry lobbyists succeeded in killing some of the strictest regulations contained in the pending energy bill, they failed to strip the Environmental Protection Agency (EPA) of its authority to issue what are, in effect, gasoline mileage requirements. Congress is expected to pass, and President Bush is expected to sign, the bill later this week. Collectively, these decisions by all three branches of the federal government raise at least three questions going to the heart of regulatory policy in the American system of government: (1) Is it sensible to give different agencies within the federal government overlapping regulatory authority over the same subject matter? (2) Is it sensible to give the state and federal governments overlapping regulatory authority over the same subject matter? And (3) Are gas mileage requirements a better or worse means of demanding fuel-efficient automobiles than a steeper gasoline tax? After explaining the decision in last week's case, I will tackle these questions in turn. … Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.’’
 NATIONAL LAW JOURNAL: Achieving Transparency (subscription required)
December 10, 2007
BYLINE: JOHN C. COFFEE JR.
``Heads have rolled, huge write-downs have been taken, but still equilibrium has not returned to the debt markets. Unless the credit meltdown can be halted, a recession looms. Consumer spending has been recently responsible for roughly 70% of U.S. gross domestic product, and it is, in turn, financed today primarily through securitizations. Thus, destabilize the financing of consumer spending and the economy falters. So far, the response of policymakers has largely been to fashion accommodative monetary policies that will either bail out imperiled financial institutions or relieve overextended homeowners. Such policies may alleviate the symptoms, but they will not cure the liquidity crisis that is paralyzing the debt markets. By definition in a liquidity crisis, trading slows and prices become deeply discounted because most investors cannot determine the real value of the affected assets. Normally, the crisis ends only when the 'smart money' offers deeply discounted prices at which risk-averse holders are willing to sell their gridlocked securities. But little movement in this direction has been visible. … John C. Coffee Jr. is the Adolf A. Berle Professor of Law at Columbia Law School and director of its Center on Corporate Governance.’’
 FINDLAW: What's at Stake in the Latest Guantanamo Bay Case?
December 5, 2007
BYLINE: Michael C. Dorf
``The Supreme Court hears oral argument today in Boumediene v. Bush, which presents the question whether the Military Commissions Act of 2006 is unconstitutional. Boumediene is the third in a string of cases involving the scope of the right of habeas corpus for foreign detainees held at Guantanamo Bay. In the Court's two prior rulings--in Rasul v. Bush in 2004 and in Hamdan v. Rumsfeld in 2006--the Court invalidated Bush Administration policies regarding Guantanamo detainees. In those cases, however, the Justices managed to duck the question whether the detainees' constitutional rights were violated, relying on statutory and treaty grounds instead. Today's case squarely places the constitutional issue before the Court. … Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.’’
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FINDLAW: The U.S. Court of Appeals for the Ninth Circuit Dismisses a Challenge to Warrantless Wiretapping But Leaves Plaintiffs With a Sliver of Hope
November 19, 2007
BYLINE: MICHAEL C. DORF
``Last week, in Al-Haramain Islamic Foundation, Inc. v. Bush, the U.S. Court of Appeals for the Ninth Circuit ruled that the "state secrets privilege" forbids plaintiffs from going forward with their challenge to the National Security Agency's ("NSA's") warrantless wiretapping program. In order to make their case, the court ruled, the plaintiffs would have to rely on evidence that would compromise national security. Thus, the appeals court reversed a district court order that would have permitted the case to proceed based on recollections of a classified document, rather than the classified document itself.’’ … Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.
NEW YORK TIMES: Take Me Out to the Courtroom
November 18, 2007
BYLINE: JOHN C. COFFEE, JR.
``Buy yourself some peanuts and Cracker Jack, court fans, as a fascinating trial is coming. Can the government convict Barry Bonds of perjury? Will Mighty Casey strike out? Unless the government has an undisclosed eyewitness who saw Bonds receive injections or heard him admit to steroid use, this trial stacks up as a classic credibility contest.’’ … John C. Coffee Jr. is a professor at Columbia Law School.
NEW YORK LAW JOURNAL: Memo to Congress: Reform and Its Perils (subscription required)
November 15, 2007
BYLINE: JOHN C. COFFEE, JR.
``John C. Coffee, Jr., the Adolf A. Berle Professor of Law at Columbia University Law School and director of its Center on Corporate Governance, writes that we are now less than a year from the next presidential election and the likelihood that, for the first time since 1994, a Democratic president will be coupled with a Democratic Congress. For the securities bar, this means that "reform" securities legislation will once again be possible and even predictable.’’
NEW YORK TIMES: By Opting Out, Rodriguez Really Wants In
November 4, 2007
BYLINE: JEFFREY N. GORDON
``To the New York-centric sports fan, the most newsworthy event of the past week was not the Boston Red Sox’ sweep of Colorado in the World Series, but the decision of Yankees third baseman Alex Rodriguez to opt out of his contract to pursue the siren song of free agency. Indeed, the opt-out decision was announced during the final Series game, at virtually the earliest possible moment under the contract. Many believe that Rodriguez really means to leave the Yankees and has no class. From a bargaining perspective, however, the story up to now shows strong evidence of the reverse. Rodriguez wants to stay a Yankee — albeit after proving his open-market value — and has gone out of his way to make it possible for the Yankees to climb down from their posturing and match any offer.’’ … Jeffrey N. Gordon is the Alfred W. Bressler Professor of Law at Columbia University Law School.
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 LEGAL TIMES: Then They Came for Don Siegelman (free subscription required)
October 29, 2007
BYLINE: SCOTT HORTON
``On July 2, 2007, in the federal courthouse in Montgomery, former Alabama Gov. Don Siegelman, the most popular and successful Democrat in recent Alabama electoral politics, was sentenced to serve seven years and four months following a conviction on corruption charges. In a dramatic scene, the judge directed that Siegelman be handcuffed, shackled with leg irons, and perp-walked before waiting reporters. Motions for a stay pending appeal, routinely granted in such cases, were denied. Defense counsel were aghast.’’ … Scott Horton lectures at Columbia University Law School, works on military contractor issues for Human Rights First, and is a member of the board of the National Institute of Military Justice.
 WASHINGTON POST: The Smart Way to Shut Gitmo Down
October 28, 2007
BYLINE: MATTHEW WAXMAN
``In July 2005, I joined a group of senior policymakers at the White House for a review of administration policies on the U.S. military prison at Guantanamo Bay, Cuba. As we shuffled into the national security adviser's West Wing office, televisions nearby flashed with the ghastly news of a massive London subway attack that had the hallmarks -- coordination, skill and murderous imagination -- of an al-Qaeda strike. As the news sank in, one senior White House official spoke up. `It seems to me,’ he declared, to my astonishment, ‘this meeting is now irrelevant.’’’
Matthew Waxman teaches at Columbia Law School. He has served as acting director of the State Department's policy planning staff and, in 2004-05, as deputy assistant secretary of defense for detainee affairs.
FINDLAW: Harry Potter and the Framers’ Intent
October 22, 2007
BYLINE: MICHAEL C. DORF
``Speaking at Carnegie Hall last week, J.K. Rowling, author of the phenomenally popular Harry Potter series, revealed that Albus Dumbledore, the headmaster of the Hogwarts School of Witchcraft and Wizardry, is gay. Rowling explained that she was prompted to out the fictional Dumbledore when she noticed a reference to a female romantic interest of his in a draft of the screenplay for the planned sixth Potter film.If the film version of Harry Potter and the Half-Blood Prince makes Dumbledore's sexual orientation explicit, then that will settle the matter.…These principles may seem obvious enough when considering the relation of a fiction writer's intentions to her text, but they are highly contentious when it comes to legal documents. In the balance of this column, I will explain why James Madison is no more of an authority on the meaning of the U.S. Constitution, than J.K. Rowling is on Dumbledore's sexual orientation.’’
Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.
October 8, 2007
BYLINE: MICHAEL C. DORF
`` Last week, a federal court jury in New York City delivered a resounding verdict in favor of Anucha Browne Sanders, and against the New York Knicks. Browne Sanders had charged that Knicks President and former NBA great Isiah Thomas sexually harassed her during her tenure as a Knicks executive…. Judge Gerard Lynch (who also happens to be my Columbia Law School colleague) did not appear to err in any of his legal rulings, and the jury's conclusions on the facts were sufficiently supported by the evidence to receive substantial deference on appeal.
Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.
 THE NATION: Strange CultureOctober 5, 2007
BYLINE: PATRICIA J. WILLIAMS
``In May of 2004, Steve Kurtz's life was turned upsidedown. Kurtz, a founding member of an award-winning collective Critical Art Ensemble, was a tenured professor of art at SUNY Buffalo. His work and that of the Collective was of a kinetic conceptual sort, much of it aimed at informing audiences about the lack of regulation and potential risks of genetically modified food. Shortly before his show was set to open at Mass MoCA, a museum in North Adams, Massachusetts, Kurtz's wife of 20 years died in her sleep of natural causes. When emergency medical technicials responded to his 911 call, they saw in his home petri dishes--part of scheduled installation--filled with harmless bacterial cultures. They called the FBI. At that point, the nation was still reeling from the 2001 anthrax scares that had shut down everything from Congress to the Supreme Court to the New York Post. Kurtz was detained on suspicion of bio-terrorism.’’
Patricia J. Williams is the James L. Dohr Professor of Law at Columbia Law School.
 FINDLAW: The Senate Approves the "2007 Mental Health Parity Act": Achieving Equal Treatment for the Mentally Ill
BYLINE: SHERRY F. COLB
October 1, 2007
``On September 18, the Senate unanimously approved the proposed "2007 Mental Health Parity Act." The legislation, if passed, would require group health plans of employers (of 50 or more employees) offering mental health coverage to provide the same level of benefits for mental conditions as they do for other medical conditions. President Bush has promised to sign such a bill. If enacted, this law would represent a significant development, both concretely and symbolically.’’ … Sherry F. Colb, a FindLaw columnist, is a Visiting Professor at Columbia Law School.
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September 27, 2007
BYLINE: TIM WU
``It's hard to dislike the idea of free municipal wireless Internet access. Imagine your town as an oversized Internet cafe, with invisible packets floating everywhere as free as the air we breathe. That fanciful vision inspired many cities to announce the creation of free wireless networks in recent years. This summer, reality hit—one city after another has either canceled deployments or offered a product that's hardly up to the hype. In Houston, Chicago, St. Louis, and even San Francisco, once-promising projects are in trouble. What happened—was the idea all wrong?’’ … Tim Wu is a professor at Columbia Law School and co-author of Who Controls the Internet?
FINDLAW: The Supreme Court and the Butterfly Effect
September 24, 2007
BYLINE: MICHAEL C. DORF
``Next week, the Supreme Court begins its third Term with John Roberts in the Chief Justice's seat. Court watchers wonder whether Roberts will be able to build on a string of 5-4 conservative victories last Term, and thus consolidate a conservative majority. How the Court decides the cases on its docket will, of course, have profound consequences for the parties involved and for those subject to the rules of law it lays down. Yet Supreme Court decisions can also have consequences well beyond the parties and principles directly involved.’’ … Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.
September 19, 2007
BYLINE: SHERRY F. COLB
``Prosecutors allege that Jeff forced a 14-year-old girl to marry her older cousin, who subsequently forced the girl to have intercourse with him. …Jeffs’s arrest could signal a new willingness on the part of our public institutions to prioritize children’s rights over absolute religious prerogative. It could also …highlight a dark side to polygamy - one that belies the claims of those who defend it as a `private’ matter between consenting adults.’’ ... Sherry F. Colb, a FindLaw columnist, is a Visiting Professor at Columbia Law School.
 NATIONAL LAW JOURNAL: TAXATION OF DAMAGES: End the inequity
September 17, 2007
BYLINE: VIVIAN BERGER
``House and Senate committees are considering the Civil Rights Tax Relief Act of 2007. The CRTRA would remedy anomalies in the treatment of damages obtained by employment discrimination victims and other civil rights plaintiffs, which disadvantage them by comparison with victims of physically injurious torts. A section of an earlier version, enacted in 2004, went part way toward rejecting this harsh approach by ending taxation of attorney fees to both the lawyer and the client. Congress should finish the job this session. Passage of the two remaining provisions — one dealing with noneconomic, the other with economic harm — would aid both workers and defendant companies while striking a blow for tax equity.’’ … Vivian Berger, an NLJ columnist, is professor emerita at Columbia Law School.
FINDLAW: The Homage Vice Pays to Virtue: Lessons of the Michael Vick Story
September 10, 2007
BYLINE: SHERRY F. COLB
``Atlanta Falcons quarterback Michael Vick recently pleaded guilty to a federal dog-fighting charge. … A case such as this leaves me torn between two competing emotions. I am pleased to learn that people are taking animal cruelty seriously enough to want to punish a previously-popular figure and thereby express outrage at the inhumane world of dog-fighting. Yet I am disturbed by the utter failure of most people condemning Michael Vick to consider their own role in perpetrating animal cruelty.’’… Sherry F. Colb, a FindLaw columnist, is a Visiting Professor at Columbia Law School …
 LEGAL TIMES: What Does DOJ Need Now?
September 3, 2007
BYLINE: NICHOLAS M. GESS and JAMES E. TIERNEY
``The next attorney general of the United States will inherit a Department of Justice demoralized by the sidelining of career lawyers who have dedicated their lives to fair law enforcement. Too often replaced by inexperienced political appointees, many senior lawyers in both the criminal and civil divisions, lawyers who have guided former attorneys general of both parties, have retired. Although this administration has precious little time to bring real change, some measures must be undertaken immediately.''
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