Summer 2007

August 2007

FINDLAW: The Sins of Alberto Gonzales, and Advice for the Next Attorney General
August 29, 2007


``On Monday, Attorney General Gonzales announced that he will leave office next month. President Bush greeted the news with sadness, describing Gonzales as a faithful public servant whose `good name was dragged through the mud for political reasons.’ The claim that Gonzales came under sustained critical scrutiny because of ordinary politics is absurd on its face. For one thing, even many Republicans in Congress repeatedly expressed skepticism about Gonzales's performance. For another, if simple politics were at work in the way the President claimed, Democrats would have been willy-nilly calling for the resignation of all Bush Administration officials. Democrats had no reason to single out Gonzales for criticism--no reason, that is, other than his performance. In this column, I will explain what was wrong with the way Gonzales did his job as Attorney General, and offer a suggestion for his successor.’’ …
Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.


NEW YORK TIMES: The Warrantless Debate Over Wiretapping
August 22, 2007
``Congress just passed, and President Bush hurriedly signed, a law that amends the legal framework for the electronic interception of various kinds of communication with foreign sources. Almost immediately, commentators concluded that the law was unnecessary, that it authorized a lawless and unprecedented expansion of presidential authority, and that Democrats in Congress cravenly accepted this White House initiative only for the basest political reasons. None of these widely broadcast conclusions are likely to be true.’’ … Philip Bobbitt, a professor of law and the director of the Center for National Security at Columbia University, was a National Security Council senior director from 1998 to 1999.

FINDLAW: The Supreme Court Wreaks Havoc in the Lower Federal Courts—Again
August 13, 2007
`` Here's a pop quiz. Can you name the most important Supreme Court decision of the last Term? Was it Gonzales v. Carhart, the ruling upholding the federal Partial Birth Abortion Act? Or how about Parents Involved in Community Schools v. Seattle School District No. 1, which invalidated the voluntary use of race by public school boards in Kentucky and Washington? Not even close, at least by one important measure: How many times has the ruling been cited by the lower federal courts? According to my WestLaw research at the end of last week, the partial-birth abortion case had been cited eleven times since it was decided in April, and the schools case had been cited just twice since it was decided in late June.’’ … Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.


HUFFINGTON POST: Roberts, Breyer, Louisville, Seattle and Humpty Dumpty
August 10, 2007
``June 28, at the end of the Supreme Court's last term, Chief Justice John Roberts, in a 5-4 decision, held unconstitutional school assignment rules in Seattle and Louisville. To prevent creation of educational ghettos the rules denied enrollment to students whose race would cause its black-white ratio to deviate too far from the city's. A small number of white students who didn't get their first choice sued claiming racial discrimination. Roberts' sound-bite peroration – ‘[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race[.]’ gave me the feeling he was making a claim for historic stature alongside John Marshall Harlan's dissent in Plessy v. Ferguson (which in 1896 had enshrined segregation in constitutional law).’’

August 1, 2007
“One expects to see muckraking biographies of presidential contenders as an election nears. So the appearance of two books about Senator Hillary Clinton was to be expected. More surprising, however, is the source of much of the muck: former independent prosecutor Ken Starr. Luckily for the authors, Starr doesn't feel constrained by the rules of grand jury secrecy to which most prosecutors adhere.” … Scott Horton lectures at Columbia Law School, works on military contractor issues for Human Rights First, and is member of the board of the National Institute of Military Justice.


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July 2007

FINDLAW: New York State Imitates the U.S.-Attorney-Firing Standoff but with a Key Difference: An Elected Attorney General
July 30, 2007
“High-ranking Executive Branch aides attempted to use law enforcement resources for partisan political ends. The legislature learned of the illicit effort, but was stymied in its investigation by invocations of executive privilege. That sounds like the controversy surrounding the firing of U.S. Attorneys, allegedly for their failure to pursue partisan prosecutions, right? Yes, but it also perfectly describes a scandal in New York State that threatens to derail the ambitious policy agenda of Governor Eliot Spitzer,” writes Michael C. Dorf, the Isidor & Seville Sulzbacher Professor of Law at Columbia University.

BUSINESS WEEK: SugarCRM's Sweet Taste of Freedom
July 27, 2007


“A momentous event occurred in the history of software this week … [A] company called SugarCRM, a provider of software that helps companies manage customer relationships, threw its weight behind the latest version of the GNU General Public License, which governs the use of freely distributed software. …CEO John Roberts and his colleagues are experienced businesspeople and technologists who understand that the way to prosperity in the 21st century software sector is by making the best possible shared software that draws a community of committed voluntary contributors—users who have a stake in improving the program for themselves and everyone else—to make the best even better,” writes Eben Moglen, chairman of the Software Freedom Law Center and a professor of law and legal history at Columbia University Law School.

FINANCIAL TIMES: Illegal Immigrants Deserve to be Treated with Decency
July 25, 2007
"Everyone knows that 'if it ain't broke, don't fix it'. But few know that even if it is broke, it still may not be wise to fix it. One could make matters worse. The well-meaning proponents of US immigration reform learnt this lesson the hard way: their efforts finally collapsed in the Senate on June 28 and the nation was left more polarised than ever. What went wrong?" writes Jagdish Bhagwati, a university professor of economics and law at Columbia University, and senior fellow at the Council on Foreign Relations.

FIND LAW: Meet the New Federal Rules of Civil Procedure: Same as the Old?
July 18, 2007
“Barring intervention by Congress, come December, a newly amended version of the Federal Rules of Civil Procedure will take effect. The Rules have been completely rewritten to make them simpler and clearer. With a minor exception (which was part of a different effort and thus is not relevant here), they make only "stylistic" changes. As a teacher of civil procedure, I am profoundly grateful to the lawyers, law professors, and judges who spent countless hours rewriting the Rules. The old Rules were so difficult to follow that many students actually purchased a study aid that `translated’ them into plain English." …Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.

WALL STREET JOURNAL: Why the Trade Talks Collapsed
July 7, 2007
“The WTO talks between the G-4 nations -- Brazil, India, the United States and the European Union -- have collapsed yet again. This time, the only surprising twist was that U.S. Trade Representative Susan Schwab put the blame primarily on India and secondarily on Brazil," writes Jagdish Bhagwati, University Professor of economics and law at Columbia University and senior fellow at the Council on Foreign Relations.

WASHINGTON POST: A Declaration the President Ignores
July 4, 2007
“As we gather around picnic tables and backyard barbecues today, we should pause to consider a forgotten dimension of the occasion -- one that is as important now as it was on July 4, 1776. …[The Declaration of Independence] advanced an idea…that war ought to be governed by law. …[S]ince Sept. 11, 2001, we have become infamous the world over for eschewing the law of war in the name of patriotic self-defense,” writes John Fabian Witt, a professor of law and history at Columbia University.

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June 2007

SLATE: iPhony
June 29, 2007
“When the word iPhone appears in Apple press releases, the word revolutionary is rarely far behind. But what counts as revolutionary? … Seen as a phone, the iPhone is striking. Seen as a small computer, it’s limited, and compromised by the existing business models of the wireless industry,” says Tim Wu, Professor of Law at Columbia Law School, who regularly contributes to Slate magazine.

June 25, 2007 (Subscription Required)
``There was an intriguing little article in the June 11 issue of People magazine, titled "Dog Discrimination?" Apparently, your average big black dog ("known in the rescue world as a BBD") is much less adoptable than other dogs and "definitely more at risk of going to death row than a yellow or tan dog." According to Jacque Lynn Schultz, of the ASPCA, this is in part because of their dark fur: "They look menacing--people can't read their facial expressions as easily." The superficialities of appearance count for a lot in our society.  …Patricia J. Williams, a professor of law at Columbia University and a member of the State Bar of California, writes The Nation column "Diary of a Mad Law Professor."

June 20, 2007
"Last week, in Bowles v. Russell, the Supreme Court held that a federal appeals court had no jurisdiction to hear an appeal from the denial of a habeas corpus petition because the notice of appeal was filed two days late--even though it was filed one day before the date that the federal district judge had (mistakenly) told the petitioner that it was due. As a consequence of the ruling, Keith Bowles loses his one chance to have a federal appeals court correct what he alleges were errors resulting in his murder conviction and sentence of fifteen-years-to-life in prison." …Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University.
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