Spring/Summer 2008 | Volume 26 Number 1
THE CREDIT MELTDOWN
A TALE of CONFLICTS and CUPIDITY
>emj^[IK8FH?C;CEHJ=7=;9H?I?I X[YWc[W9H;:?J9H?I?IWdZj^h[Wj[d[Z j^[K$I$\_dWdY_Wbioij[c 4`][bVS2SO\
lishment of a “liquidity provider of last resort” to protect the financial markets from systemic collapse (“The Credit Meltdown,” Page 16); Professor James Cox’s series of empirical studies of securities litigation settlements (Page 40); Professor Neil Vidmar’s examination and evaluation of the American jury system (Page 32); and Professor James Boyle’s commitment to the public dissemination of knowl- edge (Page 39). On Pages 27–31, faculty offer advice to the next U.S. president’s administration on such key issues as global climate policy, democratization, and military preparedness. For our students, “The Duke Way” is a commitment to leadership in and out of the classroom. Matt Wolfe ’08, for example, completed an externship in the North Carolina Office of Administrative Hearings as he pursued a joint JD and master’s degree in public policy; after his externship, he conceived and crafted a proposal to establish a State Administrative Law Clinic, through which our students would represent individuals and community groups in administrative procedures and hearings — petitioners that would otherwise appear pro se. Two other 2008 graduates, Jade Totman and Chris Dodrill, both military veterans, established a project through our Office of Public Interest and Pro Bono to help injured veterans complete their initial disability applications. (See story on Page 5.) A team of stu- dents from our Appellate Litigation Clinic briefed, argued, and won a case in the United States Court of Appeals for the Fourth Circuit that represents a significant victory for disabled prisoners; the ruling held that disabled inmates have the right to sue states under the Rehabilitation Act regarding prison accessibility issues. For our alumni, “The Duke Way” is about risk-taking, innovation, and using their education and experience to make the world a better place. Several alumni who exemplify these ideals are profiled in this magazine (Pages 42–47), including Kendra Montgomery-Blinn ’03, a former prosecutor who now heads up the nation’s first state agency devoted to the cause of innocence, and Alan Bender ’79, who had the vision and determination to take a risk on cell-phone technology when most people thought it would not last. Of course, I could tell many more stories of the people in our community who 23/<2/D724 :3D7 exemplify “The Duke Way.” Lanty Smith ’67, who has served as adviser, mentor, and benefactor to this Law School and to many of our students and graduates 2SO`/Zc[\WO\R4`WS\Ra over the years, was recently appointed chairman and interim CEO of Wachovia Corp., the country’s fourth-largest bank. Gao Xiqing ’86, an architect of China’s When the Law School underwent its routine re-accreditation process this year, the securities markets who regularly returns to lecture at the Law School, now over- American Bar Association’s site evaluation committee filed a report praising Duke sees the investment of China’s $200 billion sovereign wealth fund. Harrison Dillon as one of the strongest schools in the country, “especially in the areas of profes- ’03 is president and chief technology officer of Solazyme, a synthetic biology sional culture, student and faculty quality, research centers and programs, facili- company that uses marine organisms to create clean and renewable energy and ties, clinical programs, and interdisciplinary programs.” industrial chemicals. The committee chair called our student culture the strongest of any law school In every respect, the Duke Law community values curiosity, the common good, he had ever seen. The ABA report credited our Blueprint ideals — engage intellec- and the greatest tradition of the legal profession: leadership. I am privileged to be tually, embody integrity, lead effectively, build relationships, serve the community, a part of this extended, international community. practice professionalism, and live with purpose — as having created a culture Before I close, I extend a warm welcome to the newest member of the Law that emphasizes service, collegiality, and excellence. School’s leadership team, Jeff Coates, associate dean for alumni and develop- During my first year as dean, I have come to call it “The Duke Way”: a unique ment. He comes to Duke after serving as assistant dean for development and combination of intellectual engagement at the highest level, a commitment to alumni relations at the University of Illinois College of Law, where his record serving the common good, and extraordinary collaboration and collegiality that was outstanding. Jeff has a passion for legal education and ambitious ideas for sets us apart from other law schools. enlisting you and the broader community in making Duke an even better place. For our faculty, “The Duke Way” is a culture that values knowledge in the ser- I’m sure you’ll hear more from him soon. vice of society. Our professors routinely tackle complex, real-world problems in their research and teaching. You will read about some of their initiatives in this Best wishes, issue of Duke Law Magazine: Professor Steven Schwarcz’s proposal for the estab- 43/BC@3A
!% ! Spring/Summer 2008 Volume 26 Number 1 " "$ 23/< 2OdWR4 :SdW " 3F31CB7D327@31B=@=4 1=;;C<71/B7= 327B=@ $" 4`O\QSa>`Sa[O /AA=17/B3327B=@ 8O\aS6Oge]]R "& 1= 1:/AA<=B3A327B=@ BS``g0O\¿QV $BVS1`SRWb !:OegS`aOa /@B27@31B7=</<21=D3@7::CAB@/B7=< ;O`Q6O`Y\Saa ;SZbR]e\ :SORS`a A tale of conflicts >6=B=5@/>6G :SaB]RR and cupidity ;SUO\;]`` 0SdAWZZW[O\ 8]\5O`RW\S` 0cbQVCaS`g 8W[EOZZOQS ;O`Y2]ZSXa BV][Oa;SbhZ]TT 8O`SR:OhO`ca 2]\6O[S`[O\ 8Og;OZZW\ AO\T]`R1`SObWdS 0OQYQ]dS`W[OUSPg;O\RSZ 2cYS:Oe;OUOhW\SWa^cPZWaVSRc\RS`bVS 4`][bVS2SO\ Oca^WQSa]TbVS=TTWQS]TbVS2SO\ "' /Zc[\W<]bSa $ 7\;S[]`WO[ /RdWQST]`O\Se OR[W\Wab`ObW]\ . .U.S .T. % P.O.T.U.S.P.OP 8cabWQS/ZWb]^`OWaSa2SO\¸a1c^ORd]QObSa RIAN EYINK ’09 and Eugenie 0Montague ’09 argued to a tie in the Feb. 7 final of the Dean’s Cup Moot Court Competition. The event’s judges — Justice Samuel Alito of the U.S. Supreme Court, Judge Jose Cabranes of the Second U.S. Circuit Court of Appeals, and Judge William Pauley ’77 of the U.S. District Court for the Southern District of New York — said both students’ arguments and presentations were superbly prepared and of equal, excellent quality. The judges also praised the students’ mastery of the case. “I only wish all of the cases I have heard throughout my career by real lawyers in court were as well-argued as this competi- tion,” said Alito. “Most of the time, the members of the panel have lots of ques- tions, like we did today. The most important thing for an advocate to do is to answer :³@(8CAB713A/;C3:/:7B=0@7/<3G7<9¸ '8C2538=A31/0@/<3A those questions in a way that will satisfy 3C53<73;=/C:3G¸%% judges who may be on the fence … judges who come to the argument looking for help with real questions.” Jenkins’ testimony cured previous evidence ent areas of practice,” he said. “The ability Eyink and Montague argued a case deficiency in the alien-smuggling case and to analyze difficult questions thoroughly, based on 6OJUFE4UBUFTW+FOLJOT, a Ninth that this was not vindictive prosecution. the ability to write well and persuasively, U.S. Circuit Court of Appeals case in (Alito emphasized that since the case is a the ability to stand up and make an argu- which a woman prosecuted for smug- real case, nothing the judges said during ment — those have application in any gling drugs across the U.S.-Mexico bor- the competition should be construed as the area. If you come out of law school having der testified that she believed she was opinion on the actual case.) developed those skills, you’ve had a suc- smuggling illegal immigrants, not drugs. Like Alito, Cabranes and Pauley com- cessful legal education.” She had, in fact, been apprehended, but mended Eyink and Montague on their han- Pauley counseled students to always not prosecuted, twice before in the act dling of the panel’s questions and hypotheti- address their adversaries with respect, of smuggling illegal immigrants; on the cals, praising the students’ responsiveness while Cabranes stressed the importance first occasion it was not clear her Miranda and their in-depth knowledge of the case. of always answering the judges’ questions, rights had been read, and, on the second, “That is exactly what enables you to answer a even if they take an attorney “off track.” “If she claimed she did not know there were quixotic or bizarre question,” said Cabranes. a panel takes one in a different direction … immigrants in her car. Several hours after In addition to judging the Dean’s Cup, go with it,” he said. the woman testified in the drug-smug- the judges answered questions from the Asked to address potential conflicts gling case, however, the United States audience, participated in classes, and met between facts and law at the appellate level, filed a new complaint, charging her with privately with Moot Court board members. Alito noted that the Supreme Court takes two counts of alien-smuggling. During the question and answer session, cases to clarify important rules of law, not Central to the arguments of both sides Alito discussed what he felt were the most in an attempt to reach a “right result” based was the issue of vindictive prosecution, the valuable skills to develop while in law school. on the facts. The law, he said, should be grounds on which the trial court judge had “The skills that were exhibited in a com- informed by the facts of the particular case dismissed the alien-smuggling indictments. petition like [moot court] are real skills that in question, but the justices will “test” a On appeal, the government argued that are very valuable to lawyers in many differ- potential outcome being put forward by 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & posing hypothetical situations to the advo- cates during oral argument. During an informal session with Moot Court board members, all three enthusiasti- cally supported continuing life tenure for federal judges. “Life tenure is great!” Alito said to laughter. On a more serious note, both Pauley and Cabranes observed that it insulates judges from political intimidation or influence from “constituents” interested in the outcome of any given case. “As a judge, you make scores of decisions every day about which people are not happy,” said ;=<7?C3;1<3::73¸ '>@=43AA=@8/195@33<03@5 Cabranes. Thanks to life tenure, he said, “you >@=43AA=@8=6<6=>34@/<9:7<8C253:3E7A>=::/9;3:D7<67<3A¸ ' never have to look over your shoulder.” [ 1WdWZ`WUVbaZc[W\O`WSa`STZSQb]\ 2007-08 MOOT COURT HIGHLIGHTS 0`]e\d 0]O`R]T3RcQObW]\ Hardt Cup Intramural Competition Champion: Timothy Grinsell ’10 n March 27, a capacity Duke Law ars variously interpret #SPXO±T meaning. Finalist: Brendan Groves ’10 =audience heard how three key par- While many constitutional law scholars ticipants in #SPXOW#PBSEPG&EVDBUJPO view #SPXO as being primarily concerned ELSA World Trade Organization Moot Court viewed their roles and goals in the land- with ending state-sponsored formal inequal- Competition; North American regional round, mark litigation and their reactions to ity, he said, others see it as being about equal March 6, Washington, D.C. First place: Destiny Duron Deas ’08, Ryan Mellske ’09, its contemporary interpretation by the citizenship and racial outcomes. Charles Amber Jordan ’10 and David Chiang ’10 Supreme Court in decisions striking down asked whether the “inequality of outcome” Best orator, elimination round: Destiny Duron Deas race-based school assignment plans. demonstrated by the higher infant mortality Coach: Jason Cross ’08 Professor Jack Greenberg of Columbia rates, fewer educational opportunities, more Law School, long-time director-counsel of divorces, and shorter life spans of African George Washington University Religious Freedom Moot Court Tournament, Feb. 22, Washington, D.C. the NAACP Legal Defense and Educational Americans as compared with those of white First place: Jessica Brumley ’09 and Erin Blondel ’09 Fund (LDF), served as co-counsel with Americans are “consistent with the meaning Best oral advocate: Erin Blondel Thurgood Marshall in #SPXO. U.S. District of #SPXO that has presaged and helped us to Coach: Amanda Neely ’08 Court Judge Lewis Pollak was another key understand full citizenship as it should be member of the LDF team in crafting legal under the Constitution.” Saul Lefkowitz Competition Southern Regional Round, Feb. 10, Atlanta strategy for the cases combined under the In response, Franklin expressed disap- First place, best oral argument, best overall team: #SPXO umbrella. Renowned historian John pointment at social progress subsequent to Chad Jira ’09 and Jonathan Williams ’09 Hope Franklin, James B. Duke Professor #SPXO, saying it got off to “a terrible start” Coach: Kyle Pousson ’08 Emeritus at Duke University, helped write with its denunciation by a large number of the plaintiffs’ briefs and prepare the advo- lawmakers from which it never recovered. National Moot Court Competition January 2008, New York cates for their Supreme Court arguments, “There was never a time when I thought Semi-finalists: Natalie Hirt ’08, Mike Rosenberg ’08, transforming them into “experts in consti- the country was really interested in doing and Tadhg Dooley ’08 tutional history,” he said. something significant [about segregation] Coach: James Maxwell ’66 Professor Guy-Uriel Charles of the in the schools or anywhere else,” he said. 2007-08 Moot Court Board co-chairs: University of Minnesota School of Law “The Court did its job in #SPXO, but nobody Katherine Crawford ’08 and Jade Totman ’08 opened the discussion by noting how schol- else did the job that needed to be done in A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S ! “The Court did its job in Brown, written, said Pollak, stating that Roberts took the language of the brief out of its his- but nobody else did the job torical context. ®#SPXOwas about the use of that needed to be done in governmental authority to segregate people order to move significantly by race for the purpose of subordinating minority interests,” he said, characterizing toward a society of equals.” the Seattle and Louisville plans as using ´8]V\6]^S4`O\YZW\ race to undo forms of disadvantage that may flow from decades of disparaged treat- ment of blacks. according differential treatment to American “The question of what #SPXO meant was children on the basis of their color or race.’” put in focus by Professor Charles’ initial He then found that the racial classifica- remarks when he set up two possible ways tions at issue in Seattle and Louisville also of looking at #SPXO,” said Pollak, noting improperly told schoolchildren where they that it should stand as both a declaration could and could not go to school based on of commitment to formal equality and as the color of their skin. affirmation of the plaintiff’s intent to gain, “There are five surviving lawyers who for all citizens, “full participation in the participated in this case — and if we American community. That is what we include John Hope Franklin there are six,” hoped to achieve … And to take the deci- said Greenberg. “All of us have unani- sion in a case which resolved systematic order to move significantly toward a society mously said that Chief Justice Roberts disparagement and transfer it to what con- of equals.” was wrong in his characterization of [our temporary communities are trying to do for Greenberg and Pollak were blunt in stat- intent] in the briefs.” He pointed out that all its citizens in [this context] was, in my ing that the Supreme Court’s 2007 plurality in two Supreme Court arguments and in view, highly inappropriate and demeaning decision striking down race-based school the cases consolidated in the Supreme of what #SPXO [sought to do].” assignment plans in Seattle, Wash., and Court as #SPXO, the plaintiffs’ attorneys The extraordinary discussion of #SPXO Louisville, Ky., ran contrary to the intent variously argued the non-discrimination, represented the launch of the %VLF'PSVN of #SPXO, strongly disagreeing with Chief non-classification principle as well as the PO-BXBOE4PDJBM$IBOHF (%'-4$), the Justice John Roberts’ use of the #SPXO plain- non-subjugation principle. “They were try- Law School’s ninth student-run scholarly tiffs’ briefs in his opinion in 1BSFOUT*OWPMWFE ing to make arguments that were persua- journal, and was co-sponsored by the Office W4FBUUMF4DIPPM%JTUSJDU/P. Writing sive to the Court — that’s what advocates of the Dean. %'-4$ has the goal of effect- for himself and Justices Scalia, Thomas, do. To take one or two sentences out of the ing change through discussion of key and Alito in an opinion joined by Justice briefs [is] non-sensical,” he said. social issues that affect the everyday lives of Kennedy, Roberts stated that in their brief, The parties to the Louisville and Seattle Americans and will devote its first year to the #SPXO plaintiffs argued that the Equal cases should not have been held respon- a consideration of education, said Melvin Protection Clause “‘prevents states from sible for what the #SPXO plaintiffs may have Hines ’09, one of its founders. [ BVS`]OROVSORT]`@]Sd EORS THE REAL, LOGICAL EXTENSION of the partial birth [abortion] case is not a challenge on Roe v. Wade. It is what you are seeing now in South Carolina, Florida, [and] Utah … and that is a regu- latory scheme put in place that is more giving of information, but compelled information. “…I don’t see the Roe challenge in the next two to four [years]. But it will happen in the next 10. And then itµ will be question of what does the Court look like, and what does the statute that prohibits the procedure look VISITING like? And that is reading a crystal ball that I can’t read. … It will depend largely on the next election and how VOICES the Court ends up looking.” ´8OgASYcZ]e chief counsel for the American Center for Law and Justice, addressing the state of abortion law and speaking about Supreme Court advocacy on Oct. 2. Sekulow filed an amicus brief and helped prepare the solicitor general’s representative for oral argument in Gonzales v. Carhart, the 2007 decision that /aO[^ZW\U]TeVObUcSab upheld a federal ban on a late-term abortion procedure. ZSQbc`S`aO`SaOgW\U " 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & ORTH CAROLINA VETERANS seeking disability tion], it may not process you with groups of those /\Se1]\abWbcbW]\ and to ensure that an open political system evolved in the former dictator- WITHIN THE SPHERE that it oper- ships of the South, and, finally, to protect immigrants and aliens against ated, the 14th Amendment was what John Bingham called ‘the terrible enormity of distinguishing here in really designed to change everything. It the laws between the citizen and the stranger within our gates.’” was designed to empower the federal gov- ´5O``Sbb3^^a¸' the Orlando John and Marian H. Hollis ernmentµ [and] to empower the Congress to Professor at the University of Oregon School of Law, and author of intervene deeply in the political and social Democracy Reborn: The Fourteenth Amendment and the Fight for Equal systems of the states. It was designed to Rights in Post-Civil War America (St. Martin’s Press). Speaking at Duke ensure that American society would be run Law on Feb. 14, Epps argued that the 14th Amendment is not only the most by republican rule and to ensure birth- important amendment to the United States Constitution, but it also effec- right citizenship for every person. It was tively sets out all of the constitutional principles we live under today. VISITING designed to protect all people in the South VOICES A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S # >@=43AA=@A/<<39:7<343:B3@/<24@/<13A1/075 B6=;/AH3@9719 1]\TS`S\QSSf^Z]`Sab`O\aObZO\bWQO^^`]OQVSa b]RObO^`WdOQgO\R^`]bSQbW]\ mong the member states of the European Union, protection of an indi- BVSC A O^^`]OQV(\]bWQSO\RQ]\aS\b /vidual’s personal data is a fundamental right. American law and policy, U.S. law and policy directed at consumer privacy is based on a system of notice by contrast, focuses on data privacy, regulated on a sector-by-sector basis. and consent, explained Howard Beales, a professor of law at George Washington The contrasts between these approaches and attempts at harmonization in a University. The practice of giving consumers notice of an organization’s privacy high-tech world of transnational commerce, crime, and terrorism were examined policies and the choice to accept or reject them is central to the Federal Trade during “Data Privacy in Transatlantic Perspective: Conflict or Cooperation?” on Commission’s (FTC) oversight of unfair and deceptive commercial practices. The Jan. 28. The conference brought together American and European policymakers, FTC can take action against companies that fail to comply with their own privacy business leaders, and scholars to discuss such challenges as designing compre- policies or misuse personal information, said Beales, a former director of the FTC hensive privacy laws and policies, meeting multiple — often conflicting — data Bureau of Consumer Protection. privacy standards, and coping with international terrorism. Duke’s Center for The effectiveness of that approach was questioned by a number of panelists, International and Comparative Law and Center for European Studies co-sponsored however. Consumer comprehension of privacy notices is extremely low and the the conference, which was chaired by Professor Francesca Bignami. notices rarely give consumers the information they seek, said Annie Anton, a pro- VISITING VOICES 0SVW\RbVSµb]`bc`S[S[]¶ IT HAS A NATURAL IMPACT ON LAWYERS … operating in the ´ Former Office of Legal Counsel (OLC) chief 8OQY5]ZRa[WbV gray areas of the law, when principles aren’t crystal clear, when Henry L. Shattuck Professor of Law at Harvard Law School and author of on the other side of the balance sheet there is a small chance a lot of The Terror Presidency: Law and Judgment Inside the Bush Administration, people will be killed. So you combine fear with the fear of not having good explained how the fear of another terrorist attack, supported by threat informationµ or the tools to stop it and the responsibility that the executive reports delivered daily in White House briefings, may have affected naturally feels for national security, and it created a panicked or paranoid decision-making within the OLC. Finding his predecessor’s memorandum atmosphere inside the government that led them to push as aggressively as on acceptable interrogation techniques — the so-called “torture memo” they could along every dimension. — “deeply, deeply flawed” and overly broad, Goldsmith withdrew it in July … I worried that these super broad opinions would be relied on to justify 2004 and promptly resigned his executive branch position. all sorts of acts other than the ones that [were] approved.” $ 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & fessor of software engineering at North Carolina State University who studies the rights is a precondition for the fight against crime — only [then] will you be sure effectiveness of cybersecurity policies. Consumers, she said, want to receive infor- that the criminal justice system works. You’ll be sure that you can use evidence in mation regarding transfer, notice, and storage of data, as opposed to the policies court. … And ultimately, only if you respect those guarantees will your partners in on data integrity and security, data collection, and user choice and consent that the global fight trust you and be willing to cooperate with you.” are typically emphasized. BVSaSO`QVT]`VO`[]\WhObW]\ BVS3c`]^SO\dWSe(RObO^`]bSQbW]\Oa In the commercial context, the United States and the European Union have Tc\RO[S\bOZ`WUVb developed the “Safe Harbor” privacy framework in order to facilitate compliance Article 8 of the Charter of Fundamental Rights of the European Union establishes with the European Union’s requirement of “adequate” privacy protections for the an individual’s rights regarding the collection, transmission, retention, and transatlantic transfer of personal data. Adherence to the Safe Harbor principles deletion of his or her personal data. It includes the right of an individual to have is entirely voluntary, but once a company signs on to the program, the FTC gains that data “rectified,” with data protection overseen by an independent authority, enforcement authority, including the right to investigate complaints. Companies and applies to public and private sectors alike. A key EU directive on data are joining the accord as they engage in e-discovery and as their customers protection bars transfers of personal data to non-EU countries unless they provide demand compliance in order to complete global transactions, said Damon Greer, “adequate” privacy protections. who directs the Safe Harbor program for the U.S. Department of Commerce. Harmonization between the U.S. and European approaches has proven par- Sectors exempt from Safe Harbor include financial services, telecommunications, ticularly challenging in the national security context since the Sept. 11 terrorist common carriers, insurance companies, or nonprofit institutions. attacks, a situation well-illustrated by the five-year-long negotiations to reach an Even with Safe Harbor and other international accords, however, global data agreement on passenger name records, said Bignami. Faced with U.S. demands flows pose a challenge for transnational commerce, as companies operating for airlines to give the Department of Homeland Security access to such informa- internationally have to negotiate multiple, occasionally conflicting, and often tion as passenger passport and credit card numbers, the European Commission changing data privacy standards. protested, arguing the demands violated its data protection requirements. A com- “We have to figure out ways to design processes, so that when we identify promise agreement deemed “adequate” by European standards was reached in personal data, we know how to handle it appropriately,” said David Hoffman ’93, July 2007, though the issue is likely to arise again, said Bignami. group counsel and director of Privacy and Security Policy for Intel. “[Internet The European panelists were unanimous in arguing the high level of protection service providers] could design their systems to make their Internet protocol serves the interests of justice and national security as much as it does consumers. addresses more dynamic. People who are collecting the data can choose not to “Public security can only be provided in the name of the law and [by] upholding relate [it] for other purposes. It’s understanding what the uses of the technology the rule of law,” said Thomas Zerkick, administrator of the European Commission’s or the services are and trying to design [systems] with a maximum of privacy Directorate-General for Justice, Liberties and Security. “Respect for fundamental protection up front.” [ VISITING >`]aSQcbW\U>ORWZZO VOICES WE GOT THE BINDER ADMITTED into evidence and then had the witness walk it down to =\bS``]`WabaO\Rb]`bc`S show it to the jury. The jurors were clearly fascinated I DIDN’T SET OUT TO BE A POSTER-CHILD FOR HUMAN RIGHTS. … I was just start- by what was in this binder — it helped make what ing to look at the case as a trial lawyer. I wanted to know the context of those inter- weµ were talking about ‘real’ for them. But the jurors’ rogations. … I wanted to know what was going on. reaction never made it into a news story. Those kinds of “… [Slahi] was subject to long interrogations. He was subject to isolation. Ultimately they things don’t translate well to coverage or media reports µspun a ruse with him that his mother and brother had been taken into custody. … I finally about a case.” said that’s it. What’s going on here, in my view, was a violation of the U.N. Convention against ´8]V\AVW^ZSg¸'#an assistant U.S. attor- Torture. I felt like he was enduring mental suffering … at the hands of the United States govern- ney in the Southern District of Florida, who successfully ment. … [Slahi] could be the most despicable person on the planet, but he’s got inherent human prosecuted Jose Padilla on terrorism-related charges in dignity… to the point that we shouldn’t abuse him.” 2007. Speaking to Duke Law students on Feb. 4, Shipley ´Lt. Col.AbcO`b1]cQV former Marine Corps prosecutor, explaining why he refused to discussed the effect of one piece of evidence, a binder prosecute Mohamedou Ould Slahi, alleged organizer of the “Hamburg Cell” of terrorists, which discovered in an Al Qaeda training camp in Kandahar, included a hijacker of United Airlines flight 175, the second plane to hit the World Trade Center Afghanistan. It included Padilla’s highly detailed appli- on Sept. 11, 2001. Now a judge on the Navy-Marine Court of Criminal Appeals, Couch, a 1987 cation for admission to the training camp, said Shipley, graduate of Duke University, spoke at Duke Law on Oct. 23, 2007. His visit was sponsored by one that did not use his real name, but outlined his the International Human Rights Law Society, the Office of Career Services, and the Duke Bar unique characteristics, his American citizenship and Association. Spanish fluency among them. A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S % N INTERDISCIPLINARY confer- /ence April 10-11 explored strategies the new presidential administration can employ to effectively confront terrorism. Top experts from a variety of disciplines addressed topics such as the role of the international community in fighting terror- ism; the prosecution of alleged terrorists in federal courts; the “extraordinary rendition” of alleged terrorists; domestic spying; the accountability of private military contrac- tors; and the role of lawyers in these issues. Three keynote events provided further insight into the future of U.S. foreign policy in the war on terrorism, the state of home- land security, and the state of political devel- opment in Iraq. 7`O_WO[POaaOR]`ZWabaS``]`a /;0/AA/2=@A/;7@AC;/72/¸73 ZOcRaac`US Samir Sumaida’ie, Iraqi ambassador to the into” and what needed to be done, he said. Qaeda to gain a foothold in a country already United States since 2006, said “the bulk of In particular, the administration failed to undermined by two wars, said Sumaida’ie. Iraqis” welcomed American intervention in understand how international sanctions had The Coalition Provisional Authority’s their country. While he extolled the positive strengthened Saddam’s regime while devas- treatment of Iraq cast the nascent govern- results of the year-and-a-half-old troop surge tating the social fabric of the country, leav- ment in the role of collaborators and the in combating the insurgency and securing ing corruption endemic and ingrained. terrorists and insurgents in the role of communities, he dubbed efforts until then The invasion, with insufficient force to freedom fighters, a view fanned by Arab poorly managed and often “disastrous.” maintain law and order, followed by the and Al Qaeda media, he said. “We are still The advice of many “well-informed, well- disbanding of the army and the effective fighting this label of occupation.” He added educated Iraqis” was not heeded, and the disbanding of the police, left communities that mistakes were compounded when the United States invaded Iraq without fully unprotected. The resulting “lawlessness” U.S. pushed for elections while ethnic and understanding what they were “getting gave rise to the insurgency and allowed Al sectarian tensions were still overly volatile, /µ\]\]PdW]ca¶RWaQcaaW]\]T^ObS\ba “So here we have broad patents — you get rights, and you get OFTEN WE THINK OF PATENT BREADTH as being the the right to exclude over products that are better than the one you problem, not the solution [to stifling progress]. Because created. …It means that when they invent [those better products] patents create the right to exclude from the market — that’s what you get to consolidate those improvements into your patent via a a patent is, after all — we often think that the way patents will licensing agreement.” VISITING beµ exercised is to do so. But that … is a contradiction. Because if ´AchO\\SAQ]bQV[S`professor of economics and pub- VOICES you exercise the patent right by excluding everybody from the mar- lic policy at the University of California, Berkeley, delivering the sev- ket, you’re not making any profit. … The way to make profit and enth annual Meredith and Kip Frey Lecture in Intellectual Property, use the exclusive right to make profit is to license. … And if you April 3. Taking the role of a “transactions optimist,” Scotchmer believe that, then broad patent infringement — creating infringe- argued that on a “quality ladder,” breadth and patentability stan- ment — is not the problem, it’s the solution. dards are substitute ways to protect innovation. & 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & leading to “a dysfunctional parliament and tary doctrine, training, capabilities, and Paul Rosensweig, deputy assistant sec- a dysfunctional government.” force structure to fit the counterterrorism retary for policy in the U.S. Department of The pattern of awarding major con- duties, as global challenges increasingly Homeland Security (DHS), predicted a shift tracts for services and infrastructure in take the form of “asymmetric warfare.” in counterterrorism strategy and activity Washington and then allowing them to With early victories in Afghanistan from one that is primarily defensive to one be subcontracted without oversight meant eroded, America needs more allied partners that is offensive, focused on the active dis- that U.S. tax dollars were spent with little “buying into the hard parts of the mission,” ruption of terrorism. effect, said Sumaida’ie. In the communica- said Jentleson who, with Feaver, directed “In other parts of the government, tions context it led to the loss of the “public a research project funded by the Carnegie they’ve been actively disrupting terrorism information war,” he said, leaving the gov- Corp. called “Wielding American Power: for some time,” said Rosensweig, detail- ernment unable to counteract the messages Managing Interventions after September ing activities that have hobbled financ- of “Saddamists” and anti-American voices 11.” The mission itself, he suggested, ing and communications networks and from other Arab countries. should address political, economic, and civ- forced terrorists to travel the world carry- Emphasizing that the counterinsurgency il-action objectives — areas where the U.S. ing both messages and funds. In such a tactics employed since the surge have been can learn from NATO allies — in addition climate, passenger data regarding credit remarkably effective in eradicating safe to military objectives. card numbers and traveling companions havens for terrorists and securing commu- Feaver, who worked as the special that is supplied to carriers prior to travel nities, Sumaida’ie said that Iraq is now on adviser for strategic planning and insti- — so-called “passenger name records” or an “upward spiral,” though progress will be tutional reform on the National Security PNR — becomes very important. “PNR “slow and incremental.” Council staff at the White House, said the allows us, through link analysis, to link next administration must build a stable, people on watch lists to unknown individu- A^SOYS`a]TTS`ab`ObSUWSaT]` bipartisan legal foundation or framework als,” he said. Passenger data is currently Q][PObW\UbS``]`Wa[ for the war on terror, both domestic and an issue high on the transatlantic agenda, During another keynote discussion, Duke international, and focus on the area of he observed. University public policy scholars and politi- public diplomacy. Principally organized by Scott Silliman, cal scientists Peter D. Feaver and Bruce W. “The next administration must make executive director the Center on Law, Ethics Jentleson explored how the next administra- more progress on the war of ideas than and National Security (LENS), the confer- tion can shape U.S. foreign policy for the this administration has,” said Feaver. The ence was co-sponsored by LENS, the Center continuing war on terrorism. They agreed United States has to understand what for International and Comparative Law, and that the highest priority should be given to cultural, nationalistic, and economic condi- the Program in Public Law at Duke Law avoiding a “catastrophic terrorism event” tions exist and may be fomenting terrorism, School, and was financially supported by and on the need to continue to adapt mili- added Jentleson. other Duke organizations. [ 0Sg]\ROPZOQYeVWbSQ]\dS`aObW]\]\`OQS WE UNDERSTAND RACE PRINCIPALLY — sometimes exclusively — in terms of relationships between blacks and whites. If you think about it, obviously that’s under-inclusive. Yet our discourse time and time again really is limited in that way, and I think that limits the ways we understand race.” VISITING VOICES ´8cO\4 >S`SO the Cone, Wagner, Nugent, Johnson, Hazouri & Roth Professor of Law at the University of Florida Levin College of Law, speakingµ on March 20, as part of the Jean E. and Christine P. Mills Conversation Series on Race. A constitutional and immigration law scholar who has written extensively on issues relating to Latinos and Latinas in the United States, Perea addressed themes raised by presidential candidate Barack Obama’s March 18 address on race. The series, which also featured a discussion of U.S. immigration policy and the variously controversial and conciliatory aspects of hip-hop, is endowed by Amos Mills ’72. A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S ' >@=43AA=@@=07 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & &:Oe/Zc[\W/eO`Ra :Sbbg; BO\QVc[¸%!received the Charles S. Murphy Award, which honors a graduate whose dedication to education or public service reflects the ideals exemplified by Charles S. Murphy ’34. Formerly vice president and general counsel and now special counsel for Oprah Winfrey’s Harpo Productions, Inc., Tanchum is the vice president and general counsel of The Oprah Winfrey Foundations. In addition to other Foundation projects in the United States and abroad, she helped establish the Oprah Winfrey Leadership Academy for Girls in South Africa, which offers young women a top-flight education as well as an escape from poverty, abuse, or dire family situations for many of its students. An honorary life member of the Law School’s Board of Visitors and a devoted member of the community, Tanchum and her husband, Michael ’72, support and host an annual Duke Law Passover seder, “a small but immensely appreciated gesture reflecting a commitment to making the Duke Law experience one that goes far beyond that of academic and intellectual stimulation,” said Levi. 5ZS\\3 9Sb\S`8` ¸$! was honored with the Charles S. Rhyne Award, which is presented to a graduate whose career as a practicing attorney exemplifies the highest standards of professional ability and personal integrity, and who has made significant contributions to community service. A private practitioner in Salisbury, N.C., Ketner serves on the Law School Board of Visitors and the Duke Estate Planning Council. He also chaired his Law Reunion Committee and recently established a scholarship fund for law students. He has previously served on the Law Annual Fund Council, the Annual Fund Comprehensive Trinity Committee, and the Annual Fund Executive Committee for Duke University. President and director of the Ketner Family Foundation, Ketner is also a trustee of Catawba College, Rowan Cabarrus Community College, and the Rowan Regional Medical Center. He is a former board member of North Carolina Citizens for Business & Industry and a member of the local, state, and national bar associations. “I often talk about leadership, and the ways in which lawyers serve as leaders, not just in the legal profession, but also in our communities, our nation, and our world,” said Levi. “In ways both large and small, Glenn embodies the ideals of leadership that I hope we all aspire to.” 8S\\WTS`: 4`O\YZW\¸'&received the Young Alumni Award, given to an individual who graduated within the past 15 years, has achieved professional distinction, and has made significant contributions of leadership and service to Duke Law School. Counsel at Simpson Thacher & Bartlett in New York, Franklin practices in the Exempt Organizations Department, focusing on corporate tax law, charitable economic development and gift-planning, and taxation relating to mergers and acquisitions. She serves the profession as a member and leader of several American Bar Association committees. She serves the greater community by helping to educate nonprofit organizations on AOdSbVS2ObST]` legal and taxation issues and through her leadership on the board of a New York nonprofit that provides needy families with baby clothing and supplies. @Sc\W]\ ' Levi noted Franklin’s commitment to Duke Law School and the future of the /^`WZ % ' ' profession as demonstrated by her service to students through mentoring. One 1ZOaaSaS\RW\UW\µ"¶]`µ'¶ recent graduate, he said, appreciated being able to call on “Jennifer’s care and O\RbVS6OZT1S\bc`g1ZcP wisdom” for advice of any kind. “Sometimes these are the very things that make all the difference to a student and the way he or she experiences law school.” A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S 6]\]`W\UbVSbOZS\bSR 1:/AA=4 & 82A>3/93@8=A6C/µ0@/<2=<¶ <3/:/<223/<2/D72:3D7 MERICAN BAR ASSOCIATION “multi-disciplinary movement” dedicated /President William H. Neukom urged to stewardship of the rule of law, one that members of the Class of 2008 to serve as engages educators, members of the clergy “useful citizens” through volunteerism and and media, scientists, and military leaders, pro bono service, and to commit them- among others. “[Reach] out to colleagues selves to preserving and advancing the from those kinds of disciplines — I encour- rule of law at home and abroad, when he age you to do that starting tomorrow,” said addressed them at their hooding ceremony Neukom, a partner with Kirkpatrick & on May 10. Lockhart Preston Gates Ellis in Seattle, and The event in Cameron Indoor Stadium former lead counsel for Microsoft. /0/>@3A7233/93@8/1:G<@/07< 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & 1ZOaa]T &V]\]`SSa 4OQcZbgOeO`RaT]`abcRS\baS`dWQSO\RW\bSZZSQbcOZQ]\b`WPcbW]\a( BVS8cabW\;WZZS`/eO`Ra honor s Advocacy — Katherine Crawford s &AMILY LAW -EREDITH ,EVY members of the graduating class who Duke Law s #OMMUNITY SERVICE +RISTINA *OHNSON s )NTELLECTUAL PROPERTY AND TECHNOLOGY students indicate have made significant contri- s 0RO BONO SERVICE -ATTHEW 7OLFE — Daniel Simon butions to the Law School community. s 0UBLIC SERVICE %MILY *URA s )NTERDISCIPLINARY STUDIES 3AMUEL "URR %CKSTUT s "USINESS ORGANIZATION AND FINANCE 4RAVIS 3OUZA s )NTERNATIONAL TRANSNATIONAL AND COMPARATIVE LAW Integrity — Jennifer Avery — Catherine Gibson Intellectual curiosity — Jennifer Wimsatt s #LINICAL PRACTICE #HRISTOPHER ,OTT Citizenship — Matthew Wolfe s #OMMERCIAL TRANSACTIONS AND BANKRUPTCY s ,ABOR AND EMPLOYMENT LAW -ICHAEL /SWALT Leadership — Kristina Johnson — Sean Memon s ,EGAL THEORY +ISH 6INAYAGAMOORTHY s #ONSTITUTIONAL LAW AND CIVIL RIGHTS !BBY $ENNIS s 0ROPERTY LAW !LEXANDRA 7YATT The ::;/eO`RT]`:SORS`aVW^O\R s #RIMINAL LAW AND PROCEDURE *EROME -AIATICO s 2EGULATORY LAW *ADE 4OTMAN 1][[c\Wbg>O`bWQW^ObW]\ was shared s $ISPUTE RESOLUTION 0AMELA 3ISSON s 4AX AND ESTATE PLANNING !NN -ARIE 4IGANI by Carlos Gabriel Kaplan and Masaya Tsuda. s %NVIRONMENTAL LAW Marjorie Mulhall and Sean Roberts A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S ! 0cWZRW\Uc^RObS 1][[]\aZWP`O`g\SO`Q][^ZSbW]\ ORK IS PROGRESSING Equickly on the Law School’s Star Commons and renovated law library. The projects are to open at the start of the 2008–09 academic year. Duke Law will celebrate the completion of these projects, destined to be hubs of community life, with a building dedication weekend, Nov. 6–8, at which U.S. Supreme Court Associate Justice Anthony Kennedy will be the guest of honor. [ " 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & * Graduates of five years or less and judges, educators, and those who work for the government or for a nonprofit organization may receive special Barrister Donor Society membership for a $1,000 gift annually. VISITING VOICES CaW\UW\bS`\ObW]\OZZOeW\C A Q]c`ba 3f^]aSRb]ROgU`O\RQVWZR`S\^Og WHAT DOES IT REALLY MEAN to say something MANY OF THE SUBSTANCES SHOWN TO CAUSE EPIGENETIC HARM, such as pes- is ‘cruel and unusual?’ Is there any place in the ticides, toxic chemicals, diesel exhaust, and airborne pollutants, are not distrib- debate for international opinion and international law? Some uted randomly in our society. Exposures are often linked with poverty, discriminatory land justices think, ‘No. This is U.S. law … and the people who use, and sub-standard living and working conditions. The populations who are exposed to wroteµ the Constitution weren’t thinking about that.’ Other theseµ substances that cause epigenetic harms are also more likely to have pre-existing people think differently — as Justice Ginsburg puts it, a health conditions, and less likely to have ongoing and effective comprehensive medical decent respect for the opinions of humankind suggests that care. … A just society ought not to permit future generations to experience the debilitat- it doesn’t have to be dispositive, but you should at least ing health effects caused by current environmental exposures when the health effects are know [whether you are an outlier like North Korea or part of known or knowable and the environmental conditions are preventable or remediable.” the mainstream.]” ´Medical ethicist ;O`Y@]bVabSW\ discussing the downside of epigenetics ´Judge2WO\S> E]]R of the United States Court — modifications of gene expression that do not involve changes in the DNA sequence. of Appeals for the Seventh Circuit, addressing the role of inter- While epignetics contains tremendous promise for identifying the cause of many serious national law in U.S. courts on Nov. 5, and discussing Medellin diseases and possibly leading to cures, it also raises serious ethical and legal challenges v. Texas, then under consideration by the Supreme Court. While including those relating to environmental justice and the need for universal health care, there are many noncontroversial issues on which international said Rothstein. The Herbert F. Boehl Chair of Law and Medicine and director of the Institute and foreign law would apply, she said, “some of the greatest for Bioethics, Health Policy and Law at the University of Louisville School of Medicine, passions” have centered on what the Eighth Amendment really Rothstein delivered Duke Law School’s seventh annual Rabbi Seymour Siegel Memorial requires. Lecture in Ethics on Feb. 26. The lecture is endowed by labor lawyer Allen Siegel ’60. A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S # What brought about the subprime crisis? Conflicts between the interests of mortgage lenders and investors; complacency on the part of investors; and complexity in the bundled mortgage products they purchased that made it difficult to assess the risk. The motive underlying it all: cupidity.” ´>`]TSaa]`AbSdS\: AQVeO`QhAbO\ZSg/ AbO`>`]TSaa]`]T:Oe0caW\Saa $ 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & THE CREDIT MELTDOWN A TALE of CONFLICTS and CUPIDITY >emj^[IK8FH?C;CEHJ=7=;9H?I?I X[YWc[W9H;:?J9H?I?IWdZj^h[Wj[d[Z j^[K$I$ÄdWdY_Wbioij[c CZ Debra Cassens Weiss A LUNCHTIME PANEL DISCUSSION on the subprime mortgage crisis drew a standing- room-only student audience on a rainy Friday in early April. As moderator, Professor John Weistart, who teaches consumer transactions, was quick to put a human face on the crisis. “Statistics suggest that in 2007, about 1.3 million households received some sort of notification that foreclosure was imminent, indicating that they are in default. The numbers are likely to be higher this year,” said Weistart ’68. “This is a topic that is very, very important to a lot of ordinary people who are leading ordinary lives — consumers who are really the core of our economy. Right now, they are feeling tremendous amounts of pressure. What is the effect of the pressure that comes from loan defaults and foreclosures on divorce? What effect does that have on children? What effect does that have on movement and opportunity and upward mobility?” A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S % Many of these subprime borrowers were /^^]`bW]\W\UPZO[S( stood in the way of landmark state lending and are “credit challenged,” noted panelist U`SSRO\R`SUcZOb]`gUO^a laws when the Office of the Comptroller of Donald Lampe ’82, a partner with Womble Some critics blame former Federal Reserve the Currency declared, in 2004, that nation- Carlyle Sandridge & Rice and a specialist in Chairman Alan Greenspan for helping ally chartered banks and their subsidiaries consumer credit, among other areas. “They spark the subprime mortgage crisis. He were exempt from state legislation. are often living paycheck to paycheck and created a housing “bubble,” the critics say, These federally regulated banks weren’t have little margin for error,” said Lampe, by slashing interest rates after the Sept. 11 subject to anti-predatory lending laws in who chairs the American Bar Association’s attacks. With easy access to credit, more the states that enacted them, discouraging Consumer Financial Services Committee’s people jumped into the housing market, state regulators who wanted to improve Predatory Lending Task Force. “Job loss, sometimes on a speculative basis, and bid standards in the subprime market, Ernst divorce, illness, or any change in life circum- on homes for sale, causing housing prices said. “Federal preemption proved challeng- stances that leads you not to have the same to climb. ing for state regulators. On the one hand, paycheck, puts you in trouble very quickly.” With the boom came a big increase they wanted to improve standards in the Eventually it will not just be “consum- in home ownership, pleasing politicians subprime market. On the other, preemption ers” who will be harmed, cautioned panelist who didn’t want to question whether there made it difficult for them to feel like they Keith Ernst JD/MPP ’96, senior counsel was a downside. By 2005, 69 percent of could maintain a level playing field, since for the nonprofit Center for Responsible Americans owned their own homes, giving national banks were exempt.” Lending, which advises policymakers on the U.S. one of the highest home owner- But not everyone is so hard on predatory lending issues. “It will be OFJHI ship rates in the world. Greenspan and the federal government. CPST. It will be children that grow up on a “The purchase of homes and the financ- “It’s very easy to say there’s a bubble in block with eight boarded-up houses and the ing of homes were the key engines of retrospect, but when home prices or asset graffiti and crime that accompany them.” growth,” said James D. Cox, Brainerd prices are going up, it’s very hard to say,” The view is grim beyond neighborhood Currie Professor of Law and an expert in said Paul Bennett, senior vice president and streets. On Wall Street, the housing boom corporate and securities law. “There was no chief economist of NYSE Euronext and a of the late 1990s and early 2000s has reason to shoot this goose that was laying GCMC board member. Unregulated lend- become a bust that continues to reverberate this golden egg, certainly not as you go into ers and independent brokers also played a around the country and the world. the election period in 2004.” significant role. How did this happen? And what can be The run-up in housing prices and a done? Answers and ideas abound among free-for-all lending environment caused Duke Law scholars, alumni, and members of everyone to want a piece of the action. µ0cPPZSa¶P]``]eS`a the Global Capital Markets Center (GCMC) Borrowers wanted more home than they P`]YS`aO\RPWUPcQYa advisory board — many of whom have wit- could afford. Mortgage brokers churned out Profits were plentiful in the run-up to the nessed the run-up to the meltdown first-hand. loans with onerous terms to make more housing bubble, said George Krouse Jr. ’70, Steven L. Schwarcz, the Stanley A. Star money. Lenders quickly sold off mortgages of counsel at Simpson Thacher & Bartlett in Professor of Law & Business and the found- to clear their books so they could make new New York and a GCMC board member. ing director of GCMC, began studying the loans and earn more fees. And investors “The subprime market really started potential for a financial crisis before it was who bought bundled mortgages sought to take off in 2004 and 2005, and that “a twinkling in anyone’s eye,” he said. His high returns on their investment, with little was accompanied by a lot of entrants into summation of what went wrong: DPO»JDUT regard for risk. the mortgage origination business who between the interests of mortgage lenders Some of those who point a finger at were not necessarily the traditional mak- and investors; DPNQMBDFODZ on the part of Greenspan — who in turn blames global ers of mortgage loans,” said Krouse. “The investors; and DPNQMFYJUZ in the bundled forces for the low rates — see his actions as newcomers included a proliferation of mortgage products they purchased that emblematic of a lax regulatory environment mortgage brokers, largely unregulated and made it difficult to assess the risk. The created by the federal government. Ernst, unlicensed, staffed by personnel with little motive underlying it all: DVQJEJUZ. whose organization aims to encourage home or no prior experience in the mortgage ownership and help homebuyers accumulate lending area and having little or no concern equity in their homes, is one of them. regarding the borrower’s ultimate ability to Ernst believes the national regulators repay the loan.” Many subprime borrowers were and are credit challenged. “Job loss, divorce, illness, or any change in life circumstances that leads you not to have the same paycheck, puts you in trouble very quickly.” ´2]\OZR:O[^S¸& QVOW`]T bVS/0/¸a1]\ac[S`4W\O\QWOZAS`dWQSa1][[WbbSS¸a>`SROb]`g:S\RW\UBOaY4]`QS & 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & The subprime market attracted newcomers to the mortgage origination business. “[These] included a proliferation of mortgage brokers, largely unregulated and unlicensed, staffed by personnel with little or no prior experience … and having little or no concern regarding the borrower’s ultimate ability to repay the loan.” ´5S]`US9`]caS8` ¸% ]TQ]c\aSZAW[^a]\BVOQVS`0O`bZSbb Ernst added that these bro- were worth. Lenders weren’t The securities are issued by classes of kers made money based on the willing to refinance. payment priority known as “tranches.” number of loans they produced, Some borrowers had trouble Purchasers of senior securities are first in and often made bonuses when from the get-go because they line for payment if some of the receivables borrowers accepted higher had lied about their income go into default, while those who buy the interest rates and fees. and assets, and some brokers lower junior or mezzanine levels are further The Center for Responsible who were eager to collect com- along in the payment line. The trust pays Lending found certain loans missions effectively sanctioned the investors with cash flow from the assets particularly troublesome, he the practice by not requiring that it holds. If the trust that holds the said. These included loans with documentation. And lenders also assets goes belly up, creditors can’t come low teaser rates that reset in didn’t always insist on documen- after the original lender. two or three years to a higher tation, according to Ernst, fearing Currently four out of five mortgages amount, penalties for prepaying that if they sought to tighten up are securitized, including a large share loans early, interest-only loans on brokers’ practices, the “mort- of subprime mortgages. Michael H. in which the principal wasn’t gage brokers would simply take Krimminger ’82, special adviser for policy amortized, and balloon loans their business elsewhere.” to the chairperson of the Federal Deposit with lower interest rates that Changes in the loan market Insurance Corp., cited estimates that by require all of the money to be also affected lenders’ oversight. 2007, almost 100 percent of subprime and repaid in one fell swoop. Just 30 years ago, lenders held on other high-risk mortgages were securitized, “On one hand, the subprime to the mortgage loans they origi- up from 73 percent in 2004. market held out a promise for the democ- nated, and they had an incentive to make When everything goes right, everyone ratization of credit,” said Ernst. “It made sure the borrower could pay. But in the in the securitization chain can profit, said home loans and lending credit available to next few decades, that changed. Mortgage Cox. Lenders earn fees for originating and communities that had traditionally been loans began to be sold, bundled, “sliced and servicing the mortgages, and then sell the denied credit. Over time, however, that diced,” and sold again, in bits and pieces, to loans at a profit. The lenders then use the challenge changed from access to credit to investors as securities. cash received from the trust public offer- understanding the terms, suitability, and ing to make more loans. Ratings agencies sustainability of credit.” such as Standard & Poor’s evaluate the If some borrowers weren’t able to figure ;]`bUOUSaSQc`WbWhObW]\( securities, earning fees from the invest- out the fine print or the risk their loans W\Q`SOaSRZ]O\aRSQ`SOaSR ment banks. “And the investment banks carried, others didn’t care. “Because of the OQQ]c\bOPWZWbg are more than happy to peddle the stuff increasing appreciation in home values, The process of bundling and selling and make their underwriting commissions they expected to be able to resell their house income-producing assets is known as along the way,” he said. at a higher price, repay the loan, and pocket securitization. Before he entered the “There’s a lot of self-interest in the the profit,” explained Krouse. legal academy, Schwarcz helped pioneer financial markets, particularly if people These buyers never expected the housing the industry while representing many of can make money and pass the risk on to bubble to burst, Cox added. “They suffered the world’s leading banks and financial someone else,” observed Cox. “The people from an acute case of over-optimism. And institutions in structuring innovative generating this paper and selling this stuff there was nothing in lending practices to capital market financing transactions. He all made money and didn’t have to suffer tell people to step back and take a deep explained how it operates in a 1994 arti- consequences when the chickens came breath,” he said, “because there was too cle: Lenders sell assets such as mortgages home to roost.” much money to be made.” or credit-card receivables to investment In the early 1980s, legal and regula- When lower introductory interest rates banks, which bundle and transfer them to tory changes cleared the way for banks to began to reset to higher levels in 2005 a trust known as a special purpose vehi- engage in securitization, introducing the and 2006, some borrowers couldn’t pay. cle. The trust issues securities — either practice into the mortgage market. Lenders Those who thought refinancing would “mortgage-backed” or “asset-backed” secu- bundled and sold their mortgages to the be an option often ran into another prob- rities — and sells them to investors such government-sponsored mortgage com- lem: Their home values had plummeted as insurance companies, hedge funds, pany, Fannie Mae, which had established and they owed more than their homes and pension funds. mortgage lending guidelines that had to A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S ' Mortgage securitization has created a disconnect between investors and banks originating loans. “The investors … are not coming through the local community but through Wall Street or, increasingly, from foreign countries. There is some problem communicating and evaluating the risk over the long psychic and physical distance between who is choosing the borrowers and who is putting in the money.” ´>`]TSaa]`8]V\ESWabO`b¸$& be satisfied. Traditional guidelines capped funneling more money to lenders and CDOs because the slicing and dicing mortgage amounts at two or two-and-a-half enabling them to make credit available created many different kinds of securi- times a borrower’s income. to more people more quickly than ever ties. Still, in an article forthcoming in Then, in the 1990s, other buyers, such before. “The most important role of secu- the .JOOFTPUB-BX3FWJFX, he speculates as hedge funds eager to buy high-yield ritization is to make credit available very that the fear of damaged reputations may debt, began to snap up these securities and broadly, and this is a good thing,” said have outweighed profit motives. He posits the underwriting guidelines went by the Bennett of NYSE Euronext. Corporations instead that the ratings agencies simply wayside. In recent years, global investors also increasingly rely on the practice to may not have foreseen the depth of the entered the game and mortgage securi- access money. housing market collapse and the full tization flourished as “the entire world “Securitization has done a terrific job at extent of fraud by borrowers, or perhaps became one capital market,” said Jason expanding credit and making it less expen- even failed to understand that a failure of H.P. Kravitt, deputy chair of the American sive,” agreed Kravitt. “Nobody that I know mortgage-backed securities held by CDOs Securitization Forum, founder of the secu- of is proposing to end securitization.” would in turn affect the value of other ritization practice at Mayer Brown, and a Its downside, however, has been creating securities in these investment vehicles. GCMC board member. a disconnect between the financial interests The ratings agencies evaluated pooled As underwriting standards waned, of the ultimate investors and those of banks loans with the help of the computer mod- another change was taking place: A newer originating the loans. “The incentives for els. But the historical data fed into the com- and riskier securitized product was created care have been diffused,” said Weistart. puters didn’t include loans made to borrow- that combined asset-backed and residential “The investors — the people coming up ers who were unlikely to repay. Before sub- mortgage-backed securities and put the with cash for their mortgages — are not prime mortgages became a substantial part riskiest tranches back into the securitiza- coming through the local community but of the mortgage business, mortgages were tion blender. The senior 80 percent to 90 through Wall Street or, increasingly, from considered a golden asset. “Traditionally percent of these pooled lower-level tranches foreign countries. There is some problem the risk was that people would prepay their would get a top AAA rating from the bond communicating and evaluating the risk mortgages faster than the investor had ratings agencies. These products were over the long psychic and physical distance expected,” said Bennett. “You didn’t see known as collateralized debt obligations between who is choosing the borrowers and many people defaulting.” (CDOs) of asset-backed securities. who is putting in the money.” Even if ratings agencies led unsuspect- Investors who bought a senior inter- ing CDO investors down a primrose path, est in these CDOs relied on ratings that why didn’t those investors, prospectuses in were higher than the ones given to the 0`SOYaW\bVS hand, do their own due diligence? In his underlying securities. In effect, they had aSQc`WbWhObW]\QVOW\ forthcoming article, Schwarcz speculates senior rights to the worst security tranches. The leading ratings agencies gave high that investors may not have understood “Now you’ve added leverage on leverage,” grades to some mortgage-backed invest- the complex security transactions or the explained Robert Cochran ’74, the chair- ments that later went bad, particularly in complicated prospectuses, sometimes hun- man and chief executive officer of Financial the case of collateralized debt obligations. dreds of pages in length, or may have been Security Assurance Holdings Ltd., another Standard & Poor’s, for example, has down- swept up in the euphoria that accompa- GCMC board member. “Things have to go graded nearly $200 billion in CDOs. nied the housing bubble. In any event, he very right not to have losses.” Cox suggested the ratings companies said, they didn’t consider the possibility of A subsidiary of Cochran’s company may have been pressured by investment worst-case scenarios. that insures investors in securities backed banks to rate the CDOs highly. “The Schwarcz has been thinking about those by mortgages and other assets, refuses to underwriters would go out and shop for a for the past year. He poses one in which insure any interest in mezzanine-level secu- favorable high rating, and the ratings agen- the subprime crisis spins out of control, rities issued through CDOs, he said. “We cies realized that if they didn’t give them causing the components of the world’s saw this as a form of double leverage that the rating [sought] they wouldn’t get paid financial system to collapse like so many would potentially have high loss severity.” for it,” he said. rows of dominoes. His article, “Systemic There is general agreement that securi- Schwarcz observed the temptation Risk,” is slated for publication in the tization has been a boon to the economy, may have been greater in the case of (FPSHFUPXO-BX+PVSOBM. 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & Once investors realized that highly-rated subprime mortgage- backed securities could lose money, they began shunning all complex securitization products. There was basically a contagion effect and, as a result, market prices started plummeting.” ´>`]TSaa]`AbSdS\AQVeO`Qh BVSacP^`W[Sa^W`OZ could end up seizing the securities that had discipline approach under which regulators With lenders having suffered well over $100 been pledged and being forced to take even would attempt to ensure that market par- billion in losses from subprime mortgages more write-downs. ticipants exercise the type of diligence that and securitized products, the outlook on But many banks are already affected enables the markets to work efficiently.” Wall Street is bleak. “The big write-downs because of their connection to affiliated off- Schwarcz views the Federal Reserve as affect not only the reported earnings of these balance sheet entities known as structured the most logical agency to play the role of companies but their capital base, which investment vehicles (SIVs). These vehicles liquidity provider, but he believes the func- causes them to be much more conservative help more highly regulated banks compete tion also could be privatized or could be in their lending activities,” Krouse explained. with investment banks, which are permitted administered by an international entity. The “Even though interest rates have come down to operate with higher debt and lower capi- new entity could be funded with premiums quite a bit, liquidity is very limited.” tal reserves. While they helped banks keep charged to market participants or other It is the modern-day equivalent of the certain high-risk investments off of their measures that don’t burden the taxpayers. old-fashioned bank run, played out in a sys- balance sheets, the current crisis has led tem where investors, rather than banks, are many to pull them back in, replacing capital supplying money to lenders by investing in raised through SIVs with depositor funding. /QbW]\¬O\R`SOQbW]\ their securitized assets through the capital “As banks put these assets back on their At press time, the Federal Reserve had markets. Seeing losses in mortgage-backed balance sheets, requiring additional regula- already taken several unprecedented steps securities, fearful investors stopped buying tory capital, their appetite to make new mort- in an effort to avert a financial crisis. them. Some investors started to sell, but the gage loans and corporate loans has dramati- The Fed cut its benchmark interest rate sell-off wasn’t confined to securities based cally diminished,” Cochran explained. and began lending money to banks through on bad mortgages. For several months, Schwarcz has seen a new program called the Term Auction “Once investors realized that highly- conditions that could portend a systemic Facility. In March it agreed to extend up to rated subprime mortgage-backed securities collapse of the financial markets. He said $200 billion in credit for the first time to could lose money, they began shunning all his wife asked him to estimate the chances top investment banks and accepted securi- complex securitization products,” accord- of such a collapse. “I told her about 25 per- tized mortgages as collateral. And it encour- ing to Schwarcz. “There was basically a cent.” He took his warning about the threat aged the sale of Bear Stearns with a $30 contagion effect and, as a result, market of economics shocks — such as market billion guarantee. prices started plummeting.” panic or institutional failure — triggering The Fed is also considering regula- Hedge funds holding these securities the failure of a chain of markets or institu- tory changes. Concerns about misleading had another problem. They were able to tions that could threaten the whole economy mortgage ads would be addressed through leverage their wealthy clients’ money with to Capitol Hill, when he testified before the additional regulations under the Truth bank loans that helped them make more U.S. House of Representatives Committee in Lending Act. And proposed regulatory investments, and they often pledged their on Financial Services last October, and has securities as collateral. When these began to written extensively about it since. plunge in value, the banks asked the hedge He also has crafted a proposal to help AQV]ZO`aVW^T]`bVQ][W\UT`][ funds to put up more money or assets. To prevent a systemic collapse of the financial >`]TSaa]`AbSdS\: AQVeO`Qh comply, the hedge funds had to sell even markets through federal regulation. He is `SZObW\Ub]bVSacP^`W[SQ`WaWa( more securities, driving down the prices backing the creation of a “liquidity provider AgabS[WQ@WaY'%5S]`USb]e\ further. It became a vicious cycle. of last resort” that could swoop in and buy :Oe8]c`\OZ & “I compare this to a massive game of securities in failing markets, helping to sta- >`]bSQbW\U4W\O\QWOZ;O`YSba( musical chairs where over a short period bilize values. :Saa]\aT`][bVSAcP^`W[S ;]`bUOUS;SZbR]e\'! “The liquidity provider of last resort of time half the chairs in the room were ;W\\Sa]bO:Oe@SdWSe & removed,” said Cochran. “There isn’t would provide liquidity to help prevent criti- ;O`YSbaAgabS[WQ@WaYO\R enough stable funding available to buy all cal financial intermediaries from default- bVSAcP^`W[S;]`bUOUS of the securities that have been created. The ing and to help prevent defaulting critical 1`WaWa$ A]cbVS`\;SbV]RWab market prices must go down until a new financial intermediaries from failing. It also C\WdS`aWbg:Oe@SdWSe & equilibrium is reached and investors say, would provide liquidity to capital markets 2WaQZ]ac`S¸a4OWZc`SW\bVS ‘At that price I can afford to take the risk.’” as necessary to keep them functioning,” AcP^`W[S;]`bUOUS1`WaWa & If hedge funds can’t produce enough he said in his testimony. “This approach CbOV:Oe@SdWSe money to meet the margin calls, banks should be supplemented by a market- A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S Not everyone can afford to own and maintain a house, but we shouldn’t make it unattainable because of this crisis. Many Americans can maintain a home and a mortgage if given suitable products. The problem is not the extension of credit to these consumers, but the extension of this credit.” ´9SWbV3`\ab¸'$aS\W]`Q]c\aSZT]`bVS1S\bS`T]`@Sa^]\aWPZS:S\RW\U gies and what proposals are Wall Street. “If my tax dollars are going to politically feasible.” be used to bail these guys out, I don’t want Under Treasury Secretary them coming back to the till during the Henry Paulson’s sweeping next crisis because they were not subject to proposal, the Fed would act appropriate supervision.” as a “market stability” sheriff At the level of retail mortgage lending, that could monitor any com- he said, “overwhelming regulation” has ren- pany that could destabilize dered the process incomprehensible. “We the markets. He also would should scrap what we’re doing and settle on create a Mortgage Origination something that is consumer focused, sim- Commission that grades the ple, transparent, and comprehensible for states on their subprime over- the average person.” Not everyone might sight, a tool that would help be able to own a home, Lampe added, sug- investors evaluate which states gesting that there may be a need for more allow risky mortgage practices. affordable, quality rental housing. Schwarcz has reviewed “Not everyone can afford to own and Paulson’s proposal and said it maintain a house, but we shouldn’t make “appears to contemplate the it unattainable because of this crisis,” Fed gaining the power to act Ernst countered, adding that his organiza- as a liquidity provider of last tion is pushing for policy reforms that will resort potentially along the encourage lenders to lend responsibly. changes under the Home Ownership and lines I propose.” “We need to take the worst options off the Equity Protection Act (HOEPA) would At the Law School’s April lunchtime table. We need to get pricing where con- help address abuses related to prepayment forum, Keith Ernst and Donald Lampe — sumers can see it — in interest rates, so penalties, lending based on little or no both of whom have testified in Congress that it shows up in the monthly payments documentation, and lenders’ failure to con- on issues related to subprime mortgage — and not have it hidden in pre-payment sider borrowers’ ability to repay their loans, lending — outlined their preferences and penalties and elsewhere. Incentives need said Krimminger of the FDIC. HOEPA is concerns regarding the flurry of proposals. to be aligned so we have lenders who are a federal law that applies to both federally- While he hopes to see “thoughtful systemic doing their jobs and borrowers have a and state-chartered lenders that make high- risk regulation that will come from a very fighting chance to make it through that interest loans. high level,” free-market supporter Lampe loan. That’s where we start. Congress continues to debate new laws said that if investment banks accept govern- “Many Americans can maintain a home that would help struggling homeowners ment funds to help resolve liquidity short- and a mortgage if given suitable products,” and reform mortgage lending practices. falls, then the firms should be included in he said. “The problem is not the extension The Senate passed a bill in April that any strong, top-down regulation. of credit to these consumers, but the exten- would provide $150 million for mortgage “I don’t believe you can have it both sion of UIJT credit.” [ counseling, $10 billion in tax-exempt ways,” said Lampe, noting that the sub- — %FCSB$BTTFOT8FJTTJTBGSFFMBODFXSJUFS bonding authority for states to refinance prime crisis is just the latest disaster to rock BOETFOJPSXSJUFSGPSUIF ABA Journal. mortgages, a tax credit for buyers of fore- closed homes and a tax break for home building. Other congressional proposals 2cYS¸a5Z]POZ1O^WbOZ;O`YSba1S\bS` would establish duties of fair dealing for Taking an interdisciplinary approach that encompasses business, finance, legal, and public policy per- lenders and require licensing of mortgage spectives, the Global Capital Markets Center blends the strengths of Duke University’s Law School and loan originators. the Fuqua School of Business to examine capital markets and their global connections. In addition to The Center for Responsible Lending’s its focus on corporate governance, the GCMC conducts research and develops curriculum in the areas of Ernst said the proposals could change global debt and equity capital markets, venture capital and private equity, structured finance and secu- before they are finalized. “Things are fluid ritization, and securities regulation. The GCMC’s advisory board includes jurists and leaders from some of and changing on a weekly basis as people the world’s top law firms and corporations, a number of whom are alumni. [ try to identify both what are the best strate- 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & AWYERS SHOULD ASPIRE to :be not just “wise counselors” but “leaders with accountability and responsibility,” according to Benjamin Heineman Jr., former senior vice president and general counsel for GE. Heineman has challenged law schools to do more to prepare lawyers for leadership positions in civic and professional life. It is a vision shared by Duke Law Dean David F. Levi. As a judge, a legal historian, and a leader in the legal academy, Levi has had ample opportunity to observe the ways in which lawyers serve as leaders, both within and beyond the legal profession. Now, he’s taking advantage of his role as dean at Duke Law to study the reasons that lawyers are so uniquely suited to leadership, to explore opportunities for better preparing law students for leader- ship roles, and to help instill in students a sense of responsibility to serve as leaders within their communities and their profession. “At all levels of society and in a broad range of endeavors, lawyers innovate, problem solve, clarify, persuade, and defend,” Levi says. “They knit together our social fabric, work- ing in the interstices between groups, classes, races and institutions.” @34=@;7<5:35/:32C1/B7=<( :OegS`aOa:SORS`a a1= A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S ! Lawyers are the “go-to guys” in society, Levi notes, because of in this regard — helping them understand the inherent value of the unique training they receive. “Clarity of thought, the ability to taking risks and adapt to new organizations and cultures, and simplify, to articulate, and to persuade, are part of this training,” “develop different perspectives on problems because of different he says. “The courage to take a position and the equal courage to institutional roles.” modify and compromise in the face of reasoned opposition are He has done just that throughout his own career. Having started also part of the lawyer’s tool kit and part of what we teach.” out as a public interest lawyer litigating for the rights of the men- But that training must continue to evolve as lawyers practice tally handicapped, Heineman later served as an assistant secretary in a more interdisciplinary, more international, and more interde- for policy at the Department of Health, Education and Welfare and pendent political, economic, and legal landscape. To explore how then as a constitutional litigator in private practice. These experi- leadership development can best be addressed at Duke Law, Levi ences helped him become “a better general counsel” at a huge mul- has created the Leadership Working Group, a task force of faculty, tinational corporation, he told law students. students, staff, and alumni co-chaired by James Cox, Brainerd Heineman is a graduate of Harvard College and Oxford Currie Professor of Law, and Peter Kahn ’76, the former chair of University, where he was a Rhodes Scholar, and Yale Law School, the Law School’s Board of Visitors and a partner at Williams & where he was editor in chief of the :BMF-BX+PVSOBM. He served as Connolly in Washington, D.C. The group is considering new pro- a law clerk to United States Supreme Court Justice Potter Stewart. grams, a lecture series, and curricular changes that could provide Today he serves as a senior fellow at the Belfer Center for leadership development opportunities for students and graduates. Science and International Affairs at Harvard’s John F. Kennedy The group brought Heineman to the Law School in January School of Government, a distinguished senior fellow in Harvard to share his views on law and leadership with students and Law School’s Program on the Legal Profession, and a senior adviser faculty. A senior fellow at Harvard Law School and Harvard’s to the Center for Strategic and International Studies. His research Kennedy School of Government, and former GE general counsel, focus includes globalization, anticorruption, corporate citizen- Heineman is a leading advocate for rethinking legal education to ship, dispute resolution, and the legal profession. His latest book, prepare lawyers for civic and professional leadership. His article on global ethics, is )JHI1FSGPSNBODFXJUI)JHI*OUFHSJUZ (Harvard on “Law and Leadership” was published recently in the +PVSOBMPG Business Press, June 2008). -FHBM&EVDBUJPO. Heineman sat down for an informal chat about law and leader- Heineman urged law students to seek leadership opportunities ship development with Levi, Cox, and Kahn. throughout their lives and professional careers, and challenged law schools to do more to “prepare and inspire” their graduates " 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & 2/D72:3D7(8IZ BUUIJTQPJOUJOZPVS :3D7(:PVTFFNUPIBWFBEFNPDSBUJD :3D7(4PXIBUTPSUTPGBEWJDFEPZPV DBSFFS IBWFZPVEFDJEFEUPGPDVTPO WJFXPGMFBEFSTIJQ:PVBSFUBMLJOH IBWFGPSBMBXTDIPPMUIBUXPVMEMJLF UIJTJTTVFUIFMFBEFSTIJQDBQBDJUZPG BCPVUXJTEPN ZPVBSFUBMLJOHBCPVU UPEPNPSF UIFMFHBMQSPGFTTJPO CFJOHWJTJPOBSZ ZPVBSFUBMLJOHBCPVU QFPQMFXIPBSFBCMFUPTFFBDSPTT 637<3;/<( I admire what you’re doing 03<637<3;/<( I started out as a public USBEJUJPOBMCPVOEBSJFTBOEXIPIBWF already, which is to focus on giving people interest lawyer and I ended up as the gener- JOUFSEJTDJQMJOBSZTLJMMT BOEXIPBSF really different alternatives in the third year. al counsel of one of the biggest companies DVSJPVTBCPVUPUIFSQFPQMFBOEPUIFS Clinical work is important because it gives in the world. I have worked in law firms DVMUVSFT"OEUIBU±TTPNFUIJOHUIBU people a sense of what it’s actually like to and government. I feel deeply that law- *UIJOLBOZMBXHSBEVBUFDBOBTQJSF practice and it’s a great way to learn. But yers have enormous talent but often don’t UP:PVBSFO±UUBLJOHB®USJVNQIBMJTU¯ I also think in the third year it’s possible receive the proper training at a young age WJFXPGUIFTJOHMFMFBEFSBUUIFIFMN for people to explore other disciplines and to be leaders as they mature and advance PGBOPSHBOJ[BUJPO other ways of thinking about problems so in different institutions. So I think it is an they develop this breadth of vision, this gen- extremely important subject for law schools 637<3;/<( I agree. We need a very broad eralist capacity that they’re going to need to address because people need a vision view of what leadership means. even if they go out and specialize, because when they’re young. As they get older We are taught in law school that Learned they will come back and be generalists later. they’ll have positions of greater responsibil- Hand, Justice Brandeis, Justice Frankfurter, Third year can be spent broadly learn- ity, and they’ll need a different set of skills and Justice Douglas, are heroes. But there ing how to integrate many different per- than just knowing the case method. are many other heroes who have been law- spectives and define problems correctly to yers — who have occupied jobs in the pri- get to the right solutions. I think that’s a vate sector, the nonprofit sector, the inter- very important mission for the law school national world — who are not just in the to pursue. :3D7(8IBUJTJUUIBUMBXZFSTPGGFSUIBU court system but are in the legislatures and PUIFSQSPGFTTJPOTDBO±U in the executive branch, who are leaders of intellectual movements that are aimed at 637<3;/<( I think all professions have changing the world. People need a sense of 8/;3A1=F('JOBODJBMTFDVSJUZBOE the possibility of creating leaders. Indeed, the different kinds of careers that you can JOEFQFOEFODFOPXMPPNWFSZMBSHFJO public policy schools and business schools have with a law degree, rather than just the TUVEFOUT±NJOET5PBHSFBUFYUFOUJU usually say they are developing leaders traditional ones of joining a private firm or BSJTFTGSPNBDDVNVMBUFEDPMMFHFBOEMBX and law schools rarely do. Duke Law is a taking legal jobs in the government. TDIPPMEFCU#VUQBSUPGJUSF»FDUTXIBU±T notable and wonderful exception with the We have to excite people about all these HPJOHPOJOTPDJFUZ *UIJOLNPSF Duke Blueprint. possibilities. We have to give them the VODFSUBJOUZ QPTTJCMFºOBODJBMJOTFDVSJUZ My concern is much more about hav- capacity when they get there to at least BUIPNF)PXDBOXFJOTUJMMJOUIF ing the skills and capabilities to be a leader understand how to define the world — how TUVEFOUTBCSPBEFSDJWJDNJOEFEOFTT when you get there, rather than matters to see the world. I think law schools are still of leadership style. It’s really about how to stuck in the case law method. They’ve got to 637<3;/<( I agree — everybody is preoc- manage an organization and the “qualities broaden the vision of their students. cupied with money. Materialism has been of mind” that give you a breadth of vision in I believe deeply in what I would call a a constant theme in American history, terms of how you define problems and how “general professional education,” where stu- and we’re now at the height of the cycle in society works. What kind of perspective do dents gain a sense not only of the core com- terms of avarice. Students are inundated you have on society? What kind of knowl- petencies of the law, but the perspectives, at with offers from law firms. Recruiters show edge do you have? How do you define prob- a minimum, of other professional schools up in legion on campuses with all sorts lems? How do you mobilize people, which — for example, public policy and business. of blandishments and summer job perks. is partly leadership? How are you able to I’ve been in “big law,” “big business,” and “Recruiters” don’t come from the public and answer questions about what is right, not “big government,” and virtually every prob- non-profit sectors, so the alternatives are just what is legal? These are all the aspects lem I had involved public policy questions, not presented as vividly. of leadership aptitude and capacity. technical legal questions, and things that I think one approach is to present a would impact the economy and business. course on “heroes” in the law, where you You need to understand those implications give people a sense that there are lawyers, to be effective and create durable solutions other than Supreme Court justices, who that really work. have had remarkable, impactful careers in many different ways. That would be a kind of intellectual history of great people. A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S # And you have to show students, through China. A practitioner who’s been involved and empirical level with some of the hard- career counseling, that other alternatives in that could come in and develop a mod- est problems we’re facing, whether they exist. The public interest firms, the public ule for an international policy course, are domestic problems or global issues defender, the U.S. attorney, the legal adviser collaborating with a law professor to that business people on the front lines to the State Department, the World Bank, produce a stimulating case that would let don’t understand. GE is on the forefront of the European Bank for Reconstruction the students look at how to deal with this globalization: I had to race to keep up, run- and Development — these are places that issue from the point of view of an NGO, ning a huge organization and trying to read don’t recruit, so you’ve got to go find them. from the point of view of the Chinese and learn at breakneck speed. So much I think the school has a great obligation government, from the point of view of this was happening so fast. We definitely need to present students with a whole array of government, from the point of view of the help from people who can step back, but careers in public service, the nonprofit CEO, from the point of view of the board who are answering questions that are very world, and even non-legal jobs. of directors, and from the point of view sophisticated and analytic in an empirical In addition to learning about rules and of the general counsel. There are a lot of way — questions, I must stress, that are of norms, lawyers should be learning about different roles that people play, and work- value to us. how organizations work and about how to ing out the issue will involve law, ethics, get things done, not only in an organiza- reputation, business and geopolitical risk, tional way, but in a political way. And the among other considerations. You would law school should be presenting to them have a very rich discussion over a period of 9/6<(8IBUUSBJOJOHTIPVMEXFPGGFS opportunities where they can use the skill time, ranging from the high policy to the PVSHSBEVBUFTMBXZFSTºWFZFBSTPVU they have — how to reason about rules — very detailed implementation questions. PSNPSF but in broader institutional contexts where Another way to connect with the profes- many other skills are also required. sion would be to have a systematic way of 637<3;/<( Don’t bring them back just agenda-setting for the professors. At regular to refresh them on the law. Offer them a intervals gather together a group of 10 great chance to gain a broader experience with people in the profession — in environmen- other professions and disciplines. There >3B3@9/6<(8IBUBSFZPVSUIPVHIUT tal law, in the securities area, in global com- would be some combination of executive POIPXXFCSJOHUIFMBXTDIPPMDMPTFS petition law, in business ethics, drawing education, because business schools and UPUIFQSPGFTTJPOBOEUIFBMVNOJ 8IBU from firms and corporations — people who public policy schools obviously have pro- SPMFEPZPVTFFBMVNOJIBWJOH JGBOZ are really on the front lines, to outline the grams for people in mid-career, and if you issues that they are facing. Some of that will could add the law to that and add lawyers 637<3;/<( I believe strongly that we’ve be articulated as practical issues that the to the mix, and even have some courses got to offer more in law classes than just academics may turn into broader problems, where you have lawyers, public policy types appellate cases. We should have people but hearing the particular challenges people and business types, so there was a mix [of come in to develop new cases with the in the real world are struggling with and all three disciplines], then I think it could professors that would be enormously rich how they work through those issues may be really interesting — and very stimulating in terms of uncovering the multiplicity of generate all sorts of interesting ideas about for participants. [ factors in real world decisions. research and analysis that could fertilize, if We should basically define a problem, you will, the academic soil. like global sourcing, that raises every issue I have this old-fashioned view that law from the fundamentals of globalization professors should be public intellectuals. down to the technicalities of how do you The critical mass of law school ought to be deal with third-tier suppliers in western dealing at a very sophisticated intellectual $ 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & 4OQcZbg4]Qca /RdWQST]`O \SeOR[W\Wab`ObW]\ From: Donald L. Horowitz P.O.T.U.S.P Re: Democratization policy . O . T . Advice: Embrace liberalization, U . de-emphasize elections, S . let constitutions evolve HE NEXT PRESIDENT Bshould rethink democrati- zation policy in a more subtle way than we’ve seen in the recent past. We should reduce our intense focus on elections and constitutions and instead encourage liberalization when democratization is not in American interests. Where possible, we should facilitate the maximum dissemination of “neighborhood effects” — positiveositit ve ddevelop-evele op- ments in one country that can influence others within a region. DUKE LAW Our democratization policy has long included an addic- FACULTY MEMBERS tion to early constitution writing. It’s often better to proceed slowly and let constitutions evolve over a period of years. In OFFER INSIGHTS Iraq we unnecessarily rushed the process, largely for domes- tic reasons; the transitional administrative law would have ON PRESSING ISSUES worked just fine. The constitutional regime that resulted is essentially a deal between the Shi’a and Kurds and lacks the THAT WILL FACE THE support of Iraqi Sunnis, who entered the process at a very late stage. They were promised constitutional amendments NEW PRESIDENT that are not likely to materialize any time soon, as the Kurds A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S % 4OQcZbg4]Qca /RdWQST]`O\SeOR[W\Wab`ObW]\/RdWQST]`O\SeOR[W\Wab`ObW]\ are reluctant to make necessary concessions. Constitutions cannot be written contrary to the interests of any major con- stituent groups in a region. The next administration should also reconsider our focus on elections as the cornerstone of democratization policy. Democracy is not just about elections. In Pakistan, for exam- ple, we focused our considerable influence solely on the electoral process, whereas it should have been used to help restore an independent judiciary and a free press before a vote was held. Press freedom and the judiciary will continue to be divisive issues there, even if the coalition government that is being formed between two highly disparate parties, From: Scott L. Silliman against all odds, manages to survive. I hope a new administration will recognize that liberaliza- Re: National Security tion is sometimes preferable to democratization from the standpoint of American interests. Last year, we pressured Advice: Change how we conduct the Palestinian Authority to hold early elections with the our military operations in the result that Hamas won in Gaza. Elections should have been war on terror preceded by cleaning up corruption and promoting liberal- ization and pluralization, and gaining a commitment from HE UNITED STATES has endured more than seven years all parties to participate in a democratic regime. As it stands, Bof continuous combat operations, and the toll upon our Hamas has never made such a commitment. armed forces has been great. More than 4,000 have died and Pursuing democratization in Syria also would almost cer- the services are now strained both in personnel and equipment. tainly produce a radical Sunni Islamist government, as that The financial cost of these ongoing engagements continues to country is now ruled by a very small Alawi minority. A more escalate, yet military progress in Afghanistan and Iraq has been sensible objective would be to use the same pressures to liberal- difficult to achieve. ize the Syrian regime and limit its autocracy and repression of The current administration has transformed the military its own population. into a force trained and equipped primarily for dealing with Finally, a new administration should try to encourage insurgencies. The risk in such a major transformation is that it international neighborhood effects, which can influence erodes our traditional capability — our superior air power and democratization within a region. These were extremely land-based firepower — which we have always relied upon to effective in Latin America in the 1980s and I think could gain victory when threatened or attacked by another country in be again in Southeast Asia. Dissemination of the fact that conventional armed conflict. This is a grave mistake; we must Thailand has just restored a democratic regime could well be prepared for both contingencies. have a big influence on Burma, for example. Likewise, if In trying to alleviate some of the strain upon the active duty ordinary Malaysians knew how, against all odds, a consoli- force caused by the ongoing conflict in Southwest Asia, there dated democratic regime has produced positive change in has been an increasing reliance upon private military contrac- Indonesia, they would be very impressed. [ tors to assume tasks traditionally done by uniformed person- nel, including such core military functions as the use of lethal 5IF+BNFT#%VLF1SPGFTTPSPG-BXBOE1PMJUJDBM4DJFODF force and interrogation of detainees. There is much confusion %POBME)PSPXJU[JTBOFYQFSUPODPOTUJUVUJPOCVJMEJOHBOE as to the legal status and accountability of these contractors, FUIOJDTUSJGF)FJTBNFNCFSPGUIF4FDSFUBSZPG4UBUF±T"EWJTPSZ and incidents involving their alleged violations of the laws of $PNNJUUFFPO%FNPDSBDZ1SPNPUJPO war have created intense criticism both here and abroad. What should the new administration do to preserve our mil- itary readiness while reducing the adverse effects of continu- ing operations upon our armed forces? American involvement must be reduced and a more multinational force employed in both Afghanistan and Iraq; at the same time, a greater commit- & 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & 4OQcZbg4]Qca From: Ernest Young Re: Working with Congress Advice: Choose separation of powers ment must be fostered on the part of the global community battles carefully to bring peace and security to the entire region. Convincing our allies to change American uniforms HE NEXT PRESIDENT will take office following a period for those of their own will not be easy. We must find ways Bof intense controversy concerning the allocation of powers to assuage the widespread criticism of the United States among the three branches of the national government. While these prompted by our perceived disregard of international law in separation of powers controversies — as prevalent in the Clinton the war on terror. To that end, our treatment of the detainees at administration as that of George W. Bush — have been manna Guantanamo Bay must be humane, and our movement of sus- from heaven for constitutional law scholars, the next president pected terrorists from one country to another for interrogation would be well-advised to try to reduce the level of tension. One must be consistent with treaties to which we are a party. We way to do that would be to change how we think about the notion must also ensure that the prosecutions by military commission of executive precedent. of those we charge with war crimes are transparent and fair in Many separation of powers questions seldom, if ever, wind the eyes of the international observer. Most important, we must up in court. On questions about power to use military force, the return to the United Nations as a full partner, seeking to act treatment of persons apprehended in wartime, or, more prosai- collectively with other members in the Security Council in deci- cally, the internal operations of the executive branch, the guiding sions on the use of military force, rather than individually as we “precedents” come from practice. On many issues concerning the have in the past several years. interaction of the executive and legislative branches, for example, We are not the only victims in the global war on terror. the leading source of law is simply what was done by the relevant Other countries have suffered terrorist attacks as well. We actors in similar past circumstances. The 1868 impeachment of therefore cannot afford to stand alone in trying to defeat Andrew Johnson and the Watergate controversy provided prec- those who would do us all harm. [ edential guidance for the Clinton impeachment, for example. The practice of the political branches — Congress and the president 4DPUU-4JMMJNBOJTBQSPGFTTPSPGUIFQSBDUJDFPGMBXBOEUIF — thus sets an important precedent for future disputes about FYFDVUJWFEJSFDUPSPG%VLF±T$FOUFSPO-BX &UIJDTBOE/BUJPOBM constitutional power. 4FDVSJUZ)FJTBNFNCFSPGUIF"NFSJDBO#BS"TTPDJBUJPO±T The problem is that the use of congressional and executive 4UBOEJOH$PNNJUUFFPO-BXBOE/BUJPOBM4FDVSJUZ precedent can create perverse incentives for one branch OPU to cooperate with the other, lest that branch be viewed as conced- ing that it lacks constitutional authority to act unilaterally. This is surely one reason — although probably not the only one — that President Bush did not seek authorization from Congress before establishing a system of military commissions to try sususpected terrorists or undertaking a widespread system off domestic antiterrorist surveillance. It seems likely that if the president had gone to Congress in the early days off the war on terror and sought authorization for these ininitiatives,n Congress would have acceded. But we also knknow that the president’s failure to secure such approval iniinitially proved costly in terms of both time and scarce ppolitical capital. We need a way for the president to be able to work wwith Congress (when that is politically possible) without cconceding limits on his unilateral powers that may come bback to haunt him in the future. Both Presidents Bush were able to do this on the vital question of war pow- ers; prior to each of the Iraq wars, the president sought authorization from Congress while stating clearly that, in hishis view,vie the president would also have had power to act uni- lallaterally.terallly.y By not forcing the issue, each President Bush avoided A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S ' 4OQcZbg4]Qca a constitutional crisis and gained the substantial political On the bright side, through years of research and policy exper- advantage of congressional support. imentation, we have learned a great deal about regulatory design. The next president should find ways to do this more often. We know how to make the regulatory system better, stronger, and When the president and Congress are in agreement on a less costly than it was before. course of action — and they often are — there is no need to Climate policy offers the biggest challenge — and the best resolve separation of powers questions. Needless disputes opportunity yet — to achieve systematic reforms that protect could be avoided through the use of presidential signing state- the environment more at less cost through better regulation. ments to “reserve the president’s rights” to insist on unilateral Effective climate policy must: authority in future cases. Although such statements have been (1) Comprehensively cover all greenhouse gases, their sources and controversial in other contexts, in this situation they would sinks, as well as multiple sectors (economy-wide), integrating simply postpone constitutional controversy until an issue really issues currently scattered across separate agencies. Doing so becomes worth fighting about. That will make life less interest- would increase environmental benefits while cutting costs by ing for law professors, alas, but might pave the way for more over half, compared to a narrow piecemeal approach. collegial and effective government. [ (2) Pay explicit attention to tradeoffs, both benefit-cost and risk-risk (including ancillary harms and ancillary benefits), 1SPGFTTPS&SOFTU:PVOHJTBTDIPMBSPGDPOTUJUVUJPOBMMBX UIFGFEFSBM in setting the goals and boundaries of climate policy. DPVSUT BOEGPSFJHOSFMBUJPOTMBX (3) Use flexible market-based incentives through an efficient cap-and-trade system (cutting costs by another half or more when compared to no trading). Allowances should be most- ly auctioned (raising revenues that can be used to reduce taxes) and partly allocated to enlist opponents, as was done in the U.S. acid rain trading program. (4(4)) Tackle the climate problem on a global scale, engaging all major emitting countries (including the U.S., China, India, and other major developing countries — using the allow- ance allocation as one carrot), with coordinated national and subnational implementation (rather than a patchwork of disjointed local efforts that induce emissions to “leak” From: Jonathan B. Wienerr unregulated to other places). WiWWith these strategies, the next president and Congress could launch Re: Global climate policy the most important U.S. environmental law since 1990, or perhaps ever. And the benefits may radiate further, inducing wider reform of Advice: Achieve progress on climate U.S. environmental governance on similar design principles. change through policy and power That task is daunting enough, but the next president’s chal- lenge will be larger still. A global climate regime requires a strat- HE NEXT U.S. PRESIDENT will take office at a prime egy for relations among the great powers. The year 2009 may Bmoment for climate change policy. Major climate legislation resemble 1815, when Prince von Metternich shrewdly designed will return in the new Congress and 2009 is also the year that the multipolar regime that kept peace in Europe for a century. To the Bali Action Plan, adopted in December 2007, calls for nego- engage the major emitters in a global climate accord — including tiation of a new treaty to follow the Kyoto Protocol. the U.S., China, India, Brazil, and Indonesia, as well as Europe, A serious, well-designed policy to combat climate change Japan, Canada, and Russia — we will need to apply the best regu- should address the climate problem effectively and efficiently. latory design and the best international diplomacy, in a way that It also should reform and revitalize the structure of environ- safeguards the planet while fostering prosperity and equity. We mental governance. will need no less than a modern Metternich. [ Much of past environmental law has suffered from frag- mentation of authority, neglect of tradeoffs, rigid dictates, and +POBUIBO#8JFOFSJTUIF8JMMJBN3BOE5IPNBT-1FSLJOT mismatched scale. Some progress has been made, such as the 1SPGFTTPSPG-BXBU%VLF-BX4DIPPM QSPGFTTPSPGFOWJSPONFOUBMQPM cap-and-trade system used to reduce acid rain, the information JDZBUUIF/JDIPMBT4DIPPMPGUIF&OWJSPONFOU BOEQSPGFTTPSPGQVCMJD disclosure policy for air toxics, and the executive orders requir- QPMJDZTUVEJFTBUUIF5FSSZ4BOGPSE*OTUJUVUFPG1VCMJD1PMJDZ'PSB ing policy evaluation under every president of both parties for NPSFEFUBJMFEEJTDVTTJPO TFF+POBUIBO#8JFOFS ®3BEJBUJWF'PSDJOH the last 40 years. But comprehensive reform remains elusive. $MJNBUF1PMJDZUP#SFBLUIF-PHKBNJO&OWJSPONFOUBM-BX,”NYU Meanwhile, important environmental issues have gone unad- Environmental Law JournalBOE3JDIBSE#4UFXBSUBOE+POBUIBO dressed — most notably, climate change. #8FJOFS Reconstructing Climate Policy ! 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & 4OQcZbg4]Qca /RdWQST]`O\SeOR[W\Wab`ObW]\ From: Barak Richman Re: Health care policy Advice: Reorganize the marketplace HE TRADITIONAL APPROACH to covering the uninsured has been to expand Binsurance programs. But it is equally important to organize the market for health ccare services so insurance and care become more affordable. Currently, the middle class aand small businesses are being priced out of health care. The rising number of unin- sussured and rising healthcare costs are two sides of the same coin. The most urgent need is to organize the marketplace so competition stimulates the ooffering of affordable insurance products. Doctors and hospital systems should com- ppete with each other — for patients and for insurance networks. However, rather than ccompeting with each other, providers have instead preferred to merge, causing monop- ooly prices to become a staple of most health care markets. Antitrust policy has been uunfortunately ineffective in this sector, and insurers have been forced to cover expanded aand monopoly-priced services. This makes insurance all the more inaccessible. Insurers also have done little to stimulate competition among providers. They trtraditionally have resisted developing innovative low-cost options, which might limit ccoverage for expensive or experimental care, and instead have succumbed to providers’ mmonopoly prices and comprehensive offerings, passing on cost increases to consumers. RRather, insurers should think creatively about offering plans that get patients the care thtthey need at prices they can afford. They should organize provider networks so provid- eers compete, bundle coverage so providers cannot leverage monopoly power to domi- nnate potentially competitive markets, and develop systems that encourage subscribers to get preventive care and independently manage their health needs. The regulatory structure is largely to blame for the lack of competition. It has ossified iniinsurance policies, discouraged innovation, and made it very difficult for new low-cost provider systems to emerge. For example, professional licensure requirements, Medicare price regulation, certificate-of-need rules, and weak antitrust policy have made it very hard for integrated health care systems to enter the marketplace. So innovative re-regulation and deregulation may be needed to force providers and insurance companies to think cre- atively, and federal regulation can pre-empt many of the state regulations that currently prevent insurers from innovating. But the main reason insurers don’t fight for cost containment through competi- tion is because the cost of health insurance is hidden from most Americans. Under current law, an employer’s contributions to an employee’s insurance coverage are not taxed, so employers and employees are mutually encouraged to have employers com- pensate workers with insurance rather than wages. Economists have long observed that this creates incentives for excessive insurance and introduces distortions in health services markets. But it also effectively hides the cost of health care from most Americans. Removing the tax exclusion would both expose that cost and enable individuals to realize how much income they lose to rising insurance premiums. In 2005, the President’s Advisory Panel on Federal Tax Reform strongly encouraged at least limiting the exclusion, noting that it is one of the most expensive and distortive deductions in the tax system. Few politicians listened — adopting the recommenda- tion would certainly be politically controversial — but it would be a bold and honest step for a new administration. [ 1SPGFTTPS#BSBL3JDINBO±TSFTFBSDIJOUFSFTUTJODMVEFUIFFDPOPNJDTPGDPOUSBDUJOH OFX JOTUJUVUJPOBMFDPOPNJDT BOUJUSVTU BOEIFBMUIDBSFQPMJDZ A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S ! 4OQcZbg4]Qca BVS/[S`WQO\Xc`g(\]bUcWZbgOaQVO`USR 0]]Y`SdWSePg2]\OZR6 0SaYW\R::;¸%% EADING NEIL VIDMAR and Valerie @Hans’ fascinating new book, "NFSJDBO +VSJFT5IF7FSEJDU, evoked the voice of Cassius saying, “The fault, dear Brutus, is not in our stars, But in ourselves…” (William Shakespeare, +VMJVT$BFTBS Act 1, Scene 2). But let’s return to that later. Vidmar and Hans’ new work picks up where their comprehensive 1986 book, +VEHJOHUIF+VSZ, left off. In their first four masterful chapters, they comprehensively review the history of the jury from trial by ordeal through those of Enron’s Skilling and Lay. For lay and lawyer audiences alike, I cannot imagine a better treatise on the jury’s history. Were historical reportage the book’s sole accomplishment, it would be well worth reading, but to Vidmar and Hans, history is but prologue. The bulk of this book is devoted to the litany of crimes with which the American jury has been charged by its critics: over-in- fluence by pretrial publicity; incorrect deter- mination of facts; inability or unwillingness to follow the law; inability to comprehend complex scientific evidence; inability to assess expert credibility and testimony; wrongful convictions and acquittals; jury nullification; prejudice in death-penalty cases; excessive compensatory and punitive damages; and anti-doctor bias in medi- cal malpractice cases. With each charge, Vidmar and Hans carefully assess the accu- sation, review the relevant history of the jury’s role in the area and then examine the study of 50 jury deliberations. The tran- into their assessment of the parties’ conten- scientific research — their own and that of scripts are fascinating. We see how jurors tions about the evidence. Particularly fasci- other researchers. use the jury instructions in their delibera- nating for me was the remarkable consis- As they go about trying the case against tions to stay true to the burden of proof and tency of these deliberations with those I and the jury on each count, the authors make how they apply evidentiary standards. We Duke’s trial practice students have seen for illustrative use of actual transcripts of see how they evaluate the credibility of wit- 30 years on watching the students’ mock- jurors deciding cases. For the first time, the nesses and how they use physical evidence trial jurors on closed circuit television. secrecy of the jury deliberation room was to make informed assessments of experts’ Though jury critics have leveled charges breached — with the approval of Arizona opinions. And we see how jurors bring at everything from jury competence to jury judges and juries, Vidmar led a systematic common sense and everyday experience fairness, Vidmar and Hans’ conclusions ! 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & 4OQcZbg4]Qca On the charge of anti-doctor bias: not guilty. Jury verdicts on liability compare favorably with medical experts’ assessments. Jury verdicts on damages are consistent with judges’ assessments of pretrial settlements for similar injuries and of verdicts in auto crashes with similar injuries. disprove such skepticism. A few of their do judges, despite being better educated specific conclusions are worth mentioning. than the average juror. Coming to deci- On the charge of inability to handle sion-making is a human problem, not a scientific and expert evidence: not guilty. jury problem. The use of lawyer-conduct- In studies of how judges would decide ed jury selection with peremptory strikes cases versus how jurors would decide and challenges for cause helps eliminate them, the correlation is strong. That cor- strongly held juror prejudices, but com- relation is not affected by the complex- plete elimination of juror bias is impos- ity of the trial or the number of expert sible in a system involving humans. witnesses. This refutes assertions that The antidote is not aggregating decision- jurors are not up to handling complexity making in the hands of sole judges (where and scientific evidence, and that judges, one person’s prejudices predominate) or instead, should hear medical malpractice even in a group of experts (where the preju- and similar cases. dices are perhaps shared, perhaps conflict- On the charge of “jackpot” or “lottery” ing), but aggregating diverse views in a justice: not guilty. Juries are more often jury box of six or 12 to minimize the effect jury is like a computer with its program- conservative in damage awards than gen- of any one person’s prejudices. Perhaps an ming set by the judge’s instructions. erous. Punitive damages are rare, and, aggregation of an equal number of judges Vidmar and Hans show that judges can if left to judges rather than to juries, the might serve the same result — but at what better program the jury with understand- ratio of punitive damages to compensa- cost financially or, even more importantly, able instructions to help the jury put tory damages would not vary significantly. to participatory democracy? As it is, we are the evidence in its proper legal context. On the charge of anti-doctor bias: not underpaying judges and under-financing Conversely, the computer adage, “garbage guilty. Vidmar and Hans find no evidence to courts while Americans not among the in, garbage out,” applies to the evidence a support the charge that juries are anti-doctor elites are increasingly more removed from jury hears. Experienced advocates know that or patient-friendly in medical malpractice the operation of any branch of government. if a jury gets it wrong, often the lawyers in cases. Jury verdicts on liability compare Based on the evidence, Vidmar and their zeal not to miss any fact failed to focus favorably with medical experts’ assessments. Hans’ unanimous verdict is “strongly in their evidence and arguments on the critical Jury verdicts on damages are consistent with favor of the American jury.” In reaching issues the jurors had to decide. judges’ assessments of pretrial settlements it, the authors recognize that juries occa- There is nothing inherently wrong with for similar injuries and of verdicts in auto sionally get it wrong. When that happens, the jury, as Vidmar and Hans make clear, crashes with similar injuries. rather than criticize the jurors, we ought but we can make it better. [ As "NFSJDBO+VSJFT5IF7FSEJDUreveals, to be looking for fault in ourselves — the — %POBME)#FTLJOE--.±JTB the six- or 12-person jury organism, judges and lawyers who control what a QBSUOFSXJUI5XJHHT #FTLJOE 4USJDLMBOE especially when demographically diverse, jury gets to see and hear. 3BCFOBVJO3BMFJHIBOEBTFOJPSMFDUVS proves to be a remarkably accurate way of Though jury decision-making is a JOHGFMMPXBOEEJSFDUPSPGUIF5SJBM1SBDUJDF resolving factual conflicts within a legal human endeavor, in some respects each 1SPHSBNBU%VLF-BX4DIPPM framework. Vidmar and Hans recognize some areas in which the jury is imper- fect. But, to recall Cassius’ observation, American Juries: The Verdict, by Neil Vidmar and Valerie P. Hans, was the subject of a session the fault, dear Americans, is not with the led by six top scholars at the joint annual meetings of the Law & Society Association (U.S.) and jury, but with us. the Canadian Law & Society Association, held in Montreal on May 29. On Oct. 24, 2008, it will The research Vidmar and Hans docu- be the focal point of a conference at Suffolk University Law School, on “Successful Strategies for ment shows that jurors bring to the jury Jury Trials,” co-sponsored by the Macaronis Institute for Trial and Appellate Advocacy and the their ways of viewing the world — some- Massachusetts Academy of Trial Attorneys. times called their “prejudices” — but so A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S !! 4OQcZbg4]Qca :WaO9S`\5`WTTW\ AQV]ZO`]TTSRS`OZQ`W[W\OZZOeX]W\a2cYS:OeTOQcZbg ISA KERN GRIFFIN HAS a graduate Criminal Procedure,” : degree in English, but she also published in the thinks of the five years she spent as a /FX:PSL6OJWFSTJUZ federal prosecutor in Chicago as a sort of -BX3FWJFX, cri- advanced degree in federal criminal law, tiques the federal her chosen area of scholarship. government’s recent “My scholarship and my teaching are use of deferred pros- informed by the institutional knowledge ecution agreements I gained in Chicago,” says Griffin, the (DPAs) in response newest addition to the Duke Law fac- to Enron-era frauds. ulty. Having joined the U.S. Attorney’s The government Office in 1999 following a clerkship on agrees to defer or the United States Supreme Court with dismiss charges former Associate Justice Sandra Day against corporations O’Connor, Griffin worked on a range of that meet strin- federal crimes, eventually specializing in gent cooperation cybercrime and public corruption. She requirements and has led 12 jury trials, including one of the identify employee first federal trials for Internet software targets. This com- piracy, prosecuted more than 100 defen- pelled partnership dants, and argued several cases before the between “public United States Court of Appeals for the governmental inves- Seventh Circuit. tigations and private “I originally chose to be a federal corporate compli- prosecutor precisely because I had an ance efforts” has academic interest in criminal law and developed, Griffin procedure and felt I could benefit from theorizes, without on-the-ground experience,” says Griffin, adequate consider- a graduate of Stanford Law School, ation of the proce- where she was president of the 4UBOGPSE dural protections -BX3FWJFX “But I stayed in the U.S. that should apply. notably “the nature of the process crimes Attorney’s office — and enjoyed every day “The use of DPAs has shifted a num- that arise organically from interactions there — not only because the work was ber of interactions and incentives into the between defendants and prosecutors or substantively engaging but also because investigative stage of prosecution. Many agents,” she says. “I analyze the creation I was surrounded by truly great lawyers of these issues would previously have and definition of actionable falsehoods in and colleagues.” arisen when determining liability — in federal investigations, including recent Since joining the UCLA law faculty in plea negotiations or at trial — or at the cases involving celebrity athletes, corpo- 2005, Griffin has examined the political sentencing phase,” Griffin explains. “The rate leaders, and politicians. Drawing on and social meanings and consequences of investigative stage lies further below the criminal law theory and social psychol- federal criminal enforcement through her radar. And because there is no judicial ogy, I consider the role of authority, effi- scholarship. “I have great admiration for oversight at that point, there is also little ciency, and apology in the false statement federal prosecutors and generally believe recourse for individual defendants.” charges, and suggest that expressive harm that they act in good faith,” she says. “But Further, she said, there has been insuf- might result from pretextual prosecutions there are institutional failings, and I’m ficient attention given to whether the use for defensive lies.” interested in exploring the balance of of DPAs in this way is accomplishing the In teaching evidence, Griffin also draws power within the system — in thinking broader goal of increasing proactive com- extensively from her experience, encourag- about how best to calibrate the relation- pliance with investigators. ing her students to think about the wider ship between legislators, prosecutors, Griffin’s current project, titled “The social context for the rules. She likes to use judges, juries, and defendants.” Social Meaning of Criminal Lying,” car- clips from movies and media depictions Griffin’s 2007 article, “Compelled ries forward certain strands from her of the justice system as hypotheticals and Cooperation and the New Corporate research into compelled cooperation, conversation sparks. “A bit of pop culture !" 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & 4OQcZbg4]Qca also helps leaven a very rigorous class,” notes Griffin, who counts the movie “My Cousin Vinny” as one of her favorite class- room “aides.” She also shows scenes from films like “To Kill a Mockingbird,” “A Few Good Men,” and “Legally Blonde” when discussing cross-examination techniques and impeachment. Griffin says her approach to law and legal scholarship has been significantly influenced by Justice O’Connor and Judge Dorothy Nelson of the Ninth U.S. Circuit Court of Appeals, for whom she clerked. “In my scholarship I reference my faith in judicial oversight. That perspective has certainly been informed by my clerkships with Justice O’Connor and Judge Nelson. Frankly, they are the ‘aspirational judges’ I have in mind when I write about judi- cial review. “Justice O’Connor combines intellec- tual integrity and devotion to the law with respect and understanding for individual litigants,” continues Griffin. “I learned a great deal from her jurisprudence, of course, but even more from her per- sonal strength, legendary work ethic, and incredible grace. She sets the example for a life in the law, and I often think of her encouragement to do your best and hold your own, whatever the task. “Like Justice O’Connor, Judge Nelson is fair-minded, pragmatic, and a gener- ous teacher and colleague. I have been extremely fortunate in my mentors, and I hope to be able to give some measure of that back to my students.” [ ;WQVOSZ3 BWUO` Lisa Kern Griffin @S\]e\SRZWbWUOb]`X]W\aTOQcZbg Recent scholarship VER 40 YEARS as a litigator, go by,” he jokes. In fact, he’s busy training =Michael E. Tigar has represented the next generation of trial lawyers at Duke such high-profile — and often contro- Law School. 1][^SZZSR1]]^S`ObW]\O\RbVS A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S !# 4OQcZbg4]Qca “First we need to make sure that stu- rights,” he says. “I met a lot of folks and dents care about the basic building-blocks read a lot of books that helped deepen my of substance and procedure rulings,” he understanding of how I might be a con- explains. “Then, we have to talk about structive contributor.” the tools a litigator uses, such as direct After graduating first in his law schoolhool evidence, cross examination, and rules of class at Boalt Hall, Tigar joined the firmm evidence.” A third level, he says, is teaching now known as Williams & Connolly, wwherehere students to “listen and to care, to under- he practiced for several years before startingarting stand the human stories — of defendants, his own firm. He later taught at UCLAA and victims, and witnesses.” lived in France while working on a bookok It’s important for students to understand on European legal history, -BXBOEUIF3JTFF3JTF how judges, juries, defendants, and attorneys PG$BQJUBMJTN He returned to the Uniteded make choices about how to deal with cases, States to represent Cesar Chavez’s son,, says Tigar. “I want to help them under- Fernando, who had refused induction into stand how the operation of the system that the Army, and to argue the case of (FMCBSECBSE calls itself ‘criminal justice’ has real effects W6OJUFE4UBUFT, one of seven he has arguedrgued on people. The best lawyering takes into before the Supreme Court. account whether it will improve the human Tigar has balanced scholarship, teach-ch- condition and further claims for justice.” ing, and advocacy throughout his career.er. Tigar says he also wants students to He has taught at American University’s’s appreciate the social importance of litiga- Washington School of Law, where he tion, what he terms the “fourth level” of remains professor emeritus of law, andd advocacy teaching. “In this country, to a from 1987–1998 held the Joseph Jamailail degree not found in any other, great social Centennial Chair in Law at the Universitysity issues take the form of litigated cases,” he of Texas Law School. He also has beenn a AVINGAVING WWRITTENRITTEN an autobiography,autobiography, FightingFighting says. “Great social struggles are reflected visiting professor at the Faculty of Law in 6Injustice, and several books about advoca- and embodied in such cases as "NJTUBE, Aix-en-Provence, France. He retains ties cy, Tigar’s latest book is Thinking About Terrorism: %SFE4DPUU, the great civil rights rulings, to Austin where the Texas Civil Rights The Threat to Civil Liberties in Times of National and the issues being argued before the Project’s new building is named for him — Emergency, published by the ABA in 2007. Supreme Court today. … To be a construc- the Michael E. Tigar Human Rights Center. In addition to offering historical perspective tive participant in this kind of litigation, you Having spent more than 40 years with that he feels has been lacking in the public must understand what Martin Luther King “one foot in the academic world and the discourse, Tigar examines both “group and called the ‘arc of history.’” other in the world of law practice,” Tigar individual terrorism” and what he calls “state- A native of Glendale, Calif., Tigar says he’s had about as much fun in his sponsored terrorism” or “the repressive ways earned a degree in political science at the career as a person could have. “And I’ve regimes deal with their own people.” “No country University of California, Berkeley, while been able to do it all because I have a law can say it opposes terrorism unless it is willing working as a journalist for a nonprofit radio degree.” [ %FCCJF4FMJOTLZ to oppose all forms of it wherever it appears,” he station. After working abroad, he had to says. “The system of military commissions should choose between journalism, history, or law be disbanded and people believed to commit as a profession. Courses 2008–09: crimes should be tried according to procedures “I thought, a journalist has lots of access established in the U.S. Constitution.” and can write things — be involved as an Ab]`gbSZZW\UW\/Rd]QOQg(AbcRS\ba In Thinking About Terrorism, Tigar also con- observer. A scholar can teach students and `SdWSeb`O\aQ`W^ba]TaWU\W¿QO\bb`WOZa tends that torture “violates the fundamental O\OZghW\UbVSORd]QObSa¸O^^`]OQVSab] norms of international law, accomplishes nothing publish, but with a law degree, you could do bVSW`QOaSa it all,” he says. worthwhile, diminishes the respect in which the /^^SZZObS>`OQbWQSAS[W\O`(AbcRS\ba He was influenced, too, by the era — the country practicing it is held, and makes that bOYSOQc``S\bQOaSe`WbSO\O^^SZZO\b¸a height of the civil rights direct-action move- ]``Sa^]\RS\b¸aP`WSTO\RO`UcSPST]`S country unable to create genuine alliances to ment. “I became a lawyer because I wanted TSRS`OZO^^SZZObSXcRUSa address the underlying issues.” [ to participate in the struggle for human !$ 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & 4OQcZbg4]Qca >@=43AA=@8/;3A1=:3;/<8@ >@=43AA=@6 83443@A=<>=E3:: >@=43AA=@/@B7@/7 Powell, Coleman, and Rai honored with distinguished professorships rofessors H. Jefferson Powell, James Coleman to the fields of law and theology are profound and service. Through his death penalty-related work, >Jr., and Arti Rai have been honored with distin- influential. He also is a marvelous teacher. While his leadership in the area of wrongful convictions, guished professorships. The honors were announced we honor him with this distinguished professorship, and his remarkable commitment to public service, at a Duke University ceremony on April 28. the truth is that he honors us through his work and Professor Coleman models the professionalism and Powell was awarded the university’s Frederic devotion to this university.” integrity we hope to instill in our students.” Cleaveland Chair in Law and Divinity, which Coleman received the Law School’s John S. Bradway Rai received the Elvin R. Latty Professorship, recognizes his contributions to both disciplines Chair, which recognizes a commitment to clinical edu- named in honor of a former dean of the Law School, through appointments at the law and divinity cation and public service. A pioneer in legal aid and and previously held by the recently retired Professor schools. His recent legal scholarship has focused clinical education, Bradway established the school’s Thomas Rowe. A leading scholar of patent law, law on the constitutional law governing foreign policy, first clinical program during the 1930s. and the biopharmaceutical industry, and health care the role of history and politics in constitutional An expert in criminal law, wrongful convictions, regulation, Rai’s current research, funded by the decision-making, and the moral choices involved in issues relating to the death penalty, and doping in National Institutes of Health, focuses on intellectual being a lawyer. At the Divinity School, his teaching sports, Coleman is co-director of the Law School’s property issues raised by collaborative research and and research interests involve Christian theologi- Appellate Litigation Clinic and Wrongful Convictions development in areas ranging from synthetic biology cal ethics and the theological interpretation of Clinic. He also teaches in the areas of legal ethics, to drug development. contemporary society. A prolific writer, Powell is negotiation, and mediation. Rai’s recent publications include “Who’s Afraid the author of A Community Built on Words: The Coleman joined the Duke Law faculty after a of the APA? What the Patent System Can Learn Constitution in History and Politics, and The lengthy career in private practice, during which he from Administrative Law,” 95 Georgetown Law President’s Authority Over Foreign Affairs: An Essay specialized in federal court and administrative litiga- Journal 269 (2007) (with Stuart Benjamin); “Open in Constitutional Interpretation, among many other tion, and represented criminal defendants in capital and Collaborative Research: A New Model for books and articles. His latest book is Constitutional collateral proceedings. He also has a range of govern- Biomedicine,” in Intellectual Property Rights in Conscience: The Moral Dimension of Judicial ment experience, including service as chief counsel Frontier Industries: Biotech and Software (AEI- Decision (University of Chicago Press, 2008). for the U.S. House of Representatives’ Committee on Brookings Press, 2005); and “Finding Cures for Powell has served in both the federal and state Standards of Official Conduct and deputy general Tropical Diseases: Is Open Source an Answer?” governments, as a deputy assistant attorney general counsel for the U.S. Department of Education during Public Library of Science: Medicine (2004) (with and principal deputy solicitor general in the U.S. the Carter administration. Coleman has chaired the Stephen M. Maurer and Andrej Sali). Department of Justice, and as special counsel to the American Bar Association Section on Individual Rights “Professor Rai is among the most creative attorney general of North Carolina. He has briefed and Responsibilities and Death Penalty Moratorium scholars in the country,” said Levi. “The real- and argued cases in both federal and state courts, Implementation Project. world impact of her work in law, innovation, and including the Supreme Court of the United States. In “I can think of no person more fit for the inau- biotechnology exemplifies the value and power of 2001-02, he was named Duke’s University Scholar/ gural John Bradway professorship than Professor interdisciplinary collaboration. Her presence here Teacher of the Year. Coleman,” said Levi. “He lives a life dedicated to the has helped to establish Duke Law as one of the “Professor Powell is a wonderfully gifted scholar,” ideals on which Bradway helped develop much of the most exciting schools anywhere to study and teach said Duke Law Dean David Levi. “His contributions Law School’s curriculum and commitment to public intellectual property.” [ A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S !% 4OQcZbg4]Qca 2cYS:OeeSZQ][SaRWabW\UcWaVSR dWaWbW\UaQV]ZO`aW\ & ' 8]V\2cUO`R(@S\]e\SRaQV]ZO`]T W\bS`\ObW]\OZZOeO\RVc[O\`WUVba ROFESSOR JOHN DUGARD /P`OVO[: EWQYSZU`S\<]`bVeSabS`\ >recently retired from the University C\WdS`aWbgAQV]]Z]T:Oe of Leiden where he held the Chair in Scholarly focus: law and economics, contract theory, bargaining theory, and media economics Public International Law, and is a pro- Courses at Duke: Contracts and Antitrust fessor of law in the Center for Human Rights at the University of Pretoria. 3VcR5cbbSZ6SP`SeC\WdS`aWbg He has served as a judge ad hoc on the Scholarly focus: torts, law enforcement, economic International Court of Justice, as special analysis of law, and behavioral law and economics rapportuer on diplomatic protection for Courses at Duke: Law and Economics, Behavioral the United Nations International Law Economics and the Law, and Advanced Torts Commission, and as special rapporteur for the U.N. Commission on Human 9W[PS`Zg2 9`OeWSQC\WdS`aWbg]T<]`bV Rights, regarding the situation in the dis- 1O`]ZW\O´1VO^SZ6WZZ puted Israeli-Palestinian territories. Scholarly focus: empirical analysis of contract disputes, the choice of organizational form by Dugard is a former professor of professional service firms, banned commercial law and dean at the University of exchanges, corporate compliance systems, insider Witwatersrand in Johannesburg, South trading, derivatives, hedging practices, and Africa, and the former director of its “rogue” trading Centre for Applied Legal Studies, a Courses at Duke (Spring 2009): Derivatives research center committed to the promo- B63:3723<8=C@@=43AA=@8=6< tion of human rights in that country. He 2C5/@2E7B6/D=:C;3=43AA/GA=< G]c\UXW\8c\UGcZQV]\:Oe4W`[ played a role in formulating the South B63B63;3=4B63>@=B31B7=<=4B63 AS]cZ9]`SO 7<27D72C/:7<7 !& 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & 4OQcZbg4]Qca 4/1C:BG<3EA0@734A >@=43AA=@8/;3A0=G:3A>=93/B5==5:3A3C@=H37B537AB &7<;/G8=7<7<5/@=AB3@=4A>3/93@A B6/B7<1:C2320@7B7A6>@7;3;7<7AB3@5=@2=<0@=E</CB6=@A/:;/<@CA6273?C33<@/<7/=48=@2/< /<25==5:34=C<23@A:/@@G>/53/<2A3@53G0@7< 0=G:327A1CAA326=EB637 0]gZSO^^]W\bSRQVOW`[O\]TbVSP]O`R1`SObWdS1][[]\a O\RP]O`R[S[PS`>cPZWQ:WP`O`g]TAQWS\QS HIS SPRING, JAMES BOYLE, the William Neal tions and freedoms for re-use of their work. Tens on reprinting or use, as long as the terms of the BReynolds Professor of Law, was named chair- of millions of works — from songs and movies Creative Commons attribution licenses are met: man of the board of Creative Commons and was to textbooks, photographs, and scholarly journals The authors and sources must be cited. appointed to the board of the Public Library of — have been licensed under Creative Commons “As scholars we are committed to the dissemina- Science (PLoS). licenses, which allow others to copy, share, and in tion of knowledge,” said Boyle. The enormously high Creative Commons is a nonprofit organization that some cases customize copyrighted works. In Boyle’s prices of scholarly journals – some subscriptions works to expand the body of creative work available words, “We are building on the ‘all rights reserved’ cost $10,000-20,000 a year — hardly seems com- to the public for legal sharing and use. Boyle was one concept of traditional copyright to enable a vol- patible with that goal, particularly in the biological of the organization’s founding board members and untary ‘some rights reserved’ approach; the result and medical sciences where access to knowledge co-founded subsidiary divisions, Science Commons is a global ‘creative commons’ of material you could eventually save lives. But it is important in and ccLearn, devoted to science and open educational can use and share because permission has been law too. I am delighted to say Duke was the first law resources. “Jamie has demonstrated his commitment granted in advance.” school to commit to open access. All of our journals to Creative Commons from its founding,” said Larry Co-founded by Harold Varmus, a Nobel laureate have been made freely available online since 1997.” Lessig, the founder of Creative Commons, in endors- and former National Institutes of Health director, Co-founder and faculty director of the Law School’s ing Boyle’s appointment as board chair. PLoS is a nonprofit organization of scientists and Center for the Study of the Public Domain, Boyle’s Now one of the largest international networks physicians committed to supporting open access to forthcoming book is The Public Domain: Enclosing the working on these issues, Creative Commons pio- scientific, particularly medical, research. The seven Commons of the Mind, which will be published by Yale neered the use of free copyright licenses to offer PLoS publications are high-quality, peer-reviewed University Press this fall. It will be freely available creators — authors, scientists, artists, and educa- scholarly journals that are available online in online under a Creative Commons license, Boyle says. tors — the choice of a flexible range of protec- full with no charges for access or restrictions “That seemed only fair.” [ A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S !' 4OQcZbg4]Qca 4/1C:BG<3EA0@734A 0O`bZSbbV]\]`SRPgOZ[O published in the Stanford Law Review, “Letting /0/V]\]`a4ZSWaV[O\ [ObS`EVSOb]\1]ZZSUS Billions Slip Through Your Fingers: Empirical Evidence HE AMERICAN BAR ATHARINE T. BARTLETT, and Legal Implications of the Failure of Financial BASSOCIATION has 9A. Kenneth Pye Professor Institutions to Participate in Securities Class Action honored Professor Joel L. of Law and former dean of Settlements,” was selected as one of the “Top 10 Fleishman with its 2008 Duke Law School, was award- Corporate and Securities Articles of 2006.” Outstanding Nonprofit ed an honorary Doctor of Laws A third paper co-authored by the pair is currently Lawyer Award. degree by Wheaton College on one of the Social Science Research Network’s most A professor of law and pub- May 17. A 1968 graduate of downloaded papers in its category. “An Empirical lic policy studies, Fleishman serves as director of the the liberal arts college in Norton, Mass., Bartlett also Analysis of Institutional Investors’ Impact as Lead Samuel and Ronnie Heyman Center for Ethics, Public delivered the keynote address at the commencement Plaintiffs in Securities Fraud Class Actions” is forth- Policy, and the Professions at Duke University’s Terry ceremony honoring Wheaton’s Class of 2008. coming in the Vanderbilt Law Review. Sanford Institute of Public Policy. He is also director “Through your example as a lawyer, legal scholar, “This is the sixth empirical study of securities of the Foundation Strategy and Impact Research educator, and citizen, you encourage us to reach for litigation settlements we have published,” said Program in Durham. our best selves,” said Wheaton College President Cox. “When we started down this path five years A prolific writer, Fleishman’s recent scholarship Ronald A. Crutcher in presenting Bartlett with her ago we thought we would carry out a couple of focuses on public trust in not-for-profit organizations. degree. “The sharp intellect with which you earned projects. Now, six published papers later, we have His latest book is The Foundation: A Great American high honors at Wheaton now focuses on the rights four in different stages of completion, a couple of Secret — How Private Wealth is Changing the World of women, children, and individuals who have been more on the drawing board, and are contemplating (Public Affairs Books, 2007). marginalized.” Crutcher noted that one of Bartlett’s a book project.” [ — B.C. “The fact that the ABA is now giving awards to those many articles, “Feminist Legal Methods,” is among of us who are making nonprofit law our major focus the most cited law review articles on any subject. suggests that our field is gaining both more acceptance He also praised Bartlett’s achievements as dean of 0`ORZSgSZSQbSRb]/A7: in the profession and that a larger number of lawyers Duke Law School, observing that the seven new law Q]c\QWZP]O`R]TSRWb]`a and law students are choosing to practice in the field,” clinics established during her tenure “enhanced its URTIS BRADLEY, Fleishman said of the award, one of four granted by the capacity for building civil society.” 1Richard and Marcy ABA’s Nonprofit Corporations Committee. Horvitz Professor of Law and “In view of the growth in the number of U.S. professor of public policy nonprofits — now about two million organizations studies, was recently elected — and in the size of annual nonprofits’ expendi- to serve on both the American tures — about $1.6 trillion annually — the need for Society of International Law skilled legal counseling is greater than ever. Awards (ASIL) executive council and the board of editors of such as [these] can help accelerate the fulfillment the American Journal of International Law. of that need,” he said. [ — B.C. “It is an honor to be elected to these two posi- tions,” said Bradley, who is also senior associate dean for academic affairs. “I am looking forward to 4OQcZbgPWRTO`SeSZZb] playing a more active role in both maintaining the `SbW`W\U@]eS fine traditions of the society and the Journal and in N APRIL 27 the faculty paid tribute to deliberating about their future directions.” =Thomas D. Rowe Jr., Elvin R. Latty Emeritus Bradley served as counselor on international Professor of Law, who officially retired in December 1]fVOa·B]^ ¸Q]`^]`ObS law in the Legal Adviser’s Office of the U.S. State 2007. A former Rhodes Scholar and clerk for O\RaSQc`WbWSaO`bWQZS]T % Department in 2004 and is currently a member Supreme Court Associate Justice Potter Stewart, N ARTICLE CO-AUTHORED by James D. Cox, of the Secretary of State’s Advisory Committee on Rowe enjoyed a 32-year career on the Duke faculty. /Brainerd Currie Professor of Law, has been International Law. The author of two casebooks, “It has been an honor to have Tom as a col- selected as one of the “Top 10 Corporate and Foreign Relations Law: Cases and Materials league, and I offer him to others as a role model Securities Articles of 2007” by Corporate Practice (Aspen Press 2d ed. 2006 with Jack Goldsmith) of a law professor who has devoted himself Commentator. Cox wrote “Does the Plaintiff and International Law (Aspen Press 4th ed. 2003 to making better law,” said Professor Paul Matter? An Empirical Analysis of Lead Plaintiffs in with Barry Carter and Phillip Trimble), Bradley Carrington, who thanked Rowe for his three- Securities Class Actions,” originally published in also has written numerous articles concerning year service as associate dean during his own the Columbia Law Review, with Randall S. Thomas, both international law and U.S. foreign relations tenure as dean. Carrington also praised Rowe’s the John S. Beasley II Professor of Law and law. At Duke, Bradley teaches international law, law reform activities and contributions to legal Business at Vanderbilt School of Law. foreign relations law, and federal courts. He was instruction through teaching and authorship of This is the second Commentator honor for Cox a visiting scholar at Harvard Law School during leading casebooks and texts in civil procedure, and Thomas, who collaborate frequently. An article the spring 2008 semester. [ — B.C. federal courts, and constitutional law. " 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & 4OQcZbg4]Qca 4/1C:BG<3EA0@734A A life member of the while keeping track of >@=43AA=@A230=@/6 Thomas Rowe Jr. American Law Institute, 23;=BB/<2B6=;/A@=E3/B the details. All judges, @=E3A@3B7@3;3/@BG Rowe has been active lawyers, and law Recent scholarship in a number of its students are deeply in initiatives, notably its Tom’s debt for partici- 1= When you make a gift of $10,000 or more, Duke can offer you (and/ or your loved ones) a fixed income for life. A charitable gift annuity will also generate a tax deduction and can reduce capital gains. Your ages, financial needs, and current interest rates determine the annuity rate Duke can offer. Some sample rates: YOUR AGE(S): ANNUITY: 1VO`WbOPZS 65 6.0% 5WTb/\\cWbWSa( 75 7.1% 85 9.5% Ac^^ZS[S\bW\U 70/68 5.8% @SbW`S[S\b7\Q][S Annuity rates are subject to change. Once your O\RAc^^]`bW\U gift is made, the annuity rate remains fixed. 2cYS:Oe “Deferred” gift annuities can be a great retirement planning tool for younger donors who wish to utilize a current tax deduction in higher earning years and defer payments in order to supplement future retirement income. For a personalized illustration or more information, please contact Kate Buchanan JD (T ’92) at (919) 613-7217 or [email protected]. A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S " >`]TWZSa 4`O\Y@SOR¸$! 2STS\RW\UbVS^`]TSaaW]\ FTER 40 YEARS as a law professor — The classic example he offers is #SPXO /29 of them as a dean at five different W#PBSEPG&EVDBUJPO once a focus of his law schools — Frank “Tom” Read is retiring legal scholarship. The NAACP team of this summer. Although he still enjoys teach- lawyers led by Thurgood Marshall emerged ing his core subjects of evidence, profes- as heroes, as did the judges who ensured sional responsibility, and torts, he says that the Supreme Court’s judgment was carried it’s time to make good on his long-standing out in the Deep South. “There were some complaint about the “graying” of the legal violent protests and lynchings, and it took academy. “Bright young people need to get a long time,” says Read. “But no society, as in with new ideas to refresh the ranks of our I know it, has had a change that has been law schools,” says Read, who is on the fac- as deeply resented by ulty of the South Texas College of Law, where some and so aggressively he previously served as president and dean. pushed by others that, Read may be heading into retirement nevertheless, has been willingly, but he’s not going quietly. His handled as peacefully new book, 5IF-BXZFS.ZUI co-authored and as successfully.” with Rennard Strickland, professor and In their book, Read dean emeritus at the University of Oregon and Strickland take on taught me everything I know about School of Law, is an exhaustive yet acces- “myths” about law- administration, good and bad. He sible explanation of the key role lawyers, yers and law — that had two rules: ‘Take nothing person- juries, and judges play in mod- juries are ally,’ because the dean gets blamed ern American life. /:C;<7>@=47:3 out of control, for everything, and ‘never retaliate.’ The book started out as a there are too You might have to impose order and “rant,” Read says, set off by the lawyer jokes many lawyers, and there are no more legal discipline in some cases, but never he and Strickland heard flying around at heroes. Their starting point is the story do it disproportionately to the ‘particular a national meeting of law school deans. of two lawyers in Kokomo, Ind., who in sin’ you’re dealing with. That advice stayed They decided the self-deprecating humor the early 1980s took on the case of Ryan with me through all my deanships.” (In was just one manifestation of a widespread White, who had been expelled from school 2003 Read was honored with the Law and undeserved disregard for the legal because he had AIDS. “It’s a stunning Alumni Association’s A. Kenneth Pye profession. “If we can’t defend the profes- story,” says Read. “Two small-town law- Award recognizing his contributions to the sion, who else will make the case to the yers changed the views of a whole country field of legal education.) general public that lawyers are essential towards kids with AIDS. When people say Having served as dean at law schools to this democracy?” asks Read, who has there are no more heroes, we want them to both big and small — at the universities also served as president of the Law School know they’re there.” of Florida, California-Hastings, Tulsa, and Admissions Council, chairman of the board A life member of the Law School’s Indiana-Indianapolis, in addition to South of Law Access, Inc., and in leadership posts Board of Visitors, Read also launched his Texas, where he holds the title president in the American Bar Association. academic career at Duke. While practicing and dean emeritus — Read estimates that Their “case” is targeted at a number of on Wall Street in the late 1960s, he was he’s helped train as many as 20,000 law- specific audiences, among them prospective recruited by former Dean F. Hodge O’Neal yers in his career. “Students taught me to law students and lawyers “who need a pat to join the faculty and serve as assistant keep a sense of humor and, occasionally, on the back and a reminder of what their dean. Read returned to Duke in July 1968 a bit of pride and humility,” he says. His larger role is,” explains Read. Lawyers help — after O’Neal had stepped down as dean interaction with students also has convinced keep social change peaceful, facilitate com- and prior to the arrival of A. Kenneth Pye, him that tomorrow’s legal professionals will promise, and keep the public informed, he his successor. Read says both men became continue to be a source of “heroes.” says. “Since World War II [American] soci- friends and mentors, offering key advice as “More than most graduate-level stu- ety, more than any in recorded history, has he started his first deanship at age 34. dents, they are morally centered, deeply suffered monumental change. And on both O’Neal’s advice, “delivered with great committed, idealistic, hard-working, and sides [of any proposal for change] lawyers good humor in a deep Southern drawl,” do a really good job of living their lives in provide the grease that keeps things from concerned the need for a dean to bring a higher sense.” [ erupting into the violence or insurrection people together and create a common The Lawyer Myth JTQVCMJTIFECZ0IJP that epitomizes other societies.” sense of enterprise, Read says. “Ken Pye 6OJWFSTJUZ1SFTTBOE4XBMMPX1SFTT " 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & >`]TWZSa 2 B]RR1V`Wab]TTS`a]\¸% AOQ`SRQOZZW\U work wherever it can be done, to do what still drawing on the benefits of his tutelage. He would do in blessing other people’s lives Just to be able to observe him up close and and trying to make things better whenever many others we saw in that period, such as we can have an influence, and to be wit- Archibald Cox, Leon Jaworski, and Charles nesses to Him.” It isn’t a job one applies for, Alan Wright, was a great privilege. he adds, but a “calling” extended directly by “I wondered sometimes, as Watergate Monson. It was a call that he says he did got started, whether I had chosen the right not expect, but was prepared to answer. profession, because some lawyers really dis- It was a similar call to join the First graced it,” he adds. “On the other hand, I Quorum of the Seventy in 1993 that saw some who did great credit to it. I came brought an end to Christofferson’s success- away being proud of the profession I had ful legal career, one that included litigation picked, and I’ve been that way ever since.” and mergers and acquisitions practice Although he is now years removed from in Washington, D.C., in-house work for practice, he observes that he routinely uses Hospital Corporation of America, service the analytical, oral, writing, and conflict res- as general counsel for Commerce Union olution skills he first learned in law school. Bank in Nashville, and as associate general “I often look back on it and say, ‘That Duke counsel of NationsBank Corp. (now Bank of Law education was tremendously benefi- America), in Charlotte. However demand- cial.’ A law school education helps you learn ing his professional work and his family of to deal with conflict and respect people of four sons and a daughter, he took on leader- very different backgrounds, opinions, and HEN D. TODD CHRISTOFFERSON ship roles in his church at the congrega- circumstances, and work to make some- Edescribes his work, one imagines tional and regional levels. thing good happen out of challenges,” says him as a combination of a diplomat and A Utah native, Christofferson moved to Christofferson whose son, Peter, is a 2003 international executive. As a member of the New Brunswick, N. J., as a teenager. Away Duke Law graduate. “All of that has been First Quorum of the Seventy and later part from “a majority Mormon environment” extremely helpful in these past years.” of the Presidency of the Seventy, two of the (and, in fact, the only Mormon in his high In 2003, for example, he helped resolve governing bodies of the Church of Jesus school class), he admits to having had his concerns of national Jewish leaders that Christ of Latter-day Saints, Christofferson beliefs challenged at times. “I Holocaust victims were being has traveled to about 44 countries since realized this is not the only way /:C;<7>@=47:3 posthumously baptized into 1993, visiting church members and mis- people live and believe, contrary the Mormon church, contrary sionaries, meeting with government lead- to my experience up until that point. I had to a 1995 agreement; while baptism of the ers, coordinating humanitarian efforts, to think more deeply about [my faith] and dead is a sacred duty for Mormons, the and, in some cases, facilitating recognition pray about it with real seriousness,” he says, church had agreed not to baptize Holocaust of the church as a legal entity within a noting that in the end, his faith emerged victims unless they were proven to be direct foreign jurisdiction. stronger than ever. ancestors of current church members. In early April, Christofferson became During his years of service in the That experience, says Christofferson, led a church apostle, the newest member of Presidency of the Seventy, Christofferson to stronger interfaith ties, and a number of the Quorum of the Twelve Apostles (the worked closely with members of the close personal friendships. Twelve), serving directly under the three- Twelve, several of whom became and con- “My experience is that the more people member First Presidency, led by Church tinue to be mentors. Another mentor of understand each other, the better they get President Thomas S. Monson. Somewhat years past was Judge John J. Sirica of the along,” he says, noting that the scrutiny akin to a board of directors, the Twelve District of Columbia District Court, for given to Mormonism during Mitt Romney’s oversee international missions and congre- whom Christofferson clerked for two years bid for the Republican presidential nomina- gations and direct church policy and busi- after graduating from law school — the tion has helped build understanding of the ness, but their greater purpose is spiritual, period during which Sirica presided over faith. “In the course of that discussion and Christofferson says. Watergate-related matters. “His style was occasional verbal conflict, people became “The apostles are patterned after the so personal and open that he included me better acquainted with each other and more model in the New Testament. Our main in everything. He really drew me in and familiar with what we believe, who we are, responsibility is, and always will be, to made sure I got the full benefit of that and what we’re like, as opposed to what represent the Lord, to try to establish His experience,” recalls Christofferson. “I’m they may have heard.” [ A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S "! >`]TWZSa /ZO\0S\RS`¸%' /UO[PZS]\QSZZ^V]\S bSQV\]Z]Ug^Oga]TT N 1989, ALAN BENDER left a senior grew in value. “Management’s incentives 7position at Kaye Scholer in New York were totally aligned with its sharehold- to join General Cellular Corp. (GCC), a ers’ interests,” said Bender, who observed wireless start-up based in San Francisco. It that “you never become a better negotiator was an extremely risky move, he told Duke than when your back is firmly up against Law students in February as the keynote the wall.” The original management team speaker at ESQ, the Business Law Society’s remained intact, with Bender serving as annual career symposium. He had a young general counsel and head of regulatory family, and cell-phone technology was then affairs, risk management, facilities manage- viewed “as a rich plaything” that would ment, administration, and human resourc- likely be a passing fad. es, which he described as “the toughest job /:/<03<23@¸%'/<267AE7436/D33AB/0:7A632 “But my passion was to be able to guide in the world.” B63/:/<@ /<28=G13A 03<23@A16=:/@A67>/B 2C93:/EA16==: 7BE/A47@AB/E/@2327< % the business through stages of rapid growth Western Wireless Corp. was founded and profitability and to do it in a way that in 1994 when the newly prospering GCC had my fingerprints firmly planted upon it,” merged with a Seattle-based company there’s no way the FCC would have permit- he said. “I wanted the opportunity to impact to take a leading share of cellular mar- ted a foreign government-controlled entity each and every significant development of kets in the rural, western United States. to control U.S. spectrum.” the company that we came to think of as Bender’s group took Western Wireless Due to their “great trust and faith in each our corporate baby. I also wanted exposure public in 1996 in the largest public offer- other,” Bender and his original handful of to the wide and varied legal issues that were ing in the state of Washington at that point. partners formed the Trilogy Partnership, going to arise.” VoiceStream, founded as a subsidiary of through which they operate wireless mar- Bender got exactly what Western Wireless in the mid- kets in third-world countries such as Bolivia /:C;<7>@=47:3 he wanted. Initially focused 1990s, later became an indepen- and Haiti and invest in early-stage start-ups on establishing a market in rural cellular dent public company and a member of the through a private equity fund. “It’s our communications, he and his partners — a NASDAQ 100 in 1999. opportunity to be on the other side of the small group with complementary areas of An infusion of capital from Hong stage, offering capital and guidance, sitting expertise in business, finance, engineering, Kong-based Hutchison Whampoa allowed on the boards, opening some doors and investment banking and law — eventu- VoiceStream to go on an “acquisition binge” helping young entrepreneurs who have bril- ally built the telecommunications giants in 2000, Bender said. Using its publicly liant ideas and wonderful energy,” he said. Western Wireless Corp. (now Alltel) and traded stock, VoiceStream bought up all the Bender credited his success to many VoiceStream (now T-Mobile). other companies in the U.S. that used its factors, among them a continual appetite The early days of the venture were global systems mobile (GSM) technology. for learning and “outworking” everyone marked by setbacks as well as success. After That “national GSM footprint” attracted else, an honest evaluation of his own the Federal Communications Commission enormous attention from global telecommu- career goals, a firm belief in the business (FCC) gave spectrum away through a nications companies seeking a U.S. foothold. plan that he and his colleagues had put lottery, Bender and his partners offered In 2000, the VoiceStream board accepted together, and their commitment to the company stock to some of the winners. In a $52 billion buyout bid from Deutsche highest standards of integrity in their busi- return, they gained ownership of a series Telekom, making it the second-largest cross- ness dealings. The support of his family of strategically chosen cellular markets. border merger in U.S. history at that time. — wife, Joyce, daughter Mallory, and son, Still, faced with an equity and credit market “I spent the next year explaining to Adam — was invaluable, he said. shaken by the Persian Gulf War and an eco- Congress and the FCC why this deal was in “Joyce encouraged me to take some nomic downturn, GCC went into Chapter 11 the public interest and deserved approval,” calculated risks and understood the uncer- bankruptcy in 1991, he said. said Bender, explaining that FCC regula- tainties. She also understood the time With a solid business plan, the company tions limit the control of U.S. telecommuni- demands necessary in driving for success. was able to restructure and attract venture cations spectrum by foreign governments. You have to have that very clear under- capital, emerging a year later as a stronger It closed on May 31, 2001. “We pushed to standing within your household about how company, with an equity compensation get that deal closed because you never know is this going to play out and what the costs arrangement for management that gar- what’s around the next corner,” he said. are. I was fortunate in that I think it played nered value only if the shareholders’ stock “Had Sept. 11 occurred before we closed, out pretty well.” [ "" 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & >`]TWZSa 4`O\QSa>`Obb¸'! ;OYW\UbVSQOaS]\O^^SOZ S AN ASSISTANT FEDERAL public lawyers would do. Being part of that kind of /defender, Fran Pratt counts the an office seemed very appealing.” Supreme Court’s December 2007 ruling in After a post-clerkship position at the ,JNCSPVHIW6OJUFE4UBUFTas a sound and North Carolina Resource Center that satisfying victory. focused on death penalty cases, Pratt In a 7-2 decision, the Court held that worked for several years in the national the sentencing formula set out in the U.S. training office of the Federal Defender Sentencing Guidelines for cocaine offenses Program, fielding “hotline” calls from was advisory only. Under the guidelines, defense attorneys around the country any given amount of crack cocaine can regarding the sentencing guidelines. By trigger the same sentence as an offense 2002, when she took her current position involving 100 times that amount of pow- with the program’s newly opened office in der cocaine, yielding sentences three to six the Eastern District of Virginia, she had a times longer for crack than for powder. The considerable degree of expertise with the justices held that district courts may dis- guidelines. “I certainly had a lot of exposure agree with the “100-1 ratio” when sentenc- to many of the issues we deal with,” she ing defendants under the guidelines. said. “Coming over as the principal appel- “The opinion was a very strong one,” late lawyer was a very good fit for me.” And says Pratt, who was counsel of record and as ,JNCSPVHI, among other cases, makes principal author of the appellate briefs in the 4@/<>@/BB¸A23A7@3B=>:/G2C9316/>3:¸A clear, it was an effective fit. 4:3 A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S "# >`]TWZSa @]R\Sg0cZZO`R¸ /^S`a^SQbWdS]\ZSORS`aVW^ ODNEY BULLARD HAS three realized my service in the military @guiding principles: Lead with your involved more than the practice of strengths; follow your passions; and life is law,” he says. “It made me think all about perspective. about who I really am, what I want Bullard says his strength — oratory in life, and what my purpose is. — stems from his Atlanta upbringing And I concluded that my purpose, in the shadow of civil rights leaders and really, is to be a leader — and that around Baptist ministers, like his father. law and leadership went hand in “People say that my litigation style still has hand. All my fears and thoughts a Baptist minister in it,” he jokes. “I just about whether or not I made the didn’t think I wanted to be one.” Instead, wrong decision going into the JAG he got a taste for legal oratory when he Corps really subsided.” joined a mock trial team in eighth grade, In fact, the Biloxi base was the enjoying it so much that he started a team perfect place to “try cases on my at his high school. feet,” he says, noting that in a three- Recruited by a number of colleges as an year period he handled almost 50 academic all-state football player, he settled jury trials as prosecutor or defense on the Air Force Academy because it also counsel. His courtroom skills land- supported mock trial. Football took up all of ed him a job as an Air Force circuit his attention, though, until an injury side- trial prosecutor, trying complex lined him during his junior season. Unable cases around the world. to get a place on an already established Confident in his abilities as a mock trial team, he started his own. litigator, Bullard set out to follow “There weren’t a lot of people interested his passion: leadership. Encouraged in litigating cases, so I just looked for by a mentor, he pursued and won What about “perspective?” Long involved people with personality and who a fellowship in the prestigious in mentoring and always looking for oppor- /:C;<7>@=47:3 were characters by nature,” he White House Fellowship tunities, Bullard says his true passion is recalls, describing a “rag-tag” team of nov- Program, beginning in August 2005. The helping young people gain perspective. He ice underclassmen that went on to place program, which aims to give promising got his start while working in admissions at second in a national competition, with young leaders a chance to experience and the Air Force Academy prior to law school, Bullard named an all-American attorney engage in federal service at its highest when he would travel the country talking and first in his region. “We were competing level, took Bullard back to a place he had to minority students, many of whom were against everyone in the country — Harvard come to love — Biloxi — in the immedi- “trapped in poverty,” he recalls. “I wanted and Duke included. It was a wonderful ate aftermath of Hurricane Katrina, where them to know there was a black male out experience for us.” he helped volunteers find housing in Gulf there who was a role model, and that there It also was an experience that made Coast communities. were places like the Air Force Academy: Bullard a natural to choose a career as a “My knowledge of the area was put to ‘This is what education could do for you.’” litigator — an Air Force judge advocate good use,” he says. “That was a wonderful Bullard says he owes a lot to his “won- — after law school. He admits having had opportunity.” Bullard also served under the derful parents who showed me the world” second thoughts on arriving at a training chief of staff of NASA during his fellowship through travel. “But I grew up in a neigh- base in Biloxi, Miss. “Even being from the year, honing skills in public administration, borhood where a lot of people really didn’t South, Biloxi was 50 years behind anything management, and public affairs. have the same perspective I did,” he says. I had ever experienced. I thought, ‘Oh, Now a congressional liaison, Bullard “I was told about the White House Fellows Lord, I should have gone to a firm,’” he says serves as a lobbyist for the Air Force and Program and about Duke and the Air Force with a laugh. is based at the Pentagon, where he spent Academy. Perspective helps you see that Bullard prosecuted his first trial on his 1L and 2L summers. In this role, he anything is possible. Sept. 11, 2001. When a witness failed to seeks to advance legislative proposals to “It’s incumbent upon those who have respond to a call to the stand, he found aid wounded soldiers and support for the had some measure of success to go back her fixed on the courthouse television, “joint-strike” initiative that will standardize and say, ‘these are opportunities — this is a watching an airplane fly into the World fighter jets among the various branches of road you can take.’ That’s part of leadership Trade Center. “After that case concluded, I the U.S. armed forces and their allies. as well: educating your people.” [ "$ 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & >`]TWZSa 9S\R`O;]\bU][S`g0ZW\\¸ ! @S^`SaS\bW\UXcabWQS AVING STUDIED criminal The commission is committed to 6psychology at Purdue University doing “whatever needs to be done” on before coming to Duke, Kendra a given case, she says. Subpoena power Montgomery-Blinn always knew her inter- gives the commission the ability to est lay in criminal law. She signed on as make good on that promise. “Our stat- an Innocence Project volunteer in her first ute gives us standing to go to court and week of law school, taking on the investiga- ask for an order seeking documenta- tion of a case that she carried throughout tion or compelling witnesses to testify. her three years at Duke. “As a lawyer, I ‘cut The student-run Innocence Projects do my teeth’ on innocence issues,” she says, fabulous work but sometimes hit brick recalling numerous conversations she walls in their cases. They’ll know there had with Professors James Coleman and is information out there, but [they] Theresa Newman, the faculty directors of don’t have any standing to be granted the Innocence Project. access to it.” They also can’t take on “We took a lot of car trips to see cases that have been resolved by plea inmates in prison and to interview wit- bargains, she adds. “There are a num- nesses, and all the while we’d talk about ber of reasons an innocent person the justice system and how it needed to be may plead guilty, and if new evidence improved,” says Montgomery-Blinn, who surfaces we can look at it. So we really eventually became the Innocence Project’s have a broad ability to investigate and student director. That early immersion hammer through those brick walls.” shaped her approach to pros- Duke’s Innocence /:C;<7>@=47:3 ecution during four years as Project and those at other an assistant district attorney in Durham state law schools still have a key role County, she says. Last spring, it helped to play in the commission’s work. her land her current job as executive direc- Except for cases referred to the commis- It’s also great training, she maintains. tor of the newly launched North Carolina sion by victims, law-enforcement officials, “These students are our future prosecu- Innocence Inquiry Commission, the prosecutors, and judges, all of which stay tors, defense attorneys, and judges. They nation’s first state agency devoted to the with Montgomery-Blinn for review and need to become aware of these issues. I cause of innocence. investigation, the nonprofit North Carolina was a far better assistant district attorney Montgomery-Blinn and her staff investi- Center for Actual Innocence undertakes for having been aware of them.” Serving gate plausible claims of actual innocence by initial screening of cases and, if warranted, justice and looking at innocence and serv- individuals convicted of felonies in North assigns them to law students for review. ing justice and working in prosecution are Carolina state courts. She then presents “Students summarize what was known two sides of the same coin, she observes. worthy claims to the eight commission- at trial, review the court records and “You are just trying to get the truth.” ers — judges, prosecution and defense assemble other documentation, outline the Work with the commission is a bit like a attorneys, and representatives from the law innocence issues, and make suggestions homecoming — and the best possible kind, enforcement, legal, and broader communi- for following them up,” says Montgomery- Montgomery-Blinn says. “Being part of a ties — who decide whether the case should Blinn. Having received more than 240 neutral fact-finding agency, I don’t represent receive formal judicial review. claims of innocence in the commission’s the defense or the prosecution. I represent “We do not advocate,” she says. “We first six months of operation, she adds that justice. We’re like the guardian ad litem for try to find out what the truth is about a the students’ assistance is essential. criminal law. It doesn’t get any better!” [ crime and a conviction, in order to achieve justice.” Montgomery-Blinn and her staff The North Carolina Innocence Inquiry Commission, which is being followed closely by other states consid- — an investigator and office manager — ering similar agencies, arose as a result of a three-year inquiry into the prevalence of wrongful convic- will acknowledge fresh evidence of guilt as tions initiated by former Chief Justice I. Beverly Lake. Duke Law Professors and Associate Deans James well, she says. “The cases that come to us Coleman and Theresa Newman were members of the chief justice’s commission, as was Chris Mumma, involve an element of doubt, and we aim to legal counsel to the North Carolina Center on Actual Innocence, which oversees Innocence Projects at put that doubt to rest. If we can resolve it state law schools. “These are all people who are at the front of the innocence movement,” according to by establishing the innocence or guilt of the Montgomery-Blinn, who calls them all friends and mentors from her years at Duke Law. [ convicted person, justice has been done.” A^`W\U Ac[[S` &2cYS:Oe;OUOhW\S "% >`]TWZSa world.” McRae says Two years later, students participating she intentionally took in the Duke Law Immigration Education classes about the his- Project visit English as a second language tory and culture of (ESL) classes at area schools and commu- other countries and nity colleges to give hour-long presentations developed a penchant about immigration law and civil rights for travel that led issues. “We try to cover a broad range of her to study abroad issues in an hour,” McRae says. “First, we in China, Vietnam, give the basics of immigration. Where do Thailand, Turkey, you go to apply for visas? What do the immi- the Netherlands, gration and customs enforcement people and Belgium. look like? What are the different kinds of After graduating immigrants and what are the differences? with a degree in inter- How do people get green cards and how do national relations, you become a citizen once you get [one]?” McRae became an The presenters also discuss the risks AmeriCorps VISTA of deportation and the rights immigrants member, dividing have, including the right to emergency her time between medical care, the right to go to public two organizations: schools and be safe while they are there, Minnesota Advocates and what immigrants can and should do if for Human Rights they become a victim of crime, she says. (MAHR) and the In addition to leading the Immigration Immigrant Law Education Project, McRae has served as Center of Minnesota. a co-chair of the Duke Law ACLU; was /[O\RO;Q@OS¸ ' The former confirmed recently elected co-chair of Duke’s Public her desire to attend Interest Law Foundation; co-coordinates 6c[O\`WUVbaOQbWdWab law school, while the the Human Rights Working Group, a IVE MINUTES with Amanda McRae latter gave her the tools to jump into pro university-wide graduate student group; and 4will inspire you. McRae is a rising 3L bono work at Duke Law when she arrived. co-founded Duke’s International Human on a mission — or rather, many missions At MAHR, McRae saw lawyers involved Rights Law Society, an organization dedi- — to promote public interest work among in various international human rights issues, cated to presenting issues pertinent to the her peers, increase awareness about and from drafting domestic violence laws in public side of international law to Duke enthusiasm for international human rights Tajikistan and Hungary to setting up the Law students and faculty. She spent her 1L law, expand the pro bono offerings at Duke Truth and Reconciliation Commission in summer with the AIDS Legal Project and Law, and ultimately pursue a career in inter- Liberia. “International human rights brought is traveling to Nepal this summer to work national human rights. this interest in travel and going to places to with The Advocacy Forum, a nonprofit “I didn’t come to law school to be a learn about them to a level where I could human rights organization. lawyer,” she says. “I came to be a human get my heart and my passion to help people “I don’t think I could be someone who rights activist.” involved, too,” she says. just went to class and went home,” McRae ABC23@=47:3 McRae began her under- At the Immigrant Law says. “When I am at a place where there graduate experience at Carleton College Center of Minnesota, McRae helped are so many opportunities to take advan- in Northfield, Minn., intending to major develop the curriculum for an immigration tage of, I feel like I should do it.” She in physics, but a desire to learn about the education project. She brought the materi- notes that she sees an increasing number world beyond her native Kansas and the als with her to law school after learning of students coming to law school with events of Sept. 11 changed her plans. “My that North Carolina has the fastest-growing public interest work in mind and that Law second day of freshman year was Sept. immigrant population in the country. On School administrators have proven sup- 11, 2001,” she says. “I was already in this the second day of her 1L year, she knocked portive and enthusiastic about the field. crazy new situation, trying to figure out on the door of the Public Interest and Pro “I think this is a really exciting time to be what I wanted to do. When that happened, Bono Office to ask if the School did any here,” she says. “There is so much going on I think it opened my eyes to politics, immigration education work and, if not, in the world right now; so many people out in particular, but also to the rest of the could she start something? there could use a good lawyer.” [58# "& 2cYS:Oe;OUOhW\SA^`W\U Ac[[S` & We miss you! Please write: /Zc[\W<]bSa eee ZOe RcYS SRc OZc[\W 6OZT1S\bc`g1ZcP 3 2 3R5OaYW\a8` OT]c\RW\U^O`b\S` 2OdWR6 6S\RS`a]\¸!%]T1VO`Z]bbS eWbV3dS`Sbb5OaYW\a6O\Q]QYAbSdS\aW\ < 1 Q]\bW\cSab]e`WbSO\RR]a][S @OZSWUVWaaVO`W\UbVS]T¿QS]T^`SaWRS\b e]]Re]`YW\U SZSQbT]`bVSEOYS1]c\bg0O`/aa]QWObW]\ O\RbVSBS\bV8cRWQWOZ2Wab`WQb0O`T]` & 1ZOaa]T¸$ 6S`PS`b= 2OdWaO^O`b\S`ObA[WbV;]]`S 1ZOaa]T¸$% W\5`SS\aP]`]< 1 eOa\O[SRb]bVS & 8]V\: 1`WZZX]W\SR>O`YS` SRWbW]\]TBVS0Sab:OegS`aW\/[S`WQOW\ >]S/RO[a0S`\abSW\W\ PO\YW\UO\RQ]`^]`ObSZOe @OZSWUVOaa^SQWOZQ]c\aSZW\ bVSU]dS`\[S\bO\R^cPZWQ ^]ZWQg^`OQbWQSU`]c^O\ROa 1ZOaa]T¸$! 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