Big Questions—and Answers—in New Faculty Works

In chapters, journal articles, and books, Columbia Law faculty have put forth their research on myriad legal topics, including corporate and tax law, environmental law, human rights issues, and beyond.

How can the United States reduce its greenhouse gas emissions by 80 percent over the next three decades? Are prohibitions on campaign speech by tax-exempt religious organizations constitutional? How does wealth beget wealth?

These are just a few of the far-reaching questions Columbia Law School faculty members seek to answer in dozens of books, journal articles, reports, and other scholarly works published in the 2018–2019 academic year. 

Topics in the News

Several professors have written or edited new books that take on complex topics stemming from global crises. Michael B. Gerrard, director of the Sabin Center for Climate Change Law and the Andrew Sabin Professor of Professional Practice, tackles carbon abatement in Legal Pathways to Deep Decarbonization in the United States, a comprehensive text covering energy efficiency, fuel switching, carbon capture, negative emissions, and much more. Gerrard, who coedited the book with John C. Dernbach, a professor at Widener University Commonwealth Law School, also edited a book on climate engineering and the law released in early 2018.

Katherine Franke, the Sulzbacher Professor of Law, Gender, and Sexuality Studies and a leading scholar on critical race theory, addresses reparations for slavery in her latest book, Repair: Redeeming the Promise of Abolition. She compiles first-person accounts of former slaves to lay out the case for compensation, including community land trusts, housing cooperatives, and deed-restricted housing. The topic is timely: In June, the U.S. House of Representatives considered a bill that would fund a commission to study how to address the lasting repercussions of slavery, and several Democratic presidential candidates have backed reparations.

In The Code of Capital: How the Law Creates Wealth and Inequality, Professor Katharina Pistor examines how the law shapes the distribution of wealth and explores the mystery behind capital—where it comes from and how it builds over time with the help of legal systems that “code” certain assets for financial advantages. Pistor, the Edwin B. Parker Professor of Comparative Law, directs the Center on Global Legal Transformation and has been honored for her work on the financial system and the law, including with the Allen & Overy Law Prize in 2014.

In The Curse of Bigness: Antitrust in the New Gilded Age, Tim Wu, the Julius Silver Professor of Law, Science and Technology, draws on historical figures and examples to illustrate the risks of corporate and industrial concentration, which he argues can lead to the rise of populism, nationalism, extremist politicians, and fascist regimes. In a book The Washington Post described as “vivid and compelling,” Wu advocates for a return to robust antitrust enforcement.

Other books weigh in on equally timely topics. Philip Hamburger, the Maurice and Hilda Friedman Professor of Law, asks whether IRS prohibitions on political speech for tax-exempt religious organizations are constitutional in Liberal Suppression: Section 501(C)(3) and the Taxation of Speech, which Yale Law School Professor Stephen L. Carter called one of his favorite nonfiction books of 2018.

In an article for Bloomberg, Carter wrote, “Hamburger asks a great question: Why exactly do we limit the political speech of charitable organizations? Answers it, too. The rule wasn’t handed to us on stone tablets; it’s always been politics, all the way down.”

Meanwhile, Philip Bobbitt, the Herbert Wechsler Professor of Federal Jurisprudence, explores another political hot-button issue: impeachment. Bobbitt was tasked with updating one of the most authoritative guides on removing a sitting U.S. president from office. Impeachment: A Handbook, was first published by Charles Black, a former Columbia Law School professor, in 1974 at the height of the Watergate crisis. The new edition, with a preface and additional material by Bobbitt, was published in September 2018 and is perhaps just as relevant today, as certain House of Representatives members call for impeachment proceedings against President Donald Trump.

Bobbitt, who teaches Black’s original handbook in his Legal Methods class, writes in the preface, “As the 2018 midterm elections approached, there was some anxiety—and no doubt, in some quarters, hope—that impeachment might again be undertaken. My students. . . chafed to know how Black would have dealt with the significant questions of the hour. . . . Was the hacking of the Democratic campaign chairman’s emails in 2016 like the burglary of the Democratic campaign chairman’s correspondence at the Watergate complex in 1972? Was the Republican campaign’s contacts with Russian diplomats in 2016 like the Nixon campaign’s contacts with South Vietnamese diplomats in 1968?”

The handbook doesn’t provide students with answers, Bobbitt cautions in the preface: Black “wouldn’t tell them what to think of these or any other problems, even in the Nixon case, which was unfolding as the book was written.” Rather, “The Handbook would instruct them how to think.”

 

The Law, Politics, and Business

In other work, including journal articles, book chapters, and empirical reports, Columbia Law School professors offer their expertise on everything from tax law, cross-border M&A, and intellectual property to the First Amendment, human rights law, and policing.

Writing for the Yale Law Journal Forum, which published a collection of pieces focused on the 2017 tax cuts, Michael Graetz, Columbia Alumni Professor of Tax Law, analyzed the process and politics behind the cuts, concluding that the package “provides neither an effective nor stable solution to the nation’s economic and fiscal challenges.” Graetz’s piece, “The 2017 Tax Cuts: How Polarized Politics Produced Precarious Policy,” appeared as a foreword to the collection and takes a historical approach, comparing the cuts under Trump, which passed without a single Democratic vote, with the bipartisan process leading up to the tax reform package of 1986.

On the international front, Jeffrey Gordon, Richard Paul Richman Professor of Law, teamed up with his former colleague Curtis Milhaupt (now a professor at Stanford Law School) to explore the ramifications of China’s entry into the global M&A market. “China as a ‘National Strategic Buyer’: Towards a Multilateral Regime for Cross-Border M&A,” published by the Columbia Business Law Review, argues China’s participation will upend the traditional “unspoken premise” that buyers and sellers will be motivated by private economic gain rather than national interest.

Using famous toys and children’s characters as examples, Jane C. Ginsburg, the Morton L. Janklow Professor of Literary and Artistic Property Law, explored the interplay between copyright and trademark law in “Intellectual Property as Seen by Barbie and Mickey: The Reciprocal Relationship of Copyright and Trademark law,” a piece for the Journal of the Copyright Society of the USA.

 

Issues in Social Justice

Several professors wrote about free speech in recent articles. Vincent Blasi, the Corliss Lamont Professor of Civil Liberties, takes a historical view in “A Reader’s Guide to John Milton’s Areopagitica, the Foundational Essay of the First Amendment Tradition,” published in the Supreme Court Review. And, in a special issue of the Columbia Law Review based on a 2018 symposium about the First Amendment, Professors Jeremy K. Kessler and David Pozen and Professor Jedediah Purdy, the William S. Beinecke Professor of Law, ask whether the First Amendment can be used to promote equality in “The Search for an Egalitarian First Amendment” and “Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment,” respectively.

Jeffrey Fagan, an Isidor and Seville Sulzbacher Professor of Law and an expert on criminal law and policing, compared information about New York Police Department activity to the academic performance of more than 250,000 youth of color, finding that exposure to aggressive policing significantly reduced test scores for African-American boys. The resulting piece, “Aggressive Policing and the Educational Performance of Minority Youth,” published by the American Sociological Review, is the first to offer causal evidence on the question.

Sarah Knuckey, director of the Law School’s Human Rights Clinic and Lieff Cabraser Associate Clinical Professor of Law, published “Red Water: Mining and the Right to Water in Porgera, Papua New Guinea” as part of an ongoing investigation into the impacts of gold mining in the Pacific Island nation. Knuckey and her co-authors, including Benjamin Hoffman, deputy director of the clinic, conclude that residents of Porgera do not have a continuous supply of safe water or even appropriate information about their water sources.

More information and PDFs of these and additional resources, including others published during the 2018–2019 academic year, are available at the Columbia Law School Scholarship Repository.

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Published on July 16, 2019