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 NEW YORK REVIEW OF BOOKS: Where Shall the Preaching Stop?
Issue of May 15, 2008
BYLINE: Kent Greenawalt
“Liberty of Conscience: In Defense of America's Tradition of Religious Equality by Martha C. Nussbaum … How should religious beliefs and organizations figure in our political life? At no time in recent memory has this question aroused the passion it does now, thanks to a president who reiterates the importance of his evangelical Christian beliefs and to the Supreme Court's recent far-reaching changes in the interpretation of the First Amendment's guarantee—in the Establishment and Free Exercise Clauses—that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’”
 NEW YORKER: Talk of the Town: Fan Feud
Issue of May 12, 2008
BYLINE: Tim Wu
“Once upon a time, a talented weaver named Arachne declared herself superior in skill to Athena, the goddess of wisdom, who also invented weaving. Whether Arachne was actually better we’ll never know, for Athena, in a jealous rage, destroyed her rival’s tapestry and turned her into a spider. Last summer, at a ‘Harry Potter’ convention in Toronto, a fan named Steve Vander Ark made a similar mistake when he dared to compare himself to Joanne (J. K.) Rowling. ‘It is amazing where we have taken ‘Harry Potter,’ ’ he said to a crowd of dedicated ‘Potter’ fans. Many readers dislike the epilogue in the final book; Vander Ark urged them to disregard it entirely, and even invented his own spell to do so (‘expelliepilogus’). ‘Jo’s quit, she’s done,’ he told the audience. ‘We’re taking over now.’ Comparing yourself to a living god can be risky, and Vander Ark has suffered cruel fates, in court and in the world of ‘Potter’ fandom. … Tim Wu (The Talk of the Town, p. 42) is a professor at Columbia Law School.”
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 FINDLAW: How the Supreme Court's Lethal Injection Ruling Elevates Appearances Over Reality
April 21, 2008
BYLINE: Michael C. Dorf
“Last week, in Baze v. Rees, the U.S. Supreme Court rejected a constitutional challenge to Kentucky's administration of the death penalty via lethal injection. To say that the case divided the Justices would be a gross understatement. There was no opinion for the Court as a whole, and the nine Justices wrote a total of seven separate opinions. In the short term, the Baze decision will result in the resumption of executions, which had been subject to a de facto moratorium since the Court agreed to hear the case. In the long term, the decision's likely impact is unclear. … Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.”
 FORT WORTH STAR-TELEGRAM: Is that inheritance racially tainted?
April 15, 2008
BYLINE: Katherine Franke
“No one enjoys preparing, let alone paying, taxes. But this time of year offers us an opportunity not only to complain about taxes but to think about why we pay them and for what. Paying taxes today funds the budget for next year, but our progressive tax structure implements a fundamental value in American society: It redistributes wealth from the most fortunate to those who are least well off. Warren Buffet recently testified before Congress that the heirs of the wealthy should be taxed, and taxed quite heavily, on their inheritance. Buffett, ranked No. 2 in Fortune magazine's list of the wealthiest Americans, has unique moral authority to argue against the consolidation of wealth in a U.S. aristocracy. But the richest men and women on the Fortune 400 list shouldn't be the only ones speaking out. My peers -- white middle- and upper-class baby boomers who stand to inherit nicely from our parents -- also ought to weigh in on this debate. … Katherine Franke, a professor of law at Columbia University, has just completed Emancipation Approximation, a book on the enduring relevance of the incomplete abolition of slavery in the United States."
 MS. MAGAZINE: A Preference for Deception
Winter 2008
BYLINE: Kimberle Crenshaw
“RUTHIE STEVENSON WAS ON HER WAY TO THE POST OFFICE IN Mt. Clemens, Mich., when she was asked to sign a petition to “make civil rights fairer for everybody.” The circulator named the president of the local NAACP as a supporter. This would have been surprising, since the petition—known euphemistically as the Michigan Civil Rights Initiative—sought to amend the Michigan constitution to eliminate all affirmative-action programs in the state. Moreover, Stevenson knew firsthand that fraud was afoot: She was the president of the local NAACP, and had certainly never lent her support. … KIMBERLE CRENSHAW is a professor of law at Columbia and UCLA Law School, and directs the African American Policy Forum (www.aapf.org), which advances social justice through public education initiatives."
FINDLAW: A Small Religion Brings a Big First Amendment Question to the Supreme Court: When Does Private Religious Speech Become Government Speech?
April 7, 2008
BYLINE: Michael C. Dorf
“Last week, the Supreme Court agreed to review a ruling of the U.S. Court of Appeals for the Tenth Circuit, granting a small religious organization the right to place monuments in two city parks in Utah. The unusual case of Summum v. Pleasant Grove City sits awkwardly at the intersection of three First Amendment doctrines: (1) the doctrine establishing the rights of speakers, including religious speakers, in a so-called ‘public forum’; (2) the doctrine delineating government's ability, as a speaker itself, to control the content of its message; and (3) the doctrine concerning limits that the Establishment Clause places on government favoritism among religious messages. … Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.”
SLATE: Tech Policy
April 1, 2008
BYLINE: Tim Wu
“Perhaps the only thing that's actually improved over the last eight years under President Bush is technology (if not tech policy). In the sense that Nixon presided over an age of great films like The Godfather, the Bush era was also the age of Wikipedia, search engines, YouTube, and Facebook. But the Bush system of benign neglect can only go so far, leaving plenty to fix as soon as the next president takes office. … Tim Wu is a professor at Columbia Law School and co-author of Who Controls the Internet?”
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FINDLAW: With the Supreme Court Poised to Redefine the Right to Bear Arms, Far-Reaching Questions Loom
March 24, 2008
BYLINE: Michael C. Dorf
“Last week, the Supreme Court heard oral argument in District of Columbia v. Heller. The case presents the question whether the District's law banning nearly all handguns, and regulating the storage of licensed shotguns and rifles, violates the Second Amendment. To resolve that question will require the Court to enter a long-simmering debate among academics and activists. … Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.”
 NEW YORK LAW JOURNAL: The Spitzer Legacy and the Cuomo Future
March 20, 2008
BYLINE: John C. Coffee Jr.
“For Eliot Spitzer, the Ides of March came early. In probably the most extreme example of self-destruction in American political history (only Abe Fortas’s departure from the Supreme Court comes close), he has ended his political career. But his legacy remains, even if it will be debated. His major achievements were his exposure of serious conflicts of interest across a variety of contexts. Many will now mock these achievements, but wiser heads should recognize their substance. Moreover, the same battles that he fought as Attorney General are now again surfacing under his successor, Andrew Cuomo. Arguably, it’s déjà vu all over again. … John C. Coffee Jr. is the Adolf A. Berle Professor of Law and director of the Center on Corporate Governance at Columbia University Law School.”
NATIONAL LAW JOURNAL: The Securitization Bubble (subscription required)
March 17, 2008
BYLINE: John C. Coffee Jr.
“As the subprime mortgage meltdown spreads and infects other related markets, two questions stand out: Why did the securitization process fail so badly? And what would it take to make securitized financings viable again? In short, can mortgage-backed structured finance be saved? Clearly, the default rates on mortgage-backed securities spiked in 2007. But what caused this unprecedented increase? Was fraud -- whether in the form of inflated appraisals, predatory lending or manipulated credit scores -- a central factor?”
 FOREIGN POLICY: The Plastic Revolution
Issue of March/April 2008
BYLINE: Ronald J. Mann
"As the rich world knows all too well, credit cards are as dangerous as they are convenient. With millions of consumers from China to Mexico filling their wallets with plastic, the risks are mounting as fast as people can say, 'Charge it!' ... Ronald J. Mann is professor of law at Columbia Law School and author of Charging Ahead: The Growth and Regulation of Payment CardMarkets (New York: Cambridge University Press, 2006)."
FINDLAW: Who Killed the "Living Constitution"?
March 10, 2008
BYLINE: Michael C. Dorf
“In a widely reported speech at the University of Central Missouri (UCM) last week, U.S. Supreme Court Justice Antonin Scalia told his audience that the ‘living Constitution’ is bad for democracy. Scalia has poked fun at the living Constitution many times before, even suggesting, jokingly, that he prefers the ‘dead Constitution.’ But the substantial publicity that Scalia's UCM speech generated--not to mention a looming Presidential election in which judicial appointments will likely play some significant role--makes this a fitting moment to examine the claims for and against the living Constitution. In this column, I shall argue that the living Constitution is a problematic metaphor, but only because originalists like Justice Scalia either misunderstand or mischaracterize what it stands for. … Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.”
 FINANCIAL TIMES: Obama's free-trade credentials beat Clinton's
March 4, 2008
BYLINE: Jagdish Bhagwati
“While Barack Obama and Hillary Clinton are locked in combat for the Democrats' presidential nomination, commentary on the front-running Mr Obama's policy agenda, especially on trade, has become faintly ludicrous. David Wessel declared in the Wall Street Journal recently, as others have, that the two had no disagreements on trade policy. But Mrs Clinton has assaulted Mr Obama for having no policy agenda at all. Both views are wrong. Mr Obama has specifics and they differ in important respects from those offered by Mrs Clinton. … The writer is university professor, economics and law, at Columbia University and senior fellow at the Council on Foreign Relations.”
 WALL STREET JOURNAL: Promises, Promises
March 1, 2008
BYLINE: Christina Duffy Burnett
“He's not a household name, but Puerto Rico Gov. Anibal Acevedo-Vilá has become an important man in the race for the Democratic presidential nomination. Barack Obama recently courted the governor with a letter announcing his support for Puerto Rican ‘self-determination’ -- an indication that the senator from Illinois favors putting the decision of whether Puerto Rico should become the 51st state into the hands of Puerto Rican voters. Hillary Clinton is sounding similar notes. Why would candidates in a fight for their party's presidential nomination weigh in on the status of Puerto Rico? … Ms. Burnett is an associate professor of law at Columbia University, and co-editor of "Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution" (Duke University Press, 2001).”
 DAILY TIMES: Fair contracts for poor countries
March 1, 2008
BYLINE: Karl P Sauvant
“A number of countries in Latin America, Africa, Eastern Europe, and elsewhere are abrogating or renegotiating contracts with multinational enterprises (MNEs), and others are likely to follow suit. The costs can be high. Governments may get better terms, but they may also become embroiled in international investment disputes and discourage other investors. For companies, renegotiations mean uncertainty and possible interruptions of production and revenue. Significant shifts in power (typically as a result of changes in commodity prices) and ideology, or changes in the economics of projects, can lead to renegotiations, especially when it comes to large investments in natural resources and infrastructure. But often the reason is that the host country considers a contract to be unfair. … Karl P Sauvant is Executive Director of the Program on International Investment at Columbia University and Co-Director of the UN Millennium Cities Initiative.”
This piece also ran in the Korea Times.
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 AMERICAN SOCIETY OF INTERNATIONAL LAW: President’s Column: The Evolving Foreign Investment Regime
February 29, 2008
BYLINE: José E. Alvarez
“This past fall, Columbia University’s Program on International Investment (CPII), led by Karl P. Sauvant, formerly of UNCTAD, released a comprehensive report evaluating the receptivity of the world, on a regional and country-by-country basis, towards foreign direct investment. … A month later, CPII organized an impressive conference of leading academics, policy-makers, and practitioners on the subject of future investment policy… Both the Report and the conference came to the same ambiguous conclusion: while the prospects for ever-rising levels of FDI are bright and most countries continue to encourage free investment flows within a framework of continuing liberalization of their FDI laws and an expanding, interlocking network of bilateral and regional investment and free trade agreements, there are growing signs of discontent both with certain forms of FDI and with the legal rules by which these are governed. Like much else in international law, the FDI regime that governs much of global capitalism may be shifting in fundamental ways. More interesting still, the shifts are occurring not only in predictable places (e.g., Hugo Chavez’s Venezuela or Evo Morales’s Bolivia) but in places where such change would be least expected, including Bush’s United States and Harper’s Canada.”
FINDLAW: Did Justice Stevens Pull a Fast One? The Hidden Logic of a Recent Retroactivity Case in the Supreme Court
February 25, 2008
BYLINE: Michael C. Dorf
Last week, in Danforth v. Minnesota, the U.S. Supreme Court ruled that a state court was free to give greater protection to defendants' rights than the Supreme Court itself requires. Stated that way, the decision is hardly news. In our system of federalism, federal constitutional law is not a ceiling, but a floor. It sets out the minimum protections to which people are entitled. If states--through their constitutions or otherwise--choose to add protection, that is their prerogative. Yet Danforth was no ordinary application of the floor-but-not-a-ceiling principle, because the question in the case was not whether Minnesota could interpret its own state law more broadly than federal law. Everyone accepts that it (like every other state) can. The question in Danforth was whether Minnesota could over-protect federal law. Perhaps surprisingly, the Supreme Court said yes. … Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.”
MS. MAGAZINE: A Preference for Deception
Issue of Winter 2008
BYLINE: Kimberle Crenshaw
“A legal scholar shows how the language of civil rights is stolen by those trying to halt affirmative action.”
A discussion of this article appears on the African American Policy Forum’s Web site.
FINDLAW: Is The Bush Administration Right to Seek the Death Penalty for 9/11 Captives?
February 13, 2008
BYLINE: Michael C. Dorf
“Earlier this week, the Bush Administration announced plans to seek the death penalty for Khalid Shaikh Mohammed and five other persons who allegedly played a role in the 9/11 attacks. The Administration plans to try the six defendants before military commissions, as authorized by the Military Commissions Act (MCA) of 2006. But that plan raises a host of difficult legal questions. Will the defendants or at least their lawyers have access to all of the evidence against them, and if not, what measures will be used to ensure the reliability of that evidence? Will the government seek to introduce statements made by Mohammed as a result of the waterboarding to which the Administration acknowledges he was subjected, or would that be deemed a violation of Section 948r(b) of the MCA, which forbids military commissions from admitting any ‘statement obtained by use of torture’? … Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.”
ALTERNET.ORG: Feminist Ultimatums: Not In Our Name
February 5, 2008
BYLINE: Kimberlé Williams Crenshaw and Eve Ensler
“The rubble that was once the World Trade Center was still smoldering when President Bush issued an ultimatum that marked our foolhardy and tragic descent into war: Laying down the law, he declared, ‘Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists.’ Progressives, feminists, civil libertarians, compassionate conservatives and independent thinkers alike denounced the president's rant as a simplistic but frightening attempt to hijack the outpouring of grief felt world wide to serve his pro-war agenda. Thousands refused to be held hostage to this friend or foe logic in the face of considerable doubt and genuine disagreement about how to respond to the tragedy of 9/11. … In seeking to corral wayward souls into the Hillary Clinton camp, the new players of this troubling game are no longer the hawkish Republicans but ‘either/or’ feminists determined to see to it that a woman occupies the Oval Office. … Kimberlé Crenshaw teaches Civil Rights and other courses in critical race studies and constitutional law at UCLA and Columbia School of Law.”
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AMERICAN SOCIETY OF INTERNATIONAL LAW President’s Column: Judicialization and Its Discontents
January 31, 2008
BYLINE: José E. Alvarez
“The ASIL recently released a fascinating collection of 11 speeches made by Justices of the U.S. Supreme Court to the ASIL’s Annual Meetings from 1922 through 2005. … It is striking how often these speeches, particularly the early ones by Chief Justices William Howard Taft and Charles Evans Hughes and Justices Owen J. Roberts and Robert H. Jackson, stressed the need first, for the United States to lead the world in constructing a viable international court to settle interstate disputes and second, the need for the United States to lead by example in participating in such a court.”
FINDLAW: Bush's War on Earmarks: The Right Message from the Wrong Messenger
January 30, 2008
BYLINE: Michael C. Dorf
“During his State of the Union Address on Monday night, President Bush denounced Congressional ‘earmarks’--a practice in which members of Congress use legislative history to direct funds to particular programs not specified in the appropriation bill's text. Like prior attacks on pork-barrel spending,the President's denunciation of earmarks is sound in principle. But for two reasons, Bush is poorly positioned to make the case against earmarks. … Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.”
 NEW YORK LAW JOURNAL: Lawyer's Bookshelf: Fighting for the City
January 29, 2008
BYLINE: Richard Briffault
“ ‘Fighting for the City: A History of the New York City Corporation Counsel,’ Professor William E. Nelson's magisterial history of New York's Law Department, is three books in one. First, it is a detailed study of the individuals who, over more than three centuries, held the office of corporation counsel and of the evolution of that office from a one-man operation in the 17th century to the multi-hundred member, multi-bureau complex institution it is today. … Richard Briffault is the Joseph P. Chamberlain professor of legislation at Columbia Law School."
FINANCIAL TIMES: ‘Regulation-lite’ belongs to a different ageJanuary 20, 2008
BYLINE: John Coffee
"Conventional wisdom holds that the London Stock Exchange is winning the international battle for listings and offerings, in large measure because of the `regulation-lite’ policies of the UK’s Financial Services Agency. The reality is, however, more complex. A significant enforcement gap exists between the US and the UK, and its impact creates a regulatory dilemma for both countries. London’s Alternative Investment Market has been spectacularly successful but does that success prove the value of a `light touch’ on enforcement? The answer probably depends on what a country most wants its capital markets to do: either attract foreign listings, transactions and trading volume, or reduce the cost of capital to issuers. … The writer is the Adolf A. Berle professor of law at Columbia University Law School and director of its Center on Corporate Governance.’’
NEW YORK LAW JOURNAL: Corporate Securities: To Opt or Not to Opt? That Is the Question
January 17, 2008
BYLINE: John C. Coffee, Jr.
``Securities litigation has gone through a series of rapid and wrenching changes, as filings first fell drastically for two years and then rebounded this last quarter as the subprime mortgage debacle brought a new class of defendants within the plaintiffs' bar's crosshairs. But while these developments have generated headlines, a quieter, more destabilizing change has been surging beneath the surface, and it may revolutionize securities litigation practice. This is the new trend for institutional investors to opt out of the class action and sue (generally in state court) in individual or consolidated proceedings. Institutions that do so seem to fare markedly better than those who remain in the class. In turn, that raises two basic questions: (1) Will any institutions stay in the class in the future?; and (2) What impact will institutional opt-outs have on retail investors who remain in the now depleted class? … John C. Coffee, Jr. is the Adolf A. Berle Professor of Law at Columbia University Law School and director of its Center on Corporate Governance.’'
FINDLAW: When Does Taking Account of Discrimination by Others Amount to Discrimination Itself? A Question Posed By the Obama and Clinton Candidacies
January 14, 2008
BYLINE: Michael C. Dorf
``Caucus-goers and primary voters in both major parties surely want to select a Presidential candidate they trust and admire, whose values they share, and perhaps most of all, who stands a good chance of winning the general election. For ideological outliers in each party, these criteria often conflict. A socially conservative Republican might be happiest with Mike Huckabee as the nominee, but worry that he will alienate moderates in the general election, thus helping elect a Democrat. Likewise, a left-leaning Democrat might think that Dennis Kucinich would be the best President, but fear that nominating Kucinich would greatly increase the likelihood of the Republican nominee winning. Such voters must therefore decide whether and how to trade off their own political preferences against the candidates' `electability.’ The potential for this sort of tradeoff exists in most Presidential primary election years, but in the current cycle it has an additional twist, at least for Democrats. This time around, calculations of electability may take into account the likelihood that some number of general election voters will shun the eventual Democratic nominee on either racist or sexist grounds. … Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.’’
 OBSERVER: I'm a black woman. This is my dream
January 13, 2008
BYLINE: Patricia Williams
``The political history of the United States has been crafted by its greatest orators. From Thomas Jefferson to Franklin Delano Roosevelt, from Ronald Reagan to Bill Clinton, the most influential Presidents have anchored their appeal in the democracy of the eloquently spoken word. As the election of November 2008 draws closer, we usher out George W Bush, the most spectacularly dismal exception to that rule. Of course, there are many attributes other than oratory I'll be looking for in candidates running for highest office: he or she must not think war is a 'cakewalk', must be alarmed about global warming, must not think torture is a handy little tool. Nevertheless, I will be listening hard for any future President's ability to string words into unmuddied, coherent thought. I'll be listening for ideas that have been worked through sufficiently to have a beginning, a middle and an end. I'm looking for intelligence. Someone who has real ideas, something more than missiles wrapped in folksy homilies. Too many people see Barack Obama and Hillary Clinton's appeal as rooted in 'identity politics'. It is the cheap political equation of the moment. He's supposed to walk away with the black vote, she's supposed to have women all sewn up. But the diversity of their constituencies and the complexity of their platforms have defied simplistic expectations. … Patricia Williams is a professor of law at Columbia University and a regular columnist for the Nation.’’
January 2, 2008
BYLINE: Michael C. Dorf
``With the caucus and primary season now fully upon us, it is worth asking what kind of training and experience best prepares someone to be President of the United States. The answer depends on what aspects of the President's job one emphasizes. Article II of the Constitution assigns to the President several important duties….. The dilemma I'll highlight is this: However useful legal training may be for doing the job of President, it is at best a mixed blessing for a candidate because, not to put too fine a point on it, Americans hate lawyers. By looking at how the lawyer-candidates portray their legal experience, we can get a sense of how Americans feel about lawyers.’’
Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.
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FINDLAW: Picking an Attorney in Chief: How the Lawyers Running for President Are Portraying their Legal Experience in their Campaigns
