NEW YORK STATE BAR ASSOCIATION JournalNOVEMBER/DECEMBER 2000 | VOL. 72 | NO. 9 ELECTRONICELECTRONIC SIGNATURES:SIGNATURES: THEIRTHEIR RISKSRISKS ANDAND BENEFITSBENEFITS

I had my father’s signet in my purse, Which was the model of that Danish seal, Folded the writ up in the form of th’ other, Subscribed it, gave‘t th’ impression, placed it safely, The changeling never known.

HAMLET, Act V, Scene II

Inside Verifying Written Signatures Case Law on the Web Keys to Clear Writing Three Year Index to Articles BOARD OF EDITORS Howard F. Angione C ONTENTS Editor-in-Chief Queens e-mail: [email protected] Wide Use of Electronic Signatures Awaits Market Rose Mary Bailly Decisions About Their Risks and Benefits Albany Bill Zoellick 10 Willard H. DaSilva Garden City Document Examination—Detecting Forgeries Requires Louis P. DiLorenzo Analysis of Strokes and Pressures Syracuse R. Joseph Jalbert Paul S. Hoffman 24 Croton-on-Hudson Judith S. Kaye Internet Web Sites Offer Access To Less Expensive Case New York City Law and Materials Not Offered Commercially Kenneth P. Nolan William H. Manz 26 New York City Eugene E. Peckham Writing Clinic—The Keys to Clear Writing Convey Binghamton Thoughts Gracefully Albert M. Rosenblatt Susan McCloskey 31 Poughkeepsie Sanford J. Schlesinger New York City Richard N. Winfield New York City Daniel J. McMahon Managing Editor Albany e-mail: [email protected] D EPARTMENTS Eugene C. Gerhart Editor Emeritus President’s Message ______5 Index—1998-2000______44 Binghamton Editor’s Mailbox ______6 Index to Advertisers ______54 EDITORIAL OFFICES Point of View ______38 New Members Welcomed ______55 One Elk Street by L. Priscilla Hall Classified Notices ______59 Albany, NY 12207 Language Tips ______40 (518) 463-3200 by Gertrude Block 2000–2001 Officers ______62 FAX (518) 463-8844 Tribute—Justice Robert H. Jackson Res Ipsa Jocatur ______64 by James M. Rose ADVERTISING REPRESENTATIVE by Eugene C. Gerhart ______42 Network Publications Sheri Fuller 10155 York Road, Suite 205 O N T HE C OVER Crestridge Corporate Center Hunt Valley, MD 21030 This month’s cover illustration quotes Hamlet’s explanation of how he intercepted the (410) 628-5760 letter that Claudius, King of Denmark, sent with Rosencrantz and Guildenstern to the e-mail: [email protected] King of England, giving an order for Hamlet’s execution. Hamlet substituted instructions for Rosencrantz and Guildenstern to be killed instead, sealing the message with a copy of ADDRESS CHANGE – Send To: his father’s royal seal. The author of the article on electronic signatures suggests that the Records Department events of Shakespeare’s drama would have taken a different turn if Claudius had been NYS Bar Association able to encrypt the message electronically with a strong encryption algorithm and kept One Elk Street the key to himself. Albany, NY 12207 (518) 463-3200 The cover photo shows actor John Gielgud as Hamlet in a 1936 Broadway production e-mail: [email protected] of the play. ON THE WORLD WIDE WEB: Cover Design by Lori Herzing http://www.nysba.org

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all cita- tions and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted for publication becomes the property of the Association. Copyright © 2000 by the New York State Bar Association. The Journal (ISSN 1529-3769), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October, November/December. Single copies $12. Periodical postage paid at Albany, NY with additional entry Endicott, NY. POSTMASTER: Send address changes to: One Elk Street, Albany, NY 12207. Journal | November/December 2000 3 have been planning for some time by young lawyers—with their posi- to write about a topic only vaguely RESIDENT S tions and in some cases with their ca- Idefined but nonetheless critically P ’ reers. A few years ago, the Los Angeles important to the profession: the in- Times, reporting on the results of sur- creasing pressures on lawyers in the MESSAGE veys of young lawyers, disclosed that modern practice and the effects of many were “profoundly pessimistic” those pressures on the very lives of about the law, that they tended to be our colleagues. As I write this, I am re- more troubled than other profession- cuperating in a hospital in Queens, als by severe depression and drug having arrived here most unexpect- and alcohol abuse and that half of edly. My brief sojourn has focused my those surveyed would not choose the attention and converted it from a legal profession again, so deep was purely academic inquiry to a most their dissatisfaction. In a shocking practical and personal problem. For- revelation, the Mecklenburg County tunately, my prognosis is good and I Bar Association in North Carolina re- hope I will soon be back to—I almost ported that 11% of lawyers surveyed said full-speed and that I guess is part admitted to considering suicide at of the problem. least once a month. In Michigan, 60% The current prosperity experienced of respondents polled by the Michi- by large firms in major urban areas gan Lawyers’ Weekly stated that they across the nation has been widely re- would not enter the profession if they ported. Associates in major Wall Street had the chance to do it again. A law firms were awarded bonuses last Florida survey disclosed that about year that were greater than the salary 80% of lawyers who responded felt many lawyers my age received when depressed at least once a week. they began practice. At the same time, PAUL MICHAEL HASSETT Lawyer assistance programs many lawyers in less populated areas throughout the nation are beginning struggle just to get by. In the past Coping With to include depressive illness and decade there have been record num- stress, along with the traditional bers of applications for law school Career Pressures problems of alcohol and substance and tens of thousands of new lawyers abuse and addiction, as problems for have entered the profession each year, which lawyers can seek help from attracted by the fascinating portrayal of lawyers in the their professional association. I served for many years on media, by the glamour of Wall Street, by the chance to be the Board of Directors of the Erie County Bar Foundation where the action is and have a finger on the financial which, as many of you know, is one of the few in the na- pulse of the nation, and by a desire to influence society tion whose primary purpose is assistance to lawyers and and make it better. At the same time, tuition costs have their families in need. Over the years of my involvement increased, propelled simply by market forces, while ad- with the foundation, it was easy to identify the growing mission levels have expanded well out of proportion to number of applicants suffering from the stresses of their the availability of positions for law school graduates. practice and the resulting depressive illness. The result is tremendous competition for jobs in major It is hard to imagine that ours is the only profession metropolitan areas where the salaries are adequate to whose members are so afflicted, and it is also hard to un- allow a new lawyer to pay off huge student loan debt. derstand how the problem seems to have grown during Those who get those jobs work long hours with little time a time of general prosperity in the profession. But the sys- for family or friends or entertainment, for community in- temic demand for higher compensation by younger volvement or leisure activities. Those who do not find lawyers and the continuing high cost of maintaining the these jobs struggle simply to keep their heads above technological tools necessary for a modern law practice water. have increased the pressure on individual practitioners The promise of partnership in a major law firm, with to contribute to the revenues necessary to meet these de- its rewards of financial success and prestige, has tradi- mands. This pressure has led to a decrease in the amount tionally been a sufficient incentive for the long years of of time available to allocate to other traditional pursuits. effort necessary to achieve it, but observant graduates of Involvement in bar association activities and in commu- today see partners my age working as many hours as they ever did regardless of their compensation level. And Paul Michael Hassett can be reached at 1500 Liberty Build- so the profession is experiencing rampant dissatisfaction ing, Buffalo, N.Y. 14202.

Journal | November/December 2000 5 PRESIDENT’S MESSAGE ing the traditional law firm partnership structure is an- nity pursuits from Philharmonic Orchestras to Little other. Simple recognition by firm management that the League sports has suffered, as has the commitment of problem exists and open communication among attor- law firms in general to pro bono publico service. And, of neys at all levels of the organization will, of course, open course, the cost to law firms of recruiting and training re- the door to solving the quality of life problem. Perhaps placements for those associates who leave because of dis- many would even conclude that the salary expectations satisfaction after only a few years of practice is signifi- of the profession in general are unrealistic in an atmos- cant. phere where general quality of life and professional ful- Perhaps the problem is rooted as much in the expecta- fillment are for many as important as compensation. tions of the next generation of lawyers as it is in the Those of us in my generation who still practice in the changing economics of the profession. Younger lawyers same setting where we landed upon graduation from law are simply not as willing to devote all of their waking school will become fewer and fewer as time goes on. hours to a career—they want at least some time during Even those who stay within the profession will probably the work week to relax and pursue other interests. They practice in a new city or in a new area of the law or per- expect some time off on the weekends and look forward haps just in a new firm. I am nonetheless certain that I am to several weeks of vacation during the course of the increasingly comfortable with the choices I have made year. In addition, some suggest that today’s graduates ex- over the years, choices that have left me in the same firm pect to change careers several times during their lives— and engaged in essentially the same general practice I en- not jobs, but careers. They do not have the loyalty to the tered over three decades ago. I readily acknowledge lifelong practice of the law, much less loyalty to the first being busier now than I was then, but I consider it an ac- law firm that employs them. In fact many, perhaps most, complishment for I know many who have been forced to new law graduates fully expect to leave the profession leave the profession or to change positions simply to sur- some time, some much sooner than others and all much vive economically. The reward of professional fulfillment sooner than their employers expect. The American Lawyer is still there as well, and as long as it is many will suffer recently reported that a survey of mid-level associates in the burden required to achieve it. But we all have to rec- more than 50 New York law firms suggests that, on aver- ognize that substantial change in the profession and age, 19% of those surveyed were looking for new jobs; at change in those who choose it as a career must be ad- several firms the figure topped 40%. dressed. Many bar associations have studied the problem, and Widespread professional dissatisfaction and the re- while there certainly are no simple solutions, there are sulting physical and emotional problems that it engen- many things law firms can do to increase professional ders are not only destructive to the individual practi- fulfillment and to assist lawyers to find an appropriate tioner but to the profession as a whole. If I learned balance between their practice and their personal lives. anything from the few days I spent in Queens, it is that Relaxation of billable hour requirements, flexible work we must all strike an appropriate balance between the hours and appropriate compensation adjustments for pressures of our careers and the overall quality of our those who are willing to trade the financial reward for lives. For me, I guess it means that I may never get back quality of life are several of the possibilities. Re-examin- to full speed.

Court of Appeals’ decisions in Sim- constructive notice of a dangerous con- mons v. Metropolitan Life Insurance Co., dition. EDITOR’S 84 N.Y.2d 972, 622 N.Y.S.2d 496 (1994), In Simmons, the Court of Appeals Piacquadio v. Recine Realty Corp., 84 affirmed the Appellate Division, First MAILBOX N.Y.2d 967, 622 N.Y.S.2d 493 (1994), Department’s dismissal of a snow- Murphy v. Conner, 84 N.Y.2d 969, 622 and-ice case against the private defen- N.Y.S.2d 494 (1994), and Mercer v. City dant on the ground that the defendant Recurring Conditions of New York, 88 N.Y.2d 955, 647 did not have actual or constructive no- n the September issue of the Journal, N.Y.S.2d 159 (1996). In those cases, the tice of the existence of the alleged ice Y. David Taller opines that proof of Court of Appeals reaffirmed its hold- patch. In the Court of Appeals, in sup- Iany recurrent condition, whether ing in Gordon v. American Museum of port of his constructive notice argu- transitory or structural, can defeat a Natural History, 67 N.Y.2d 836, 501 ment, the plaintiff cited the recurrent defendant’s notice defense. While Mr. N.Y.S.2d 646 (1986), and rejected the condition cases, the fact that it had Taller discusses certain intermediate viability of transitory recurrent condi- snowed one week earlier, and testi- appellate court case law in support of tions, such as water, grease or debris mony that the defendant regularly his thesis, he fails to even note the on stairs or floors, as sufficient proof of CONTINUED ON PAGE 8

6 Journal | November/December 2000 CONTINUED FROM PAGE 6 to remedy the danger presented by the man, 153 A.D.2d 849, 545 N.Y.S.2d 369 cleaned the walkway by piling snow liquid after actual or constructive (2d Dep’t 1989), would have affirmed on the either side of the path, which notice of the condition” (emphasis liability on the strength of the recur- created a dangerous condition. See added). The Court thereby rejected the rent condition theory. However, the Plaintiff’s Letter to the Court of Ap- recurrent condition theory as a legally Court of Appeals unanimously af- peals, dated October 20, 1994, at pp. viable predicate to establish construc- firmed, finding that the plaintiff failed 10-11; 12-13. The Court of Appeals af- tive notice of a specific transitory dan- to establish notice and expressly hold- firmed, holding that the evidence was gerous condition. Finally, in Murphy, ing that there was nothing in the insufficient to establish notice as a the third case decided along with Sim- record to establish that the city had ac- matter of law because there was no ev- mons and Piacquadio, the Court of Ap- tual or constructive notice. idence introduced as to the origin of peals ruled that the mere existence of a Many appellate rulings have ac- the patch of ice. The Court specifically highly polished floor is insufficient to knowledged and relied upon Sim- ruled that the testimony showing it establish a dangerous condition. mons, Piacquadio, Murphy, or Mercer, to had snowed a week before the acci- Subsequent to its decisions in Sim- dismiss cases involving transitory dent “was insufficient to establish no- mons, Piacquadio, and Murphy, the conditions for lack of notice, notwith- tice because no evidence was intro- Court of Appeals decided Mercer v. standing recurrent or generalized duced that the ice upon which plaintiff City of New York, 88 N.Y.2d 955, 647 condition arguments. See, e.g., Estrada fell was a result of that particular snow N.Y.S.2d 493 (1996), in which it again v. City of New York, __ A.D.2d __, 709 accumulation.” The Court further rejected the recurrent condition theory N.Y.S.2d 105 (2d Dep’t 2000) (oil on found that any finding of constructive as a basis for constructive notice of a roadway); Leo v. Mt. St. Michael Acad- notice would be pure speculation. transitory condition. The plaintiff, a emy, __ A.D.2d __, 709 N.Y.S.2d 372 Consequently, the Court rejected the New York City Department of Sanita- (1st Dep’t 2000) (wet stairs); Low v. recurrent condition theory as a legally tion worker, allegedly slipped and fell 138-15 Franklin Avenue Apartments viable predicate for establishing con- in a large grease puddle, which had ac- Corp., 272 A.D.2d 57, 707 N.Y.S.2d 317 structive notice of this transitory con- cumulated on the floor of the garage (1st Dep’t 2000) (wet lobby floor); dition. facility at which he worked. The Eldor Contractors Corp. v. County of In Piacquadio, decided contempora- garage supervisor had admitted that Nassau, 272 A.D.2d 509, 708 N.Y.S.2d neously with Simmons, the plaintiff fell oil generally leaked overnight from 447 (2d Dep’t 2000) (debris on floor); on a liquid substance on a terrazzo parked vehicles. Mercer, 223 A.D.2d Booth v. City of New York, 272 A.D.2d staircase located near a kitchen. The 688, 637 N.Y.S.2d 456 (2d Dep’t 1996). 357, 707 N.Y.S.2d 488 (2d Dep’t 2000) defendant had previously placed non- The jury returned a verdict for plaintiff (snow and ice); Smith v. Leslie, 270 skid strips on the stairs, which had and the city appealed on the ground A.D.2d 333, 704 N.Y.S.2d 612 (2d worn out in places. In the Court of Ap- that there was no notice of the particu- Dep’t 2000) (snow and ice); Chapman peals, citing the recurrent condition lar oil spot on which the plaintiff v. City of New York, 268 A.D.2d 498, 702 cases, the plaintiff argued, among claimed to have slipped. The plaintiff N.Y.S.2d 355 (2d Dep’t 2000) (snow other things, that defendant had con- argued that constructive notice was es- and ice); Doherty v. Great Atlantic Pa- structive notice because the terrazzo tablished because the oil and grease cific Tea Co., 265 A.D.2d 447, 696 steps were inherently dangerous and spots on the floor of the garage were a N.Y.S.2d 236 (2d Dep’t 1999) (debris the defendant should have known recurring condition. Id. at 692. The Ap- on floor); Cheng v. New York City Hous- about the likelihood of liquids spilling pellate Division, Second Department, ing Authority, 262 A.D.2d 14, 690 (See Plaintiffs-Respondents’ Brief to rejected the plaintiff’s recurrent condi- N.Y.S.2d 560 (1st Dep’t 1999) (wet Court of Appeals at 9-35; 28-29). The tion argument in a 3-2 decision, citing floor); Cruz v. 1926 Elsmere, Inc., 262 Court of Appeals found no evidence to Simmons and Piacquadio, and held that, A.D.2d 150, 694 N.Y.S.2d 1 (1st Dept. establish constructive or actual notice “in the absence of any evidence of the 1999) (snow and ice); Ortega v. New of the particular liquid that caused origin of the patch of grease upon York City Transit Authority, 262 A.D.2d plaintiff to fall and dismissed. The which the plaintiff allegedly slipped, 470, 692 N.Y.S.2d 131 (2d Dep’t 1999) Court unequivocally held that “‘a gen- or proof that it existed for a sufficient (slippery substance); Fedida v. Paul eral awareness’ that a dangerous con- length of time to afford the defendant Conte Cadillac, Inc., 258 A.D.2d 437, dition may be present is legally insuf- an opportunity to remove it, a finding 638 N.Y.S.2d 870 (2d Dep’t 1999) ficient to constitute notice of the that the defendant had constructive (grease in service area); Abaya v. City particular condition that caused plain- notice would be pure speculation.” of New York, 257 A.D.2d 446, 683 tiff’s fall.” “[L]iablility could be predi- The Appellate Division dissenting jus- N.Y.S.2d 263 (1st Dep’t 1999) (snow cated only on the failure of defendants tices, relying upon Weisenthal v. Pick- CONTINUED ON PAGE 37

8 Journal | November/December 2000 Wide Use of Electronic Signatures Awaits Market Decisions About Their Risks and Benefits

BY BILL ZOELLICK

he Electronic Signatures in Global and National Electronic signatures will be important, but will also re- Commerce Act1 establishing the validity of elec- quire substantial judgment on the part of business man- Ttronic signatures for interstate and international agers to determine when their use makes sense. Man- commerce is an important piece of legislation, but not agers must also match the selection of electronic for the reasons portrayed in most of the press coverage. signature technology and infrastructure with the costs, The act is not revolutionary, as some claim, but is in fact risks, and benefits unique to each particular signature cautious and conservative in that it lets the market make application. the important decisions about electronic signatures and What the Act Does about the infrastructure required to use and trust them. Forty-six states already have some kind of legislation The focus on the market rather than legislation as the that establishes the validity of electronic signatures. In primary force to shape the use of electronic signatures some, such as Utah, the legislation even specifies partic- has important implications for managers of businesses ular approaches to encryption, sets liability limits, and that might use such signatures. Rather than simply un- takes other steps toward constructing the infrastructure derstanding the law, business managers also need to un- to support electronic signatures. But different states derstand the risks and benefits associated with elec- have passed different laws, and states cannot regulate tronic signatures. They need to be able to identify the interstate commerce or international transactions. key capabilities that they should put in place to prevent The federal law provides a way to harmonize the dif- fraud and to reduce the potentially significant liabilities ferent state regulations and a framework for interstate associated with uninformed use of electronic signatures. commerce. The primary purpose of the law is to ensure Most important, they need to be able to make judgments that no signature or contract will be ruled invalid sim- about when the use of electronic signatures makes busi- ply because it is in electronic form. In other words, elec- ness sense. This article begins with a brief summary of the Elec- tronic Signatures Act, explaining what it does and what BILL ZOELLICK is a partner at Fastwa- it leaves to the market. The review of the act leads natu- ter LLP, an engineering and marketing rally to the broader question of what needs to be in firm in Boulder, Colo., that works with place before the parties to a transaction can trust and companies to develop products and use electronic signatures. Next, the article looks at the solutions for e-business. He is the au- most important problems and risks that companies thor of Web Engagement: Connecting to wishing to use electronic signatures must address. It Customers in e-Business (Addison Wes- closes with suggestions about how business managers ley 2000) and the co-author of File involved with electronic transactions should evaluate Structures: An Object Oriented Approach and address opportunities to use electronic signatures. With C++ (Addison Wesley 1997). This article is adapted from a forthcoming book on e-business policy issues re- The hype surrounding the passage of the Electronic volving around privacy and intellectual property that Signatures Act gave the impression that a consumer will be published by Addison Wesley in 2001. © Fastwa- could now replace her/his written signature with an ter, LLP 2000 electronic one, and that this suddenly opens up a new The author wishes to acknowledge the helpful criticism era of e-commerce in which people will be able to use and discussion of an early draft of this article by Randy this personal electronic signature to buy cars, acquire Kahn and Robert F. Williams of Cohasset Associates and homes and mortgages, and execute dozens of other im- by Scott Allison of Walker Digital. portant transactions. The reality is more complicated.

10 Journal | November/December 2000 tronic signatures and records are as good as paper ones, subject to the same general questions of authenticity that apply to paper documents. Presidential The bill does not, of course, require that people use Signing Ceremony electronic signatures. In fact, it makes the use of elec- tronic records and signatures in place of paper contin- After President Clinton signed the “Electronic gent upon the active consent of all parties involved in Signatures in Global and National Commerce the transaction. Moreover, the consent must be provided Act” with pen and ink (still required for legisla- electronically, in order to demonstrate that each person tion, interestingly enough), he also signed it elec- can actually access records electronically. Congress is at- tronically. tempting to ensure that people without access to the The President’s use of an electronic signature hardware to sign or access documents electronically are for the act contained symbolic messages other not excluded from doing business and contracting for than the obvious one. One side effect of the pub- services. On the other hand, the legislation does give licity surrounding this event is that we all now businesses the right to charge an extra fee for having to know the password associated with the Presi- deal with paper rather than electronic signatures and dent’s digital ID, “Buddy,” the name of the Presi- records—choosing to use paper can end up costing the dent’s dog. In his choice of a weak password and customer more. Businesses also have the right to termi- in his more revealing willingness to publicize his nate a relationship with a customer who withdraws con- password, the President told us that he is certainly sent to receive electronic records. As use of electronic not going to be using electronic signatures him- signatures and records matures and as market tolerance self. That’s not surprising, of course. But, good for “electronic only” operations increases, these provi- communicator that he is, he is demonstrating that sions will allow businesses to accelerate movement there are still educational and infrastructure barri- away from paper. ers in the way of broad, routine use of electronic Although the focus of most news coverage of the act signatures. has been on electronic signatures, the legislation is also important because of its treatment of electronic records (to which the electronic signatures would be attached). What the Act Does Not Do Given the active consent of a party to receive electronic The act does not say what an electronic signature is, information, the legislation establishes electronic other than to provide the very general definition that it records and electronic notice as satisfying requirements is an “electronic sound, symbol, or process, attached to for notice in writing. Further, it makes it acceptable to or logically associated with a contract or other record use an electronic record in place of paper record in a and executed or adopted by a person with the intent to broad class of instances where record retention is a re- sign the record.” quirement. Overall, the purpose is to establish that elec- An electronic signature could be my name, spelled in tronic records and signatures can replace paper for most ASCII characters, at the bottom of a document. It could transactions. be a digitized image of my handwritten signature. It Another important feature of the act is that it creates could be a digital signature using a public key architec- a class of transactions and contracts that are exempt ture and a certification authority. It could be a biometric from the effect of the act. In other words, there are trans- signature such as an electronically recorded thumbprint actions for which electronic records, notice, and signa- or a retina scan. It could be a voiceprint of me saying my tures cannot be substituted for paper. This set of excep- name or it could be the digital encoding of the biomet- tions includes wills, divorce and adoption documents, ric factors (pressure, speed, direction) that I use in creat- court orders and other court documents, eviction or ing my handwritten signature as detected on a digital foreclosure notices, notice of cancellation of life insur- pad. Clearly, some of these signature technologies will ance or health insurance, cancellation of utility services, be more secure or easier to authenticate than others. The and product recall notices that impact health or safety. Electronic Signatures Act will let the market sort out the Finally, the act preempts state legislation that contra- winners from the losers.2 dicts the federal law or that requires use of specific tech- Consistent with the refusal to evaluate and choose nologies or methods of signing or encoding electronic technologies, the bill does not deal with any of the in- documents. It does allow the states to specify alternative frastructure needed to establish the validity of signa- procedures or requirements for establishing the accept- tures, other than to state that when a notary public is re- ability or validity of electronic signatures or documents. quired to verify identity, the notary can use an electronic

Journal | November/December 2000 11 signature in performance of the notarization function. Hamlet’s opening the letter that Claudius sent with Similarly, the act does not deal with liability issues asso- Rosencrantz and Guildenstern to the King of England, ciated with certification authorities or falsification of sealed with the Danish king’s royal seal, giving the signatures or documents. These issues are, as they are order for Hamlet’s immediate execution. Hamlet with paper documents, left to the states or to the Uni- changed the order to request the execution of the letter’s form Commercial Code. bearers, affixed his father’s copy of the royal seal, and sent Rosencrantz and Guildenstern to their deaths. In- What Signatures Need to Do tegrity in transit matters. Before attempting to assess the probable impact of Non-repudiation If I loan you money and you sign a the act on e-business, let’s step back and look at the note promising to repay it, I want to ensure that you broader question of what we need in order to have con- cannot later “repudiate” your signature, claiming that it fidence in a signed docu- is not yours at all and that ment. Understanding the you made no promise to “big picture” issues will One of the most famous examples repay. show how close we are to ac- Faced with such a claim, I tually being able to use elec- illustrating the critical importance could hire an expert in hand- tronic signatures. of integrity is Hamlet’s opening writing analysis who might Authentication We need the letter that Claudius sent with be able to convince a court to know that the signature on that the signature is indeed the document actually be- Rosencrantz and Guildenstern, yours. I would be in a much longs to the person we be- better position if I had also lieve to be buying the home, giving the order for Hamlet’s required the signatures of signing the contract, incur- immediate execution. witnesses to the act of your ring the debt, and so on. In signing. Notaries can serve other words, we need to as witnesses, because they know that the signature is not a forgery. keep a record of each signature that they authenticate. In the world outside of electronic signatures we use a number of systems to ensure against forgery. For fre- Unresolved Issues quent and typically relatively low value transactions we Given this outline of what is required to give us the keep a record of the authentic signature on file (e.g., a confidence necessary to act on a signed document, how bank’s signature card). For more critical transactions we close are electronic signatures to meeting the require- require that the signature be “notarized,” which is to say ments? that we trust a third party to verify that the signature is Authentication I have a digital signature of my own. authentic. To make sure that the notary does her/his It consists of a public key and a private key that allow job, state laws make notaries liable for damages (usually me to send encrypted e-mail to other people with digi- limited to some fixed amount) if the signature turns out tal signatures. I can assert, through use of my private to be a forgery. For really important transactions, such key, that a signed document came from me. Should you as the sale of a house and the signing of a mortgage, we believe me? require that the signatories be physically present for the I obtained my digital signature by going to the Web signing or provide power of attorney to someone who site of a Certification Authority (CA) and giving them can be physically present. For such critical deals we still my name and e-mail address, along with $15. That’s it. want to be able to look the other party in the eye. The Nobody looked at my driver’s license, passport, or birth ceremony surrounding the signing event signifies to all certificate. There is no checking mechanism that would parties that the deal is done. prevent me from, say, creating a new e-mail address for Integrity Once the document is signed we want to my brother, Bob, and then paying another $15 to get a make sure that it is not altered. I want to be bound by digital signature for Bob. The problem (or opportunity) the agreement that I sign, not by some other agreement. would be that I, not Bob, would have the private key for With paper documents we typically do this by giving Bob’s signature. If I started using Bob’s digital signa- each signatory a copy of the signed document. When ture, and if companies accepted it as Bob’s, I might be documents are sent back and forth to be executed over able to spend a lot of my brother’s money. distance, we trust that the mail or express delivery pack- The issue here is not the security of the actual digital ages are not opened and that the documents are not signature, but the nature of the certification that authen- tampered with in transit. One of the more famous ex- ticates it. The kind of digital certificate that I can get for amples illustrating the critical importance of integrity is CONTINUED ON PAGE 14

12 Journal | November/December 2000 CONTINUED FROM PAGE 12 not be able to be sure just who the real person is who sent the message, but you can be sure that the message my e-mail, and Bob’s e-mail, is a “Class 1” certificate. that you received was the message that was sent. There are other kinds of authentication and other kinds of certificates. For example, to get a Class 3 certificate The biggest barrier to message integrity at the mo- from VeriSign, one well-known digital signature certifi- ment is the fact that a surprising number of business cation authority, one has to appear in person.3 The point people do not encrypt their e-mail, even when it con- is that electronic signatures cerns sensitive, business-critical agreements. are not all alike and are not Non-repudiation If you all equally worthy of your If Claudius had encrypted the cannot authenticate the iden- trust, even when they use the tity of the sender, the issue of same technology for keys message using a strong encryption non-repudiation is moot. We’re back to the same infra- and encryption. algorithm and kept the key to Remember what the act structure problem behind au- does. It simply states that it is himself, Hamlet would have thenticating the identity be- permissible to use an elec- hind a signature. It is tronic signature in places been a dead prince much possible to solve the authen- where I would have used earlier in the play. tication problem for many pen and ink. It does not business applications, how- speak to the technical merits ever. If you can take care of of different signature technologies, much less to the re- the authentication, you can quirements for certification. It does not augment the ex- get non-repudiation as well. The reason for this is that isting authentication infrastructure with a new one that certain kinds of digital signatures act like a kind of elec- is appropriate for e-commerce. This is a critically impor- tronic fingerprint and can be uniquely associated with tant fact for web business people to keep in mind as the signer. It is worth noting that there are also kinds of they try to understand the impact of this bill. The infra- “electronic signatures” included in the broad definition structure does not change just because of this bill. of the Electronic Signatures Act that would not address non-repudiation (e.g., the ASCII representation of my Before electronic signatures are used in new ways, name). It will take a while for the market to settle on supporting new kinds of e-commerce, we need to estab- technologies that work and to weed out the ones that lish mechanisms for authenticating electronic signa- don’t. tures. As we will see in looking at liability concerns as- Liability The Electronic Signatures Act simply states sociated with authentication, the problem is more that legal documents will not be declared invalid solely complicated than simply having everyone get a Class 3 because they are in electronic form and contain elec- digital ID. The complexity and the need to allocate risk tronic signatures. It does not make other changes in law in different ways for different contexts is why it is ex- or infrastructure. So nothing else should change, right? actly right that the act does not prescribe how to au- Unfortunately, because electronic signatures are new thenticate signatures, leaving it to the market to figure technology, untested in the courts, the use of electronic out what works best. signatures will inevitably raise new questions about Integrity If Claudius had ordered Hamlet’s death in who is responsible for paying the costs if something an e-mail sent in clear text to the King of England, Ham- goes wrong. For example, consider the following hypo- let may have still been able to change it to a request for thetical situation, presented and explored by C. Brad- the execution of Rosencrantz and Guildenstern, assum- ford Biddle.4 Biddle’s scenario assumes that some ing he could intercept the e-mail. Perhaps relying on the company or other entity steps forward to act as a certi- connections of his friend Horatio, he could have cap- fication authority—kind of like a super notary—keep- tured it using a filter placed on the primary Internet ing track of digital certificates, or signatures, and vouch- links leaving Denmark. In that case he wouldn’t have ing for their validity. In this scenario, the “private key” even needed his copy of the king’s seal. is the part of the signature that the signer uses to assert But if Claudius had encrypted the message using a authenticity. strong encryption algorithm and kept the key to him- self, Hamlet would have been a dead prince much ear- Cedric, a licensed certification authority, duly issues a lier in the play. certificate to Susan, who accepts it. Cedric publishes the certificate in a recognized repository. Susan’s private Electronic signatures, coupled with encryption, are key, which corresponds to the public key in the certifi- currently capable of ensuring the integrity of a message. cate, is kept on a floppy disk. Irving, a malicious com- This is what my Class 1 Digital ID does well. You may CONTINUED ON PAGE 16

14 Journal | November/December 2000 CONTINUED FROM PAGE 14 detect the virus was within the bounds of “reasonable puter hacker, releases a computer virus on the Internet care.” that finds its way onto Susan’s computer. Subsequently Biddle notes that under the Utah digital signature when Susan uses her private key, the virus program law Susan accepts much greater risk than she does by surreptitiously sends a copy of Susan’s private key to using her credit card, where consumer liability in the Irving. Irving immediately uses the private key to cash case of fraud is capped at $50. If she kept using only a $10,000 electronic check drawn upon Susan’s account handwritten signatures, she would have no liability, be- payable to a numbered, anonymous account in a state having rigorous bank secrecy laws. Irving disappears cause one cannot be bound by a fraudulent handwritten and cannot be found. As soon as Susan learns of the signature. Biddle observes that “no rational consumer fraud she revokes her certificate. would agree to accept this level of risk in a marketplace transaction. The benefits of having a certificate simply Who covers the $10,000 loss? Susan’s first hurdle if do not outweigh the very real possibility of facing ex- she wants to avoid the $10,000 loss is to repudiate the traordinarily large unreimbursed losses.”5 false signature. The Electronic Signatures Act does not But if we don’t want to hold Susan responsible for the say what the standard for non-repudiation should be. loss, who should hold the bag? The certification author- Some states, such as Utah, have set up more specific ity? If the authority is a third party that is not involved rules to deal with such issues. Under the Utah law, a in the transaction, but only in validating the signature document containing a person’s electronic signature is key, this could be quite a burden. Such a company presumed to have been signed by that person unless the would have no way of knowing whether the signature individual can present “clear and convincing” evidence was tied to a micropayment of a few cents or tied to the that he/she did not, in fact, sign the document. So, if she purchase of a home. Unbounded liability for transac- lived in Utah, Susan would need to start out by hiring tions to which you are not a party sounds like a great an attorney and the technical expertise required to meet way to go broke. a high standard of proof in convincing the court that she The third alternative is to make the party who ac- did not sign the check. cepted the signature liable for the loss. In Susan’s case, However, even if Susan gets past that hurdle, she this would be the bank receiving the payment. In such a may still be liable for the loss. The Utah law makes the case, the bank might want to do away with the services person who owns the electronic signature completely of a third party certification authority, establishing its responsible for any loss due to a failure to exercise “rea- own records of signatures and its own rules for accept- sonable care” in safeguarding the private key. Wouldn’t ing them. The bank might, for example, set a limit on “reasonable care” include use of a virus protection pro- how much risk it is willing to take on the authenticity of gram? The Utah law doesn’t say, so Susan would be left with the task of convincing the court that her inability to CONTINUED ON PAGE 18

Digital Signatures Evolved to Encrypt Messages on Public Networks “Electronic Signature” is a broad term that encom- net. Good encryption technologies had been around for passes many different approaches to establishing iden- a long time, but they were all “symmetric” in the sense tity in electronic communications. Used in this broad that the key used to lock (encrypt) a message was also way, electronic signatures include digitized images of the key used to unlock (decrypt) a message. This meant signatures (as on faxed documents), biometric ap- that secure communication depended on shared copies proaches to identification (e.g., retina scans, thumbprint of keys. Whether the encryption system was the scans), and the use of special encryption keys known as “Enigma” machines used by the Germans in World War “digital signatures.” This last category, digital signa- II or the DES encryption scheme that became a standard tures, is what many people have in mind when they talk within the financial and information processing com- about electronic signatures. Because digital signatures munities in the 1970s, the extent to which anyone could will see broad use, it is useful to have a high-level idea communicate securely was limited by the extent to of how they work. which they could safely distribute keys. For computer Digital signatures were invented as one part of a so- networks, this meant that you needed to find some way lution to a larger problem. The larger problem had to do to communicate that was OFF the network—usually by with encrypting messages so that they could be trans- secure private couriers—before you could communicate mitted securely over public networks such as the Inter- CONTINUED ON PAGE 22

16 Journal | November/December 2000 CONTINUED FROM PAGE 16 tronic signature” is broad enough to cover any conceiv- an electronic signature, requiring additional evidence of able approach to recording electronic signatures. authenticity for amounts exceeding that limit. Note that • Before companies will accept electronic signatures the bank, as a party to the transaction, is in a better po- they need to know when to trust them as authentic and sition to assess risk than a third-party certification au- when not to. Just as the act leaves it to the market to sort thority would be. out useful electronic signature technologies from those The point here is not to resolve these issues or to that are not secure, convenient, or are flawed in some argue for a particular solution. The examples and de- other way, the act also leaves it to the market to develop tailed discussion of liability are intended to drive home useful mechanisms for validating signatures and estab- the idea that authentication is not a technical problem, lishing trust in electronic documents. but it is sometimes a legislative problem and always a • There are important questions about liability associ- business problem. There is overhead and expense asso- ated with the use of electronic documents and signa- ciated with authentication—electronic signatures do not tures that are not clearly resolved by reference to exist- make that expense go away. The amount that you spend ing laws and regulations concerning paper transactions. to reduce the probability of fraud needs to be balanced The electronic signatures bill does not touch on these. against the costs of fraud. If you are engaged in transac- This is consistent with the decision not to prescribe de- tions where your worst case loss can be held to a few tails of signature technologies or authentication and dollars, you may be willing to make signatures quick trust mechanisms. But it does mean that there may be and easy, accepting some loss, in order to do more busi- potentially large liabilities associated with the use of ness. If you are, however, incurring substantial expo- electronic signatures until there is more experience, sure, you will want to make the investment required to legal precedent, and, possibly, legislation dealing with buy substantial assurance of authenticity. electronic signatures and records. Existing State Laws The new federal law is catholic • The act preempts state laws to the extent that they are (some might even say indiscriminate) in its embrace of not consistent with the federal law and to the extent that electronic signature technologies and infrastructures. Its they exhibit preference for particular technologies. Be- approach is to let the market do the work of sorting cause state laws can augment the federal law in impor- things out. tant areas such as authentication and liability, it will Some state laws, such as Utah’s, prescribe particular take time and perhaps some testing in the courts before approaches to electronic signatures. The federal law pre- the lines between federal law and state law are clear. empts state laws that “require, or accord greater legal The short summary of these points is that a signature status or effect to, the implementation or application of or contract cannot be considered invalid solely because it a specific technology or technical specification.” How is electronic, but there are currently many other consid- will this affect the law and the use of the digital signa- erations that might make an electronic signature invalid. ture infrastructures that are already in place in Utah and As of the date that the act was signed, there was very lit- in other states? This is a complicated question that will tle in the way of legislation, accepted practice, or widely take time, and perhaps additional action on the part of used infrastructure that would make electronic signa- state legislatures, to answer. tures safe for use between parties that did not already have a basis for trusting each other. Probable Impact All the same, the act will succeed in stimulating in- We have looked at what the electronic signatures act creased use of electronic signatures and documents. But does. We have also looked at what else needs to be in the initial increased use will not come in the form of place before electronic signatures can be trusted. Let’s auto purchases, home loans, and other general con- summarize before moving on to a look at probable im- sumer commerce applications featured in early stories pacts. and commentary about the electronic signatures act. In- • The Electronic Signatures in Global and National stead, the initial use will come in contexts where the is- Commerce Act deals broadly with the use of electronic sues of trust and authentication are already addressed documents. Its intent is to ensure that, with a few ex- through existing relationships or mechanisms. ceptions, no contract, signature, or other legal document Consider for example the relationship between a is invalidated solely because it is in electronic form. manufacturer and a supplier where signatures are re- • The act provides for a relatively small number of ex- quired for each order from the supplier, but where the ceptions where a signature, notice, or agreement can overall relationship has been established in an existing still be required to be in paper form. purchase agreement. In this case each party can exercise • The act relies on the market to decide what kinds of control over the signature authority granted to employ- electronic signatures are useful. Its definition of “elec- CONTINUED ON PAGE 20

18 Journal | November/December 2000 CONTINUED FROM PAGE 18 sudden revolution in e-commerce. The aims of the bill ees and concerns about liability and indemnification are are more modest than that, simply removing legal ob- already covered in the separate agreement. Dealing structions that might stand in the way of letting the mar- with paper or faxed signatures is simply an added cost. ket do its work in sorting out electronic signature tech- If such parties are not already using electronic signa- nologies and approaches to authentication. Managers tures, the act should give them the green light to do so could misread the impact of the legislation if they look now. for broad, sweeping effects or expect the act to resolve matters that are still left to the market to sort out. Or consider the variety of transactions and the ex- change of documents between insurance companies, in- The real impact of the act is that it removes barriers surance brokers, and customers. The act states that it is to the use of electronic signatures in business contexts the express intent of Congress that the new law apply to where such signatures already make business sense. The the business of insurance. Insurance is a good candidate challenge for the manager is to recognize those contexts. for early application of electronic signatures and record You should look for the following kinds of business sit- delivery because the costs of moving everything back uations: and forth in paper are high. Just as important, the insur- • A high volume of transactions requiring signatures, so ance company is in a position to establish an agreement that there are real cost savings or performance improvements with each customer that establishes the specific tech- from adopting electronic signatures. Frequently, electronic nologies to be used for signatures, authenticates the sig- signatures will not make business sense for infrequent nature for each customer, and establishes the specific transactions between parties. The costs of establishing terms of the agreement between the company and the satisfactory authentication will often outweigh the sav- customer concerning loss or theft of digital keys, forgery, ings from the use of the electronic signature. liability, and so on. In short, the insurance company can • Parties who already know each other, or have some other set up its own authentication infrastructure and liability already-in-place or easy-to-establish mechanism for authenti- agreements with its agents and customers, and so is free cating signatures. If authentication is cheap and easy, to make immediate use of electronic signatures. then it is easier to make the business case for electronic signature use. Emerging Picture What emerges from these exam- The ability to easily create agreements (or use existing ples is a picture of electronic signature use that is very • ones) covering liability and fraud. different from the view that one might begin with when Again, existing infra- first thinking about the problem. Most people have one structure that can be adapted for use with electronic sig- handwritten signature. By analogy, one might expect to natures makes the business case for electronic signa- have one electronic signature and that this signature tures easier by bringing down the costs. would be recognized and accepted by your insurance • Situations where the cost of fraud is relatively low (e.g., agent, your bank, and by the general business commu- transactions with a low value for each transaction). As nity. But, as we have seen, there are substantial prob- noted above, if your risk of loss is lower, you can accept lems associated with authenticating such signatures and more risk of fraudulent transactions. with assigning liability for forgery in such a general As the act suggests directly, the insurance business is scheme. form and paper intensive and deals with a great many Those problems disappear, however, when the par- transactions that meet at least some of these criteria. ties to a transaction can set up a separate, private agree- Supply chain relationships are another area in which ment, as in the case of our manufacturer and supplier or many transactions meet these criteria. our hypothetical insurance company, broker, and cus- The Electronic Signatures Act will also stimulate new tomer. Such case-by-case agreements governing elec- areas of business for software vendors and service tronic documents and signatures can treat the technol- providers. The problems associated with presenting, ogy, authentication, and liability issues in ways that are tracking, managing, and authenticating electronic sig- appropriate to the scale and to the nature of the transac- natures and records are opportunities for the companies tions being conducted. So, rather than having one elec- that can address them. Given the complexity and critical tronic signature, analogous to your one handwritten importance of being able to authenticate signatures, signature, you will probably have a number of different there will be interesting opportunities for companies electronic signatures for use in the different business that can outsource that capability for clients or that can contexts. provide customer companies with the tools and processes to manage the authentication themselves. Analysis and Suggestions One important point that software vendors and ser- Despite news stories that suggest otherwise, the Elec- vice providers should remember as they address these tronic Signatures Act is not going to be the catalyst for a CONTINUED ON PAGE 22

20 Journal | November/December 2000 opportunities is that the early applications will be in- 1. Pub. L. No. 106-229, “the Electronic Signatures Act.” The dustry and situation specific. For example, insurance com- legislation, designated S.761, was signed by President Clinton on June 30, 2000. A copy of the full text of the bill panies will need technology and perhaps services in is available from the “Thomas” service of the Library of order to set up their own electronic signature manage- Congress. Search for bill number S.761 at http://thomas. ment and authentication systems. The same will be true loc.gov/. of financial services companies, retailers managing their 2. From a computer scientist’s or web business person’s viewpoint, anything moving on the Internet is necessarily supply chains, manufacturers sourcing materials from in digital form, and so any kind of signature sent across suppliers, and so on. The problems associated with au- the Internet would be a “digital signature.” Attorneys thentication and liability in the general case will ensure and legislators, however, prefer to reserve the term “digi- that, for a while at least, these applications will be rela- tal signature” for applications that use public encryption keys and matching private encryption keys to transmit tively narrow and focused on the needs of individual documents securely and to “sign” them. The broader companies in particular vertical markets. The way for a term “electronic signature,” includes this more restricted software vendor or service provider to go wrong here class of “digital” signatures as well as other kinds of elec- would be to believe the hype about sudden revolution, tronic signatures that do not use public key encryption. 3. For more information about VeriSign’s classes of service, wish away the authentication issues, and go after an un- see the VeriSign OnSite 4.0 Administrator’s Handbook, differentiated, horizontal market. The technologies will section 12.1.1, available on the web at http://www. be applied horizontally, but the approach to the markets verisign.com/onsite/doc/adminBook/adminBook/ must be vertical. admin.html. 4. C. Bradford Biddle, COMMENT: Misplaced Priorities: The If, as Senator Spence Abraham, a chief sponsor of the Utah Digital Signature Act and Liability Allocation in a Pub- act, said, the Electronic Signatures Act supplies the lic Key Infrastructure, 33 San Diego L. Rev. 1143 (1996). pavement for the e-commerce lane of the information Draft version available on the Internet. Accessed July 9, highway, it will be supplying it one stone at a time, at 2000 at http://www.acusd.edu/~biddle/mp.html. 5. C. Bradford Biddle, Legislating Market Winners: Digital least for awhile. All the same, most businesses will want Signature Laws and the Electronic Commerce Market- to begin using the road soon, because early markets are place World Wide Web Journal. (Summer 1997). Accessed the time to build advantage. But you should also be re- July 9, 2000 at http://www.w3journal.com/7/s3. alistic about how much of the highway is complete and biddle.wrap.html. about how rough the ride can be if you drive fast where the pavement is still under construction.

CONTINUED FROM PAGE 16 The public/private key idea was a slick one. The only problem was that, for awhile, nobody could find a ON the network. Clearly, secure communications with way to create an encryption scheme that used such people that you have never met—something that we asymmetric keys. Finally, though, Ronald Rivest, Adi now take for granted on the Internet—was impossible. Shamir, and Leonard Adleman came up with an en- The solution to this problem was first outlined by cryption algorithm—later named “RSA” after the in- Whitfield Diffie in the mid-1970s. Diffie’s insight was ventors’ initials—that did the job. Rivest, Shamir, and that it would be possible to get around the key distrib- Adleman knew that if they were going to build an ution problem if you could invent a way of locking asymmetric locking scheme they would need to focus things that used two keys. Unlike symmetric encryp- on mathematical operations that are, themselves, asym- tion, where the sender and the receiver used the same metric and one-directional. Most mathematical opera- key to lock the message and then to unlock it, Diffie pro- tions are symmetric and two-way. For example, if you posed use of an asymmetric encryption scheme in add numbers together, it is just as easy to reverse the which the locking and unlocking functions were split operation and subtract them. But there are a number of apart. A “public” key would be used to encrypt a mes- mathematical operations that are very difficult to run sage. The locked message could be decrypted only backwards. One of these is the “factoring” of a large through use of an associated “private” key. Assuming number into its “prime” components. Prime numbers that you could find a way to create such public-private are numbers that are divisible only by themselves and 1. key sets, you could then distribute public keys widely, The numbers 1, 2, 3, 5, 7,11,13, and 17 are primes. The by publishing them. If I wanted to send you a message, number 15 is not prime, because it can be broken apart I would go to a directory where I would look up your into prime “factors” of 3 and 5. What is interesting public key. I would then use that key to encrypt the about primes and factors from an encryption point of message and send it to you, Since you would be the view is that while it is very easy to multiply two large only person with the corresponding private key, only prime numbers to create their product, it is extremely you could decrypt and read the message. time consuming, given the product, to figure out the

22 Journal | November/December 2000 original primes. This fact became a critical component of sender’s private key—presumably the sender. For com- the RSA algorithm. munications that are both signed and secure, the mes- The RSA encryption scheme multiplies two very sages are doubly encrypted. Going back to our example, large prime numbers to create an even larger number, Joe would first encrypt the message with his own pri- which is then used as the public key to the encryption vate key—“signing” it—so that Kathy can be sure that scheme. Constructing the private key depends on the message is from Joe. Then Joe would encrypt the knowing the two prime factors. If you pick numbers message again, this time using Kathy’s public key, so that are sufficiently large, millions of computers work- that he can send it and be sure that only Kathy can read ing together for hundreds of years will not be able to re- it. When Kathy receives the message she first uses her cover the primes. private key to unlock the outer layer of protection and Suppose that Joe wants to submit a sealed bid on then uses Joe’s public key to establish that the message property that Kathy is selling. Ed would like to eaves- was really signed by Joe. drop on Joe’s bid so that he could outbid him while still Where do all of these public and private keys come spending as little as possible. Kathy has published her from, and who keeps track of them? It is possible to do public key — an enormously large number — for use by all of this encrypting and signing without any central all bidders. Joe uses Kathy’s public key to encrypt his authority, which is the approach taken by a program bid. Once he has completed the encryption, there is no known as “Pretty Good Privacy” or PGP. (For free ver- one, including Joe himself, who can read the encrypted sions of PGP see www.pgpi.org; for commercial ver- message without knowing the prime factors of the pub- sions see www.pgp.com.) In the PGP model, each com- lic key. Because finding the prime factors by trial and puter user generates his or her own keys and is error is extremely time consuming, Ed is locked out of responsible for getting the public keys out to people the communication and only Kathy, who possesses the with whom he or she wants to do business. private key that expresses the factors, can read the bid. More commonly, however, businesses use a central But how does Kathy know that the bid really came “certificate authority” (CA) who generates the big from Joe? How does she know that this isn’t an artifi- prime numbers, issues the keys, keeps track of who has cially low bid submitted in Joe’s name by Ed? And, if them, and makes a directory of public keys available to she accepts the bid, how can she prove that Joe really anyone. Most common email packages are set up to au- made the offer, keeping him from repudiating the bid? tomatically make use of the keys issued by CAs such as In other words, how can all of this encryption be used to Verisign (www.verisign.com) both for purposes of creat- create a signature? ing signatures and for encrypting mail. The CA keeps The answer lies in the fact that the unique link up be- track of the certificates and is responsible for validating tween a private and a public key works in either direc- them. If you receive a signed document, the CA tells you tion. For purposes of secure communication, Joe uses who signed it. For the most commonly used classes of Kathy’s public key, which means that only Kathy can signatures, however, the CA will only validate that a unlock the message, since only Kathy has the matching particular signature is associated with a particular email private key. But suppose that Joe also has public/pri- address. Although this is useful, it is very different than vate key pair of his own. He can then use his own private asserting that a particular individual person did the key to encrypt a message (as opposed to using the re- signing. As explained in the main text of the article, ob- cipient’s public key). This encrypted message will be taining real certainty about the actual identity of a readable only if a receiver has Joe’s public key. Of course, sender depends on the same techniques as any other since Joe’s public key is published and freely available, identification process, ranging from passwords to per- that means that the message is available to anybody. sonal appearances. The advantages gained from having But, since only Joe has Joe’s private key, anyone de- a given degree of certainty about the identity of a signer crypting this message with Joe’s public key can be sure must be balanced against the costs of obtaining that de- that it was sent by someone with Joe’s private key—pre- gree of certainty. sumably Joe. If Joe tries to repudiate the message, deny- If you are interested in more information about digi- ing that he made the bid, he is in the difficult position of tal signatures and about encryption in general, The Code having to explain how and why someone else has his Book: The Evolution of Secrecy from Mary Queen of Scots to private key. Quantum Cryptography by Simon Singh (Doubleday, A digital signature, then, is asymmetric encryption 1999) provides a readable, entertaining history of cryp- used in reverse. The sender uses his or her private key tography and includes a more detailed description of to encrypt a message. Anyone with the sender’s public how the RSA algorithm works. key can read it, but such readers can be sure that the Bill Zoellick message really was sent by someone in possession of the

Journal | November/December 2000 23 Document Examination Detecting Forgeries Requires Analysis of Strokes and Pressures

BY R. JOSEPH JALBERT

n attorney reports that his client says, “I did not • Adequate standards of comparison. This may be sign that. That is not my signature.” The docu- from six to as many as possible. The more standards the Ament examiner’s job is to determine whether the better. It is best to have examples written before and signature is authentic. All cases are different and some after the date of the questioned signature. This helps to involve special considerations, but document examiners assess the variability of the writer. follow some basic approaches in formulating their opin- • The closer the standards are in time to the date of the ions. questioned writing the better. Miranda warnings and af- The majority of questioned handwriting cases re- fidavits normally contain signatures and initials written quire a detailed study using a magnifier or microscope. within minutes or hours apart. In such a case, good When people attempt to forge handwriting, they focus copies may be adequate to work with. Even though on the general appearance, letter formation, size, style originals are always preferred, time constraints may re- and slant of the writing. Handwriting consists, however, quire that a qualified opinion be given based on copies. of individualized strokes and pressures that are not ob- • The questioned and known writing should be of the vious to the naked eye. same style. Script is compared to script. Printing is com- When someone tries to copy another style of writing pared to printing. The same wording is also preferable. two difficult things must be done simultaneously. First, • Examination of originals is preferred, especially the the forger must alter her/his own way of writing. Sec- original of the questioned document. Fax and copy ma- ond, the forger must adopt all the writing habits of the chines do not accurately reproduce the depth of line or writer being imitated. Some forgers copy a signature line value. Depth of line is the weight or heaviness given over an indirect light source, but most try to simulate to a stroke. Line value is the fluidness and width of the the writing after practice indicates that the signature line. Lines tend to be thicker on downstrokes and lighter “looks close.” on upstrokes. Another advantage of originals is that Normal writing is done automatically. We do not they can eliminate the possibility of a cut-and-paste sig- think of how we write letters but the forger does. Con- nature. Often examiners will qualify opinions of faxed sequently, the natural flow of the pen in a simulated copies with subject to review of the original. However, forgery becomes halting and pressures vary greatly. sometimes, examiners will be able to give positive opin- This can be seen under a magnifier or microscope. Also, ions on copies of standards and questioned writing the connecting strokes and shapes of letters most often when they are written within minutes or hours of each do not exhibit the same class as those found in the orig- another. inal writing. The altering of shape and wavering strokes The sources of original writings are numerous: with patching not found in the original writing are sus- checks, wills, deeds, leases, criminal records, school pa- picious in the questioned writing.

Document Procedure R. JOSEPH JALBERT resides in Rome, To reach an opinion, the document examiner must N.Y., and is in private practice as a have adequate known samples of writing to compare to document examiner. (E-mail at the questioned writing. The quality and quantity of the [email protected]) He is a graduate known samples (referred to as exemplars or standards of Lowell Technological Institute and of comparison) that are available will determine former president of the upstate New York chapter of the International As- whether a positive opinion can be reached. sociation for Identification. The basic requirements for handwriting identifica- tion are:

24 Journal | November/December 2000 pers, drivers licenses, discharge papers, medical papers, cases that depend on ink, paper or typewriter identifi- employment applications and legal documents. cation. Some graphologists who also work as document Request writing samples are normally taken only examiners and do not have the ink, paper or typewriter when comparable exemplars are not available. Request training background know their limits and refer such writing is not as good as non-request writing because cases to document examiners with a speciality in that the writer may attempt to change her/his writing. area. The FBI, for example, has specialists it routinely Taking request writing is best done under direction consults on difficult typewriter cases. On the other of a document examiner. The examiner can then quickly hand, graphologists can profile writers within degrees determine whether the person is attempting to change of certainty. Document examiners without the grapho- her/his writing. One method to determine whether the logical background cannot. client is attempting to change her/his handwriting is to Each time a document examiner testifies in court, have the client write a statement and sign it on one he/she must requalify as an expert and be subject to ex- blank piece of paper. Take that paper away and have the amination under voir dire. This is because document ex- individual repeat the writing. After three or four such aminers are not licensed as attorneys or doctors are. The samples, it is possible to compare the writings side-by- call for document examination work is not great enough side for obvious differences in size, slant and formation to warrant a college to offer an undergraduate or grad- of both capital and lowercase letters. Attorneys are ad- uate degree in document examination. George Washing- vised to tell their clients not to attempt to change their ton University, Washington, D.C., did offer a degree in writing. An attempt at alteration would be very suspi- document examination about 15 years ago but discon- cious to a judge and jury. tinued it due to lack of demand. Once, in a visit to a jail to obtain a writing sample, the man signed several sheets with quick and fluid strokes. There was no hesitation in his signature. Yet, at trial, the document bearing his signature and held by the district attorney did show wavering and patch strokes. My opinion was that it was not his. Ultimately it was shown that his brother had forged the man’s name. Felt marker pens are not recommended for legal doc- uments. The felt material does not show pressure pat- terns and is the easiest type of writing to forge. Black or blue ink ball point pens are recommended in signing legal documents. Most of the time, given adequate standards of com- parison and an original questioned document, docu- ment examiners can give definite opinions. The FBI and other government laboratories give lev- els of opinions. The highest opinion will be a “positive identification.” From there the descending order of cer- tainty of an opinion are “highly probable,” “probable,” “indications,” and “inconclusive.” Background of Document Examiners Many document examiners have worked for police departments and been trained through government document programs. The CIA and FBI are known to have excellent training programs. Others have studied handwriting analysis (graphology or graphoanalysis) to acquire the eye training needed to identify differences in handwriting and then acquired speciality training in document examination through other questioned docu- ment organizations or certified document examiners. Document examiners differ in what they can deter- mine from writing. Those trained in ink analysis, paper identification and typewriter identification excel in

Journal | November/December 2000 25 Internet Web Sites Offer Access To Less Expensive Case Law and Materials Not Offered Commercially

BY WILLIAM H. MANZ

he availability of online legal information has in- the first quarter of 1999. Court of Appeals opinions are creased significantly in recent years. For those offered by Cornell’s Legal Information Institute (LII) be- Tseeking free or less expensive alternatives to pay ginning with 1990, at Findlaw.com starting with 1992, services, numerous Internet Web sites offer possible op- and at Lexis One since 1996. The other sites offering tions and many materials that are not offered commer- Court of Appeals opinions are intended to provide ac- cially cess only to recent opinions. The Court of Appeals’ own The two giants in the field, LEXIS and WESTLAW, now site has cases for the current year, and Law.com, the receive competition on a national level from services New York Law Publishing Web site, has a six-month such as Loislaw, Versuslaw, Quicklaw America, and the archive of recent decisions. The New York Law Report- National Law Library, as well as local alternatives such ing Bureau site keeps new opinions online until one as Montlaw in Montana and Code Co in Utah. month after they have been released on the quarterly National specialty services such as State Net, State updates to New York Official Reports on LawDesk. Capital Universe, and RegAlert provide material in the None of the free sites can match the commercial ser- legislative and regulatory area. Different branches of vices in search devices. Cornell’s LII offers the most re- state governments also offer various alternatives. search aids, providing a topical index, party name list- Most states, including New York, now provide judi- ings, keyword searching and case summaries. cial opinions, statutes, bills, attorney general opinions, Except for Jurisline.com, Internet offerings for those and various other material free online. Retrospective seeking opinions from the lower New York State courts coverage varies widely, searching mechanisms tend to are very limited. Lexis One coverage starts with 1996. be simple, and some materials are accompanied by the Law.com has a six-month archive of opinions from all caveat that they are for informational purposes only and the Appellate Divisions and the Supreme Courts of the an official print version should be consulted. Bronx, Kings, Queens, Richmond, Nassau, Suffolk, and This article surveys the availability of selected major Westchester. The Court of Claims Web site has opinions New York legal materials on the new Internet Web sites beginning with March 2000, with plans to extend retro- and compares the services offered to those provided by spective coverage back to 1996. The Court System site the major commercial services, and in some cases, to has now added recent decisions from the Fourth De- those found in traditional print form. partment, the Supreme Courts of Nassau and Suffolk, the New York County Commercial Division, and New York State Courts Westchester County Family Court. The Housing Court Court of Appeals decisions have long been available on the commercial databases. In fact, LEXIS and WESTLAW WILLIAM H. MANZ is the senior re- both have recently extended their coverage back to the search librarian at St. John’s Univer- inception of the Court in 1847. Although the databases sity School of Law. A graduate of Holy of their smaller competitors do not match this, they all Cross College, he received a master’s still provide many decades of case law. Loislaw cover- degree in history from Northwestern age starts with 1924, VersusLaw and Quicklaw America University and a J.D. degree from St. with 1955, and the National Law Library with 1951. John’s University School of Law. This By comparison, free Web sites providing Court of Ap- article is adapted from the forthcom- peals opinions offer a far smaller range of years.1 The ing 2000 edition of Guide to Legislative and Administrative Materials, to be published by William most extensive is Jurisline.com, which offers decisions S. Hein & Co., which covers all 50 states, the District of from both the Court of Appeals and the lower courts Columbia, and the commonwealths and territories. starting with the early 1900s and currently ending with

26 Journal | November/December 2000 Web site includes summaries of Housing Court cases Senate Document Rooms, and a subscription service is published in the New York Law Journal since 1996. In con- offered by Hamilton Printing, the publisher of the Leg- trast LEXIS and WESTLAW coverage of lower New York islative Digest. Older bills, dating from 1830, are located courts now extends to the entire nineteenth century, and at the Law/Social Sciences section of the State Library. Loislaw offers Appellate Division opinions since 1924, Online access to bill text has been traditionally pro- and cases from Miscellaneous Reports since 1926. vided by LEXIS, WESTLAW, and the Legislative Retrieval System which offer both current bills and older legisla- Federal Courts in New York tion dating from the early 1990s. At present, the legisla- Second Circuit opinions are well covered by the com- tive Web site, and the individual Assembly and Senate mercial services. LEXIS has decisions since 1912, and sites4 do not match the commercial services, or the cov- WESTLAW since 1891, Loislaw since 1971, VersusLaw and erage offered by the legislative Web sites of many other Quicklaw America since 1930, and the National Law Li- states, offering only bills from the current legislative ses- brary since 1924. In contrast, free Internet access as pro- sion, with no retrospective coverage currently planned.5 vided by Findlaw.com, Touro Law School, and Pace Similarly, computer access to bill tracking services Law School date only from 1995. As with New York has been provided only through LEXIS, WESTLAW and the opinions, Lexis One begins with 1996. Jurisline.com has Legislative Retrieval System. All three New York leg- a backfile of Second Circuit and district opinions dating islative sites now also offer bill tracking. Along with the from the 1910s, but coverage ends with 1998. text of the bill, they provide a status report, which in- District and Bankruptcy court coverage is far less cludes a bill chronology. comprehensive. The Eastern District Web site contains Enacted Legislation Hardcopy of enrolled bills is selected opinions since November 1, 1999, beginning available from Miscellaneous Records, Department of with the well-publicized Brooklyn Institute of Arts and State for a per-page fee. Final version of bills as sent to Sciences v. City of New York.2 The Southern District Web the governor are provided by the Senate and Assembly site also has selected recent rulings of participating Document Rooms, and a subscription as part of session judges. The Northern District Bankruptcy Court Web law service is available through Hamilton Printing. site posts selected recent decisions. The Western District New enactments have also been traditionally published Bankruptcy Court Web site has selected decisions from in McKinney’s Session Law News (West Group) and Ad- Judge Kaplan since 1992, both published and unpub- vance Legislative Service for the New York Consolidated Laws lished decisions from Judge Ninfo since 1992, and se- Service (LEXIS Publishing), both available as part of a lected decisions of Judge Bucki since 1990. code subscription service. Statutes and Regulations As with bills, online access is provided to subscribers The traditional online versions of the Consolidated of LEXIS, WESTLAW and the Legislative Retrieval Sys- Laws and Unconsolidated Laws offered by LEXIS, WEST- tem. The free Internet alternatives, the Assembly Web LAW, and the Legislative Retrieval System have been site, and the legislative Web site all limit their cover- joined by Loislaw.com, Quicklaw America, National age to the current session.6 Law Library, and Jurisline.com. Free Internet access to Legislative History Sources of New York legislative both the unannotated Consolidated and Unconsoli- history are sparse and may be hard to obtain. The most dated Laws, periodically updated, is available at the As- likely sources of legislative intent for the typical enact- sembly Web site, and at Jurisline.com with quarterly up- ment, and those most often cited by the courts, are Gov- dates. Online access to older versions of the statutes is ernor’s, departmental, or sponsor’s memoranda as still limited to LEXIS (since 1992) and WESTLAW (for 1987, reprinted in New York Legislative Annual, published by 1989-97, 1999-2000). the New York Legislative Service, McKinney’s Session There is no comprehensive free Internet access to the Laws7 since 1951, and CLS Session Laws,8 or as found New York Code of Rules and Regulations, although se- along with correspondence in the Governor’s bill jackets. lected sections appear on the Web sites of various state 3 Older memoranda, dating from 1983, are located at agencies. Online access to the entire Code is still only the State Library, and memoranda for the current ses- by subscription through LEXIS, WESTLAW, Loislaw.com, sion available from Assembly Public Information Office and the Legislative Retrieval System. Regulation track- and Senate Office of Legislative Assistance and Services. ing is also provided by both LEXIS and WESTLAW, as well Online line access to these materials has been limited as by RegAlert, an Internet-based subscription service. to documents since 1995 provided by the Legislative Re- Legislative Materials trieval System, and to those memoranda printed in Bills Text and Bill Tracking Hardcopy versions of McKinney’s Session Laws and provided by WESTLAW. This current bills are available free from the Assembly and is now supplemented by memoranda accompanying the

Journal | November/December 2000 27 Addresses of Internet Sites Materials noted in this article may currently be found at the following Internet addresses: New York Court Opinions Eastern District /ctapps/decision.htm> Eastern District Bankruptcy .ny.us/decisions.htm> New York State Courts Findlaw.com /localrul.htm> Housing Court Northern District Bankruptcy .uscourts.gov/lbr/95lbrmenu.html> Legal Information Institute .gov/rules/Rules.htm> New York Law Reporting Bureau .uscourts.gov/pdf/revlocalrul.pdf> Unified Court System Western District Eastern District Court .uscourts.gov/localrules.htm> Findlaw.com Departments and Agencies Jurisline.com Attorney General LexisOne Committee on Open Government /albdecmenu.html> Department of Education /legal/us-legal/judiciary/second-circuit.html> Department of Tax and Finance /Advisor_Opinions/AO_tax_types.htm> Western District Court Division of Human Rights .html> Ethics Commission .nywb.uscourts.gov/decisions.htm> Insurance Department Statutes Office of State Review /sro/dec.htm> New York State Assembly .perb.state.ny.us/Dec.asp> Legislative Materials Public Service Commission New York State Assembly (bills, memoranda, and reports) Bar Associations New York State Legislature (chapter laws, ap- proval messages, and veto messages) New York County Lawyers Association .ny.us> (bills, memoranda, and reports) New York State Bar Association Combined Courts

28 Journal | November/December 2000 bills for the current session and posted on the Assembly Free online access is now provided by the Attorney and legislative Web sites. The legislative site also pro- General’s Web site for opinions issued since 1995.11 This, vides Governor’s approval messages and veto messages however, does not come close to the coverage offered by for the current session. LEXIS (since February 1976) and WESTLAW (since 1977). Other Legislative Materials Internet access to other Executive Orders legislative materials is still extremely limited.9 The As- sembly Web site provides Legislative Reports since Unlike many other states, New York currently pro- vides no Internet access to Governor’s executive or- 1995, Ways and Means Committee Reports since 1996, 12 and Program and Counsel Committee Reports since ders. Access is still limited to the traditional sources, 1997. Selected reports, issued since February 1993, are including the Governor’s Press Office, the Legislative Di- also now been available at the Senate Web site. gest, and CLS Session Laws. Not available online are such materials as Governor’s Orders have also been published since 1960 in 9 Offi- Bill Jackets and the reports of the Law Revision Com- cial Compilation of Codes, Rules and Regulations of the mission. Likewise, committee hearings, debate tran- State of New York (N.Y.C.R.R.) Part 1. scripts, Assembly and Senate journals for various years Administrative Materials are variously available in print and/or microform, but Various Web sites have expanded access to state ad- only through sources at the Legislature or at selected li- ministrative rulings, decisions, and orders. Coverage braries. varies, and as with case law and other materials, retro- Rules of Court spective coverage usually does not match that provided The standard sources of court rules, the annual Mc- by the commercial online services. Kinney’s New York Rules of Court: State and Federal from The Department of Tax and Finance Web site makes West Group, New York Court Rules by LEXIS Publishing, available advisory opinions since 1993. Much more ex- and their LEXIS and WESTLAW versions have now been tensive coverage of its materials is available on LEXIS augmented by several different free Web sites.10 (advisory opinions, memoranda, and hearing determi- The New York Law Journal provides rules for both nations since 1978) and WESTLAW (memoranda since state and federal courts at its Web site. Those for New 1978 and opinions of counsel since 1960). York State courts are available at the state courts site, Similarly, the Public Service Commission Web site and recent amendments to state court rules are posted at now provides decisions since March 1995. This is ex- the Unified Court System site. Local rules for each of the ceeded by LEXIS coverage dating from 1984, and WEST- federal district courts are available at their individual LAW which offers full text decisions starting with 1974. Web sites. Rules for the bankruptcy courts for the This disparity in coverage also occurs in the case of the Northern, Southern, and Western District Bankruptcy Comptroller’s decisions which are covered since 1979 Courts are also available on the individual sites. Eastern on LEXIS, and since 1977 on WESTLAW, but only since District Bankruptcy rules are included on Law.com, the 1995 on the Comptroller’s Web site. New York Law Publishing Web site. A more marked difference in the nature of coverage Attorney General Opinions exists for decisions of the Public Employee Relations Attorney General opinions have long been available Board. These are available in full text on LEXIS since in print form, and since 1990 have been published in a March 1986 and WESTLAW since 1982. In contrast, the loose-leaf format by Lenz & Riecker as Opinions of the Board’s Web site provides only summaries of recent de- New York State Attorney General. cisions.

Journal | November/December 2000 29 There are also several types of materials where LEXIS since December 1979, the Association of the Bar of the and WESTLAW still provide the only online access. These City of New York since 1986. include Banking Department Opinions (LEXIS since Conclusion 1990); Commission on Judicial Conduct Disciplinary Coverage of New York legal materials offered on the Opinions (WESTLAW since 1978); Department of Environ- Internet does not currently provide a comprehensive al- mental Conservation Decisions and Orders (WESTLAW since 1970); Freshwater Wetlands Appeals Board Deci- ternative to the commercial services. Retrospective cov- erage is insufficiently extensive, and the search engines sions and Orders (WESTLAW since 1976); Tax Appeals Tri- on most sites are too simple to allow the Internet to bunal Decisions (LEXIS since June 1983); and Workers’ function as a legal research tool in the traditional sense. Compensation Board Decisions (LEXIS since 1989 and These limitations not withstanding, the currently avail- WESTLAW since 1985). There is, however, one instance where Web site coverage is comparable to that of the pre- able free Web sites do offer a valuable array of law-re- mium services. Ethics Commission Advisory Opinions, lated information, some not available electronically else- where. They also can serve as an effective and useful available on LEXIS since 1991, and WESTLAW since 1988, are also posted on the Commission Web site since 1988. free document retrieval service for selected materials that were formerly available only through online sub- scription services, in print publications, or by request The currently available free Web from the Legislature or relevant departments, agencies, and libraries. sites offer a valuable array of 1. Internet availability of Court of Appeals opinions com- law-related information, some not pares favorably to that of the highest courts in larger or nearby states such as Illinois, Michigan, New Jersey, available electronically elsewhere. Ohio, and Pennsylvania where coverage typically begins in the mid-1990s. In one case Internet availability is identical to that 2. 64 F. Supp.2d 184 (E.D.N.Y. 1999). provided in print. The State Education Department Of- 3. Other major states which do not currently provide free electronic versions of their entire administrative codes in- fice of State Review Web site begins its coverage of de- clude California, Florida, Illinois, and New Jersey. cisions on its site with 1991, as does its loose-leaf title, 4. Other information available at the Legislative, Assembly Decisions of the State Review Officer. The Education De- and Senate Web sites include resolutions, floor calendars, partment also provides Web access to Commissioner of and committee and hearing schedules. Education decisions dating from July 1991. 5. For example, California provides bills since 1993, Con- Finally several Web sites are offering materials not necticut since 1988, New Jersey since 1996, and Pennsyl- vania since 1985. published in hardcopy or available on commercial sites. 6. Many other states provide retrospective coverage. Cali- These include Committee on Open Government Advi- fornia posts enacted legislation since 1993, Connecticut sory Opinions since 1993 included on the Committee since 1988, Illinois and Michigan since 1997, New Jersey Web site; Division of Human Rights Orders at the Divi- since 1996, and Ohio since 1995. sion Web site since 1999; and Insurance Department In- 7. Contain selected memoranda since 1951. formal Opinions at the Department Web site since 2000. 8. Include Governor’s memoranda only. 9. In contrast, New Jersey offers online access to the text of Professional Responsibility Opinions legislative hearings since 1996, and copies of New Jersey Coverage of bar association professional responsibil- Law Revision Commission reports since 1987. ity opinions is a feature of several Web sites. The New 10. In addition to official court rules these sites may also pro- York State Bar Association site now has the full text of vide individual judge’s rules, text of general order, and opinions issued since September 1991. The New York forms. There also may be links to the Public Access to Court Electronic Records (PACER), a dial-up system County Lawyers Association site includes opinion sum- which provides subscribers with access to electronic court maries since October 1970 and full text since July 1996, records, notably dockets. and the Association of the Bar of the City of New York 11. Arkansas provides attorney general opinions since 1991, site offers an opinion index starting with 1986. Connecticut since 1990, Delaware since 1995, Georgia since 1994, Illinois since 1995, Maryland since 1994, Vir- As with most other types of legal information avail- ginia and Washington since 1996. Some states such as able free on the Web, the materials on these sites do not California and Colorado have databases dating from the match the retrospective coverage offered by LEXIS, 1980s. Oklahoma’s coverage is the most extensive, includ- which has opinions from the New York State Bar Asso- ing published opinions since 1948. ciation since 1991, and WESTLAW, whose ethics database 12. Nearby states posting executive orders on the Internet in- clude Connecticut since 1995, New Jersey since 1990, and includes opinions from the New York State Bar Associa- Pennsylvania since 1970. tion since 1977, New York County Lawyers Association

30 Journal | November/December 2000 Writing Clinic The Keys to Clear Writing Convey Thoughts Gracefully

BY SUSAN MCCLOSKEY

he words we first commit to the page or screen sel- The pronoun’s great utility depends on its one-to-one dom say what we want them to say. They render correspondence with the single noun it replaces. As Tour meaning approximately, sometimes grace- soon as a writer tries to make a pronoun stand in for an lessly. To make them express our thoughts clearly, we entire concept, trouble ensues. The demonstrative pro- need to prod them gently or give them a vigorous noun this, for instance, contributes more than its share shove. to obscure legal writing. In the passage that follows, try The master key to clear writing is successful revising, to determine what the writer means by this: the work of taking a second or third look at a draft as if The school board took administrative action against someone else had written it. Successful revision de- teachers who absented themselves on Veterans Day. pends on a writer’s alertness to the common obstacles to This was a violation of the collective bargaining agree- clarity. This essay is about those obstacles and about the ment. steps you can take to turn clear thoughts into clear The singular This that opens the second sentence words, sentences, and paragraphs. could replace any singular noun in the first sentence: Ambiguous Words school board, action, or Veterans Day. Among these possi- Ambiguous words are the enemy of clear writing. bilities, action is the antecedent readers would probably Legal writers are sometimes exempt from this general choose, because the writer has thoughtlessly left them to rule, although less often than many would like to think. their own devices. But it is also possible that the writer Unable to anticipate every contingency, a lawyer draft- means This to stand in for the concept represented by ing an agreement may build some wiggle room into key teachers who absented themselves. The grammatical prob- provisions. A litigator may de-emphasize a client’s re- lem here is that absented is a verb, not a noun, so a pro- sponsibility by changing the dangerously candid My noun can’t replace it. The semantic problem is the unre- client made a terrible mess of things to the deliberately pas- solved ambiguity: Was it the school board’s action or the sive Mistakes were made. teachers’ absence that violated the collective bargaining agreement? There is simply no way of knowing. Read- Such purposeful ambiguity seldom produces the baf- ers may guess correctly, but good writers don’t leave fling, knotted legal prose that makes readers despair. their readers to guess. Clarity more often falls victim to ambiguity that no writer intends. Its sources are often inconspicuous— You can solve the problem here by pinning down the pronouns without antecedents, verbs that indicate ac- meaning of This. Once you decide what you mean to tions without actors, harmless-looking modifiers. You say, all you need is a clarifying noun after the ambigu- can spot them only by looking for them and repairing ous pronoun: the damage before sending a document into the world. Pronouns cause ambiguity when writers forget the SUSAN MCCLOSKEY is the president of McCloskey Writ- pronoun’s job. The function of any pronoun is to take ing Consultants in Verbank, N.Y. It offers writing semi- the place of a noun. If we had only nouns at our expres- nars and writing and editorial services to law firms and sive disposal, we would have to write sentences like this corporate law departments. She received her Ph.D. from one: The Defendant claimed that the Defendant could Princeton University and was formerly a tenured profes- not see the Plaintiff’s car entering the intersection be- sor of English at Vassar College. Her web site is www.su- sanmccloskey.com and she may be reached via cause the Defendant’s view of the Plaintiff’s car was e-mail using [email protected]. blocked by a UPS truck. With pronouns to serve us, we can write instead, The Defendant claimed that she could not see the Plaintiff’s car entering the intersection be- cause her view of it was blocked by a UPS truck.

Journal | November/December 2000 31 The school board took administrative action against cut without misrepresenting the facts, that is the appro- teachers who absented themselves on Veterans Day. priate pronoun. It restricts the meaning of foreign corpo- This action [or this absence] was a violation of the collec- rations to the appropriate class. tive bargaining agreement. Passive verbs, a major cause of lost clarity, appear on Whenever your draft features This without an ac- the top-ten list of baffling words, not because they are companying noun to clarify its meaning, supply the ungrammatical or even stylistically graceless, but be- noun in revision. cause they are uninformative. To deprive a reader of es- The relative pronoun which causes the same problem sential information is the ready and easy way to banish in different form. In the sentence, My file on this matter is clarity from any statement. Consider this sentence: Out- not complete, which means that side counsel should be hired, and you must submit any records a thorough investigation of the supporting your claim, the pro- Passive verbs become active FDIC’s actions should be per- noun which refers neither to as soon as the writer specifies formed. The reader of such a file nor to matter. Rather, it sentence has at least two refers to the incompleteness an actor and places him or her questions, both of which of the file, the entire concept in front of the verb. spring from the passive represented by the opening verbs, should be hired and clause. A pronoun asked to should be performed. Who is carry such a burden of meaning will collapse under the supposed to perform these actions? In-house counsel? load, because it is capable of referring only to a single The company’s CEO? The next-door neighbor? The pas- word. Here, the writer needs to clarify what is meant by sive verbs allow the writer to remain stonily silent on making explicit the meaning of which: My file on this mat- this score. And what is the connection between the hir- ter is incomplete; its incompleteness means that you should ing of outside counsel and the investigating of the submit any records supporting your claim. This revision FDIC’s actions? Are these actions unrelated, or is out- clarifies meaning; unfortunately, it also sounds a little side counsel supposed to do the investigating? A sen- strained. More direct phrasing solves the problem: The tence that raises more questions than it answers aban- incompleteness of my file means that you should submit any dons all claim to clarity and leaves the reader frustrated. records supporting your claim, or, more simply, Send me the Passive verbs become active as soon as the writer records supporting your claim so that I can complete the file specifies an actor and places him or her in front of the on this matter. While this may need only a companion verb: Fred Evans should hire outside counsel to investigate noun to clarify its meaning, which may require more the FDIC’s actions, or Fred Evans should hire outside coun- thoroughgoing revision to eliminate ambiguity. sel, and Barbara McDonough should investigate the FDIC’s Other pronouns—that and which—cause problems of actions. The active verbs, should hire and should investi- clarity when which appears where that belongs. Both gate, pull the actors back into the sentence, replacing pronouns introduce relative clauses—that is, clauses murk with clarity. When you know who did the deed meant to define or elaborate the meaning of the noun to that the verb describes, and when you lack a compelling which they relate. There the similarity ends. A which reason to keep that knowledge to yourself, use the ac- clause provides incidental information about the noun it tive voice. refers to; a that clause offers defining information. A One of our language’s trickiest modifiers—the word which clause could be excised from the sentence without only—is a potent enemy of clarity. We tend in speech to altering meaning; a that clause could not be. A which misplace it automatically, without much damage: I only clause is usually set off by a comma or a pair of commas; had enough change for one subway pass instead of I had a that clause is seldom punctuated at all. enough change for only one subway pass. But the standards You can test these distinctions by deciding which of clarity are higher in writing than in speaking, in part pronoun belongs in the blank in this sentence: Foreign because the writer isn’t present to straighten out a corporations _____ have received certificates of authority reader’s confusion. In writing, the misplacement of only enjoy the privileges of domestic corporations. Out of bad can lead a writer to write something far different from habit, many writers would fill the blank with which and what he or she intended. leave the clause unpunctuated. But when you apply the Consider this sentence: He spoke ill of her on the witness “cut-the-clause” test, falsehood ensues. It is simply not stand. Place only before each word in turn and see what true that foreign corporations enjoy the privileges of do- happens to the sentence’s meaning: mestic ones. Only some do, those that have received cer- 1. Only he spoke ill of her on the witness stand [every- tificates of authority. Because the relative clause can’t be one else spoke well of her]

32 Journal | November/December 2000 2. He only spoke ill of her on the witness stand [he subrogation survives the enactment of Connecticut General didn’t compound ill speech with ill actions] Statute § 52-225c. By the time it touched down on the 3. He spoke only ill of her on the witness stand [he page of an internal memorandum, stretched out and never once said anything pleasant] crammed full, it looked like this: 4. He spoke ill only of her on the witness stand [he Based on the language of Conn. Gen. Stat. § 52-225c, its didn’t also speak ill of others] legislative history, and its construction and interpreta- 5. He spoke ill of only her on the witness stand [same tion with other Connecticut statutes as well as the com- as number 4] mon law, a good argument can be made that the statute and 6. He spoke ill of her only on the witness stand [he does not affect an insurer’s right to subrogation that right has survived the enactment of that statute, al- spoke well of her elsewhere] though a decision, Sargeant v. International Union of Op- 7. He spoke ill of her on only the witness stand [awk- erating Engineers, Local Union 478 Health Benefits and In- ward, but the same as number 6] surance Fund, 746 F. Supp. 241 (D. Conn. 1990), in which 8. He spoke ill of her on the only witness stand [there the Court implied, in dicta, that an insurer’s right to was only one stand] subrogation may not have survived the enactment of the statute, may undermine this argument. 9. He spoke ill of her on the witness only stand [only a witness was allowed on the stand] This sentence violates two cardinal principles of clear 10. He spoke ill of her on the witness stand only [same construction. First, it is far too long. The meaning would as number 6] be clearer if the writer did nothing more than divide the Here, seven distinct meanings spring from the place- sentence at the italicized conjunctions and substitute ment of only; the writer intended only one of them. To However for although: avoid the problem, take time in revision to ensure that Based on the language of Conn. Gen. Stat. § 52-225c, its only is where it belongs—usually, right before the word legislative history, and its construction and interpreta- or phrase it modifies. tion with other Connecticut statutes as well as the com- mon law, a good argument can be made that the statute Unclear Sentences does not affect an insurer’s right to subrogation. That Legal writers sometimes treat a sentence as if it were right has survived the enactment of that statute. How- a plastic grocery bag, stuffing it with the verbal coun- ever, a decision, Sargeant v. International Union of Operat- ing Engineers, Local Union 478 Health Benefits and Insur- terparts of mayonnaise, bananas, and furniture polish to ance Fund, 746 F. Supp. 241 (D. Conn. 1990), in which avoid an extra trip from the car to the pantry. But sen- the Court implied, in dicta, that an insurer’s right to tences are less sturdy and capacious than grocery bags. subrogation may not have survived the enactment of Stuff one, and its seams will split. Wedge qualifying the statute, may undermine this argument. phrases and clauses in the space between subject and In a world of page-limits and word-counts, remem- verb, and the sentence’s contents will become a disor- ber that no one has prescribed the number of sentences derly jumble. a document can contain. Consider what happened to a thought that probably took shape in the writer’s mind as The insurer’s right to

Journal | November/December 2000 33 makes the evidence her subject and makes the passive Divide most long sentences into verb active, her point and the entire passage become clearer: shorter units, and structure each The language of Conn. Gen. Stat. § 52-225c, its legisla- sentence so that its core elements tive history, and its construction and interpretation with other Connecticut statutes and the common law (especially its subject and verb) indicate that the statute does not affect an insurer’s right to subrogation. That right survived the enactment are close together. of the statute. A 1990 decision, however, may under- mine this argument. In Sargeant v. International Union of Operating Engineers, Local Union 478 Health Benefits and A second principle of clear sentence construction Insurance Fund, 746 F. Supp. 241 (D. Conn. 1990), the would clarify the last sentence in the passage above, Court implied in dicta that an insurer’s right to subro- gation may not have survived the enactment of the which suffers from a badly disrupted core. The core of statute. any sentence includes the grammatical elements that When you want your sentences to be clear, direct, convey its essential meaning. He won is a complete sen- and easily intelligible—a goal always worth aiming tence, for instance; its verb specifies an action (won), and for—take these two steps in revision: Divide most long its subject (he) specifies the performer of the action. In sentences into shorter units, and structure each sentence any sentence, these two elements act as the nucleus so that its core elements (especially its subject and verb) around which a careful writer arranges the remaining are close together. elements. The closer the subject and verb, the clearer the sentence. Sentences more complex than He won include Unclear Paragraphs a direct and sometimes an indirect object. Together, Four principles govern paragraph development, and these three or four elements indicate who did what (He all contribute powerfully to clarity. The first pertains to won the case) or who did what to or for whom (He won the paragraph’s function, the second and third to the the case for his client). sentences it contains, and the fourth to the connection In the unrevised sentence above, the verb, may under- between one paragraph and the next. Each contributes mine, and the direct object, this argument, pass the test of to clarity; together, they reinforce the logical power of a proximity. But the subject, decision, is separated from the legal analysis or argument. verb by an appositive phrase, two relative clauses, and The first principle is that a paragraph develops a sin- a prepositional phrase. The writer’s meaning becomes gle point. Paragraphs that try to develop multiple points easier to grasp as soon as she reduces that distance: suffer from either vagueness or excessive length. In ei- A 1990 decision may undermine this argument. ther case, they frustrate the reader’s efforts to follow the logical progress of the writer’s analysis or argument. She can then place the intervening material in a new Long, poorly defined paragraphs also deprive the sentence of its own: reader of the visual cue of a paragraph break, which sig- In Sargeant v. International Union of Operating Engineers, nals that the writer has finished considering one aspect Local Union 478 Health Benefits and Insurance Fund, 746 F. of the topic and has taken up another. Supp. 241 (D. Conn. 1990), the Court implied in dicta The second and third principles are closely related. that an insurer’s right to subrogation may not have sur- The second is that the opening sentence usually defines vived the enactment of the statute. the paragraph’s focus, telling the reader what the para- The writer might apply the same clarifying principle graph is about. The reader should be able to review the to the first sentence of the passage. Here, moving the contents of a well-written document by rereading only subject and verb closer together involves the prior step the topic sentence of each paragraph. The third princi- of accurately identifying the sentence’s true subject. The ple is that the remaining sentences should develop the current subject, argument, is a mere place-holder. The topic sentence’s point. A careful writer often reinforces real subject is the evidence supporting the writer’s con- the logic of this development through words or phrases clusion that the insurer’s right to subrogation survives that link one sentence to the sentence before. Those most the statute’s enactment: the statute’s language, legisla- often and appropriately used by attorneys are conjunc- tive history, construction and interpretation, and the tive adverbs, such as furthermore and thus, or preposi- common law. The writer originally downplayed the im- tional phrases, such as in addition. portance of that evidence by subordinating it in the par- The fourth principle extends the idea of connection ticipial phrase beginning Based on. She also muffled the from consecutive sentences to consecutive paragraphs. core verb (could be made) by making it passive. Once she Sometimes the logical or narrative continuity between

34 Journal | November/December 2000 one paragraph and the next is so clear that no explicit intuit the connection between the first two topics, but link between them is necessary. But sometimes only the writer’s meaning is clearer as soon as that link be- transitional words, phrases, and clauses can make clear comes explicit: to the reader how paragraph B relates to paragraph A. The UCC states that express warranties by the seller are For instance, when one paragraph closes with a strong created by “any affirmation of fact or promise made by assertion and the next opens with the word However, the the seller to the buyer which relates to the goods and reader instantly grasps that the new paragraph will becomes part of the basis of the bargain.” To establish an qualify or challenge that assertion. A paragraph without express warranty, our client must prove that (1) the a strong transition may require the reader to leap from promise related to the goods, and (2) the promise be- one topic to another. Good writers remember that read- came part of the basis of the bargain. ers prefer to cross the bridges between paragraphs that How does the point of these two sentences—the good transitions create. client’s burden in light of the UCC—relate to the focus Confusion results when a writer overlooks even one of the third and fourth sentences, Sparks v. Stich? Here, of these four principles. A reader left to wander through even a nimble reader might balk at the intuitive leap the ill-constructed blocks of text without the writer’s guid- writer requires her to make. At the very least, the writer ance is soon lost and sooner exasperated. The following should give the case a paragraph of its own and relate it paragraph illustrates the problem: to the preceding paragraph through an effective transi- tion: The UCC states that express warranties by the seller are created by “any affirmation of fact or promise Case law further defines the elements of express war- made by the seller to the buyer which relates to the ranty, implying a degree of specificity in connection goods and becomes part of the basis of the bargain.” with the seller’s representation. In Sparks v. Stich, the Our client must prove that 1) the promise related to the plaintiff buyer sought to invoke an express warranty for goods, and 2) the promise became part of the basis of the sale of used farm equipment where the defendant the bargain. In Sparks v. Stich, the plaintiff buyer sought seller had stated that the equipment was in “good work- to invoke an express warranty for the sale of used farm ing” order. The court held that “this general expression equipment where the defendant seller had stated that [does] not warrant against all imperfections. . . .” the equipment was in “good working” order. The court held that “this general expression [does] not warrant Here, the new second paragraph retains the focus of against all imperfections. . . . This is particularly so in the first and extends it from the UCC to case law. Other view of the low cost of each item and its used condi- logical links, including transitional words and phrases tion.” (such as Second, Moreover, In addition) are also possible The writer’s neglect of the single-point-per-para- here, but all serve the purpose of alerting readers to the graph principle compromises the clarity of his analysis. logical connection between what they have just read The paragraph deals with three different topics: what and what they are about to read. the UCC says, what the client must prove, and what the These revisions move the original paragraph closer to court held in Sparks v. Stich. A resourceful reader might the goal of clarity. The writer can go the entire distance by stating the true focus of the first paragraph at its out-

Journal | November/December 2000 35 the form of gifts or grants from qualifying public or governmental sources. For example, if the foundation The best legal writers, such as has total gross receipts of $100,000 during the advance- ruling period, it is required to collect at least $33,334 Oliver Wendell Holmes, have the from qualifying public or governmental sources—that habit of exemplification. is, from individual donors and local, state, or federal agencies. By spelling out the foundation’s responsibility in ac- set. That focus is not merely what the UCC says, but the tual dollars and by specifying the meaning of qualifying bearing of the Code on the client’s actions: public or governmental sources, the second sentence re- states the meaning of the first in terms even a distracted The UCC specifies the circumstances under which our client or numbers-averse reader can grasp. But even a focused can prove that an express warranty exists. An express war- reader appreciates the way the example confirms that he ranty is created by “any affirmation of fact or promise has in fact understood the writer’s initial point. made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain.” Ac- The same clarity can be achieved by translating a cordingly, our client must prove that (1) the promise re- complex point into simpler terms. In the following pas- lated to the goods, and (2) the promise became part of sage from a land-use case, the first sentence is reason- the basis of the bargain. ably clear. The second makes it clearer still:

Case law further defines the elements of express war- The court concluded that if A holds property for public ranty, implying a degree of specificity in connection use and plans to develop that use only at some indefi- with the seller’s representation. . . . nite future date, it cannot prevent B from taking the property by eminent domain for an inconsistent public Such revisions at the paragraph level offer a writer use. In other words, at least in eminent-domain cases, greater opportunities for clarity than revision of words the tortoise doesn’t always beat the hare. and sentences alone can provide. In most legal docu- By wittily translating the abstract meaning of the first ments, the paragraph is the significant unit of thought, sentence, the second reinforces the writer’s point and the space in which a litigator sets forth a point in an ar- makes it memorable. gument or a transactional attorney defines a responsi- bility of a party to an agreement. The discipline of The best legal writers, such as Oliver Wendell checking your paragraphs to ensure that each has a Holmes, have the habit of exemplification. Holmes’s topic sentence, a cohesively developed single point, and mind seemed to oscillate naturally between abstract a strong link to the preceding paragraph can help you principles and the specific instances that made them lu- clarify a cloudy piece of writing and transform a clear minous. When he wanted to illustrate a limitation on piece into a compelling one. Well-constructed para- freedom of expression, for instance, he imagined a man graphs, in short, are keys not only to writing clearly but falsely shouting “fire!” in a crowded theater. To crystal- also to winning arguments and closing successful deals. lize the difference between intentional and uninten- tional harm, he observed that “even a dog distinguishes Clarifying Examples between being stumbled over and being kicked.”1 Both Even the most careful revision may sometimes leave examples ground the legal principle in daily experience, a writer short of the goal of clarity. Unambiguous an inexhaustible vein that any writer seeking a clarify- words, sentences of moderate length with intact cores, ing instance can easily mine. and paragraphs of tested soundness can do most, but The keys to clear writing described here turn the gen- not all, of the work that clarity requires. Legal principles eral injunctions “Be clear!” and “Revise!” into specific are necessarily abstract, and the analyses and argu- things you can look for in your words, sentences, and ments that spring from them can all too easily follow paragraphs when clarity is your goal. Add them to your suit. To counter this tendency, rely on two extraordinar- ring and use them. They will help you streamline the ily helpful words: for example. The best legal writers pro- process of revision, making it possible for you to rework vide examples with disciplined abandon. your documents fewer times. And you’ll achieve what The most common example converts an abstract every good legal writer aims for: a clear, successful statement into a concrete instance, as in this passage: result. A foundation meets the “public support” test if it nor- mally derives at least one-third of its gross receipts in 1. Oliver W. Holmes, The Common Law 3 (1881).

36 Journal | November/December 2000 EDITOR’S MAILBOX (snow and ice); Robles v. City of New 716 (1997) (debris on floor); Goldberg CONTINUED FROM PAGE 8 York, 255 A.D.2d 305, 679 N.Y.S.2d 340 v. Hoffenberg, 226 A.D.2d 424, 641 (2d Dep’t 1998) (snow and ice); Craw- N.Y.S.2d 57 (2d Dep’t 1996) (grease on and ice); Taylor v. New York City Transit ford v. MRI Broadway Rental, 254 a driveway); Espinal v. New York City Authority, 266 A.D.2d 384, 698 A.D.2d 68, 678 N.Y.S.2d 491 (1st Dep’t Housing Authority, 215 A.D.2d 281, N.Y.S.2d 52 (2d Dep’t 1999) (snow and 1998) (wet floor); Goodman v. 78 West 626 N.Y.S.2d 790 (1st Dep’t 1995) (de- ice); Hussein v. New York City Transit 47th Street Corp., 253 A.D.2d 384, 677 bris in stairwell) and Grillo v. New Authority, 266 A.D.2d 146, 699 N.Y.S.2d 116 (1st Dep’t 1998) (oil spill York City Transit Authority, 214 A.D.2d N.Y.S.2d 27 (1st Dep’t 1999) (wet on sidewalk); Baumgartner v. Pruden- 648, 625 N.Y.S.2d 293 (2d Dep’t), ap- floor); Madden v. Village of Tarrytown, tial Insurance Company of America, 251 peal denied, 87 N.Y.2d 801, 637 266 A.D.2d 358, 698 N.Y.S.2d 153 (2d A.D.2d 358, 674 N.Y.S.2d 84 (2d Dep’t N.Y.S.2d 688 (1995) (snow and ice). Dep’t 1999) (snow and ice); Davidson 1998) (snow and ice); Agbi v. York In- Further, the Court of Appeals has v. Hilton Hotels Corp., 266 A.D.2d 335, ternational Corp., 249 A.D.2d 430, 671 spoken four times—in Simmons, Piac- 698 N.Y.S.2d 171 (2d Dep’t 1999) N.Y.S.2d 319 (2d Dep’t 1998) (oil on quadio, Murphy, and Mercer—on the (snow and ice); Forma v. City of New floor); Durney v. New York City Transit issue of whether the recurrent condi- York, 266 A.D.2d 186, 697 N.Y.S.2d 678 Authority, 249 A.D.2d 213, 671 tion theory is a valid predicate upon (2d Dep’t 1999) (snow and ice); Brown N.Y.S.2d 262 (1st Dep’t 1998) (debris which to establish constructive notice v. City of New York, 265 A.D.2d 284, on stairs); Otero v. City of New York, in transitory-dangerous-condition 696 N.Y.S.2d 69 (2d Dep’t 1999) (snow 248 A.D.2d 689, 670 N.Y.S.2d 545 (2d cases and has explicitly ruled that the and ice); Hooghuis v. City of New York, Dep’t 1998) (snow and ice); Urena v. recurrent condition theory is no longer 264 A.D.2d 816, 696 N.Y.S.2d 183 (2d New York City Transit Authority, 248 a viable theory on which to predicate Dep’t 1999) (snow and ice); Faricelli v. A.D.2d 377, 669 N.Y.S.2d 662 (2d constructive notice in such cases. It is TSS Seedman’s, Inc., 259 A.D.2d 463, Dep’t 1998) (snow and ice); Fuks v. time for all courts and the bar to adopt 686 N.Y.S.2d 85 (2d Dep’t), aff’d, 94 New York City Transit Authority, 243 these holdings of New York’s highest N.Y.2d 772 (1999) (debris on floor); A.D.2d 678, 663 N.Y.S.2d 639 (2d court. Drevis v. City of New York, 257 A.D.2d Dep’t 1997) (snow and ice); Lowe v. 595, 684 N.Y.S.2d 271 (2d Dep’t 1999) Olympia & York Companies, 238 A.D.2d (snow and ice); Segretti v. Shorenstein 317, 656 N.Y.S.2d 930 (2d Dep’t 1997) Fay Leoussis Co. East, 256 A.D.2d 234, 682 N.Y.S.2d (wet floor); Paciello v. Waldbaum’s Su- First Deputy Chief 176 (1st Dep’t 1998) (oil on floor); permarket, 231 A.D.2d 618, 647 Tort Division Davis v. City of New York, 255 A.D.2d N.Y.S.2d 966 (2d Dep’t 1996), appeal New York City Law Department 356, 679 N.Y.S.2d 677 (2d Dep’t 1998) denied, 89 N.Y.2d 806, 654 N.Y.S.2d

Journal | November/December 2000 37 Why the Legal Profession Needs POINT OF VIEW To Mirror the Community It Serves

BY L. PRISCILLA HALL erman Moses is dead. That courtroom.” He was smart—German prosecutors, police, defense attorneys, means very little to you, but Moses—but he could not figure out court officers, probation and parole of- Gwhen I was asked to be one of how to negotiate in a racist society. ficers—did look like the defendants the speakers on the topic “Why the Because of who I am, I saw German who passed through the courthouse Legal Profession Needs to Mirror the Moses differently than others saw him. portals. Then, the system believed in Community that It Services,” it was the Because I know how it feels to be invis- probation, parole and rehabilitation, first thought that came to my mind. I ible, I could visualize him. Where oth- and the dispensers of justice exercised always think of German Moses when I ers saw meanness, I saw fear. Where discretion to individualize justice and think of what it is I bring to the legal others saw truculence, I saw vulnera- prevent the destruction of a people. profession and to the judiciary. bility. Where others saw a threat, I saw And, based on the ethnicity of today’s German Moses is dead, but before someone in need of supervision. Where criminal justice administration, one he died he was a defendant on my pro- others saw danger, I saw an individual would have to conclude that those bation calendar. I cannot remember the waiting for someone to listen to him, to prior policies have been overwhelm- charges against him, but I remember respect him. And to tell him what to do. ingly successful. him and his mother, who sat with So I did. I listened to him and I talked Now that the criminal justice system pleading eyes in the back of my court- to him. I explained things to him. I told is filled with black and Latino defen- room. When he appeared before me the him what to do. Often he would dants, it is dedicated to jailing people first time, he was sullen, sulking and threaten to defy my order, but he for “quality of life” crimes, imposing scowling with a reputation for being obeyed. Often he argued that he was higher and higher mandatory mini- difficult. He was not a big man, but he not going to return to court, but he was mums, and the ability of administra- was very black in color, my color. And always there when required. In fact, he tors of justice to exercise discretion is so he was hostile. And he was profane. once dragged himself in on crutches, severely reduced it is almost nonexis- And he projected a menacing aura, an having gotten into a fight in Philadel- tent. aura of violence. White court officers phia and been taken to the hospital. But Last Sunday’s Times carried opinion would start to bristle as soon as he he managed to get to New York and to editorial pieces by ten Americans of di- walked into the courtroom. the courtroom on the proper adjourned verse backgrounds, including Patricia Lawyer after lawyer asked to be re- date. I assigned him to intensive super- Williams, a Columbia University law lieved because they could not get along vision and the probation officers com- professor and a winner of one of this with him. I despaired of any alternative plained. They wanted to violate his year’s MacArthur “Genius” Awards; other than jail because I could not get a probation because of his attitude. But I Robert L. Johnson, chairman of Black lawyer to represent him continually. Fi- continued to remonstrate with German Entertainment Television and soon-to- nally I prevailed on a lawyer who I Moses and to admonish him. And be airline entrepreneur; and Barbara knew was patient and able to handle gradually, oh so slowly, he calmed Smith, owner of restaurants in Manhat- difficult people. He agreed but soon be- down. tan, Sag Harbor and Washington, D.C. came exasperated also. He suggested, I still remember the day the proba- In spite of their respective academic however, that perhaps German Moses tion supervisor walked in smiling brilliance, money or fame, each wrote needed an examination of his mental about German Moses. German Moses about the experience of being invisible and emotional state to determine was doing well. He was reporting as he in a white society. If Prof. Williams, whether he had some organic problem was supposed to. Going to the classes Robert Johnson and Barbara Smith are that was causing his bad attitude. I he was directed to attend. So instead of invisible, what hope is there for the quickly agreed. reporting to my courtroom on a regular German Moseses? When the report came back, every- basis, he was restored to probation. Oh Some time after German Moses had one was surprised. All had assumed happy day! been restored to probation, the supervi- that German Moses was unintelligent, Decades ago, German Moses was sor walked in looking unhappy. He had unlettered and uneducable. It turned Jewish, or Italian or Irish. Although unhappy news. German Moses was out, and I quote the lawyer, “He is perhaps not ethnically identical, the ad- dead. I was devastated. What more probably the smartest person in the ministrators of justice—the judges, could I have done? Still I knew I had

38 Journal | November/December 2000 tried. I made a difference if only for a different perspective, a different ap- sity has a very distinct advantage. It al- while. proach, to the problem-solving appara- lows justice to see. I still make a difference. Because of tus that is the criminal justice system. who I am, I bring something additional That difference is what makes diver- L. PRISCILLA HALL is a justice of the Supreme Court, Kings County. This to the process. Because of who I am, I sity valuable. Diversity can make the article is adapted from an address she see things a little differently. Because of invisible visible. It can allow the judi- gave in July at an American Bar Asso- who I am, I hear things a bit differently. cial system to treat people not merely ciation, “Town Meeting on Diversity Because of my experiences, I bring a as bodies, “perps” or numbers. Diver- in the Legal Profession.”

Journal | November/December 2000 39 which have slightly different mean- Mary Smith was already identified by ings. name. That statement was true. How- LANGUAGE Question: Attorney Maureen Kane ever, correspondent Mr. Richard Inz writes from Mesa, Ariz., to ask which correctly wrote that if there were two TIPS phrase, “in determining” or “by deter- Mary Smiths who were professors, the mining,” is correct in the following sentence should then state, “The Pro- statement: “The trial court erred fessor Mary Smith who is a member of B Y G ERTRUDE B LOCK (in/by) determining that the matter this faculty is on sabbatical at present.” was moot.” My thanks to Mr. Inz for making the Answer: Either of the prepositions, point that the clause beginning “who” uestion: To describe our adver- in or by, is correct. The statement could would then be a restrictive clause with sary’s ignoring of critical points also substitute “when it determined” no commas, because it answers the Qin our opening brief, my co- instead of either phrase: “The trial question, “Which Mary Smith?” counsel and I used the word elide. (Dic- court erred when it determined that New York City correspondent tionaries define elide as “strike out.”) the matter was moot.” Geographical Jonathan Lang sent the following ad- However, when asked to substitute the areas may differ in their choice. vice that he said will save lawyers mil- phrase elide over, I refused because elide lions of words: “Instead of using ‘in includes the word over, and it makes From the Mailbag the event that’ use ‘if.’” no sense to say “strike out over.” But Several readers have commented several judicial opinions using the about the July/August “Language Gertrude Block is a lecturer emeritus phrase elide over were then produced. Tips” column discussing the problems and writing specialist at Holland Law What is the answer? of translating Spanish into English. In Center, University of Florida, Answer: Before responding to New that column, an American who lives in Gainesville, FL 32611, and a consul- York attorney Joe Genova, who sent Mexico wrote that Americans who ask tant on language matters. She is the this question, I checked the usually re- Mexican women if they are “em- author of Effective Legal Writing, fifth liable Words & Phrases for opinions barazado” may be unaware that the edition (Foundation Press, July 1999), using the phrase “elide over,” but adjective means “pregnant” in Span- and co-author of Judicial Opinion Writ- ing Manual (West Group for ABA, found none. And neither Black’s Law ish. 1991). Dictionary (6th edition) nor Statsky’s Many readers wrote to object. Al- Legal Thesaurus/Dictionary (2nd edi- bany attorney Paul Gillan, delighted The author welcomes the submission tion) listed the word elide. Both the that his four years of Spanish study at of questions to be answered in this verb elide and its corresponding noun Princeton, had finally paid off, noted column. Readers who do not object to their names being mentioned should form elision are most common as gram- that the “o” ending of the adjective state so in their letters. E-mail: matical terms. refers to the masculine gender, so a [email protected] Both Webster’s Third (unabridged) woman would be “embarazada” not and The American Heritage Dictionary “embarazado.” (Second College Edition) list elide, Other correspondents agreed with NYSBACLE which is derived from the Latin verb Mr. Gillan. From Minneapolis, Attor- laedere (meaning “strike”) plus the pre- ney Miguel Gonzalez commented that fix ex (“out”). Webster’s defines elide as the illustration better indicated the er- New York State Bar “to suppress or alter, to strike out.” roneous effort of a non-native Spanish Association seminars The AHD defines elide in its grammati- speaker to translate Spanish into Eng- and selected audiotapes cal sense, as “to omit or slur over a syl- lish literally. Embarazada, he wrote, and videotapes are a lable in pronunciation.” If you pro- could also mean “shy, or embar- great way to earn nounce the word comfortable as rassed,” and he listed several such pos- “comf’table” or “comf’terble,” you sible translation problems. For exam- MCLE credit! have “elided” the or sound between ple, “El es sensible” can mean either For more information on CLE the f and the t in that word. “He is sensible” or “he is sensitive” in seminars and products, call There seems to be no objection to English. Mr. Genova’s choice of elide in the con- In the June Language Tips, I wrote 1-800-582-2452 text he provided. He can argue that ju- that “Professor Mary Smith, who is a dicial opinions support his choice. Or member of this faculty, is on sabbatical to maintain the peace, he might substi- at present” was correct, the relative tute ignore, omit, or leave out, all of clause being non-restrictive because

40 Journal | November/December 2000 Justice Robert H. Jackson RIBUTE T BY EUGENE C. GERHART

t is indeed a pleasure to con- right, but the underdog was not au- Winston Churchill and others tribute on this occasion to your tomatically right just because he was have said the history of mankind is Isplendid memorial honoring a an underdog. Jackson’s dissent in the history of war. The peaceable al- great American lawyer whom we all the Supreme Court decision involv- ternative to war is enforceable law. admire and respect, Jamestown’s ing the American concentration Society needs rules of conduct that son, Robert Houghwout Jackson. camps in World War II is worth must be enforceable because without Bob Jackson left a great record as a quoting. Korematsu was born on order and enforceable law, society county-seat lawyer from Jamestown. American soil, as an American citi- can accomplish very little. Mobs pro- He was outstanding as a U.S. zen of Japanese ancestry. The tect nobody’s rights. The hierarchy Supreme Court judge. His part in the Supreme Court permitted such peo- seems to be this: first, we need order; international trial prosecuting the ple, although American citizens, to second, we need rules of conduct Nazi war criminals at Nuremberg be incarcerated on the West Coast as that we call law; third, we need a rec- after World War II was unique. part of a war-time military expedi- ognized superior to enforce laws. Like Lincoln, Robert H. Jackson ent. Jackson dissented, saying: “My The holocaust in Europe in World did not graduate from college or law duties as a justice as I see them do War II is an example of what hap- school, but his record proved, as his not require me to make a military pens when fair laws are not enforced. briefs and arguments proved, that he judgment as to whether General De- The alternative to struggle and war is was most effective in his choice and Witt’s evacuation and detention pro- enforceable law—as Jackson said, use of words. President Franklin De- gram was a reasonable military ne- “Leave to live by no man’s leave un- lano Roosevelt wisely selected him cessity. I do not suggest that the derneath the law.” If we are to have to be the U.S. Attorney General. Jus- courts should have attempted to in- that, we need the kind of men that tice Louis D. Brandeis of the terfere with the Army in carrying Robert Houghwout Jackson exempli- Supreme Court praised his work in out its task. But I do not think they fied in his wonderful essay, “The that office, saying that Jackson may be asked to execute a military County-Seat Lawyer.” Here are Jack- “should be attorney general for life.” expedient that has no place in law son’s own words: under the Constitution. I would re- But this vanishing country As a Supreme Court Justice him- verse the judgment and discharge self, Jackson stood for integrity, hon- lawyer left his mark on his times, the prisoner.” Korematsu v. United and he was worth knowing. He esty and independence. When he States, 323 U.S. 214 (1944). “read law” in the Commentaries differed as a justice in a case in After World War II, Jackson was of Blackstone and Kent and not which as attorney general he had our leading American advocate in by the case system. He resolved earlier advised President Roosevelt, the prosecution of the Nazi war problems by what he called “first he later changed his mind when the principles.” He did not special- criminals in Nuremberg. This was a ize, nor did he pick and choose case came before the Supreme Court. move by international law advo- With typical Jackson good humor, he clients. He rarely declined service cates to hold individual men respon- to worthy ones because of inabil- said, “I see no reason why I should sible under international law for ity to pay. Once enlisted for a be consciously wrong today because their crimes against humanity. At client, he took his obligation seri- I was unconsciously wrong yester- Nuremberg, Jackson, as American’s ously. He insisted on complete day.” Massachusetts v. United States, advocate, was on a world stage. The control of the litigation he was no mere hired hand. But he gave 333 U.S. 611, 639-49 (1948). world today is following the prece- every power and resource to the Alpheus T. Mason, my favorite dents that he and our allies estab- cause. He identified himself with Princeton professor of politics, was lished. John W. Davis, a leading the client’s cause fully, sometimes proud of what he called 18th century New York appellate lawyer, said too fully. He would fight the ad- liberalism. Justice Jackson, in my after Jackson’s argument in Nurem- verse party and fight his counsel, own opinion, was not a “knee-jerk berg, “Jackson’s final argument was fight every hostile witness, and intellectual liberal.” He was for the one of the greatest examples of ad- fight the court, fight public senti- underdog when the underdog was vocacy I have ever read.” CONTINUED ON PAGE 54

42 Journal | November/December 2000 The Journal’s 2000 Statement of Ownership, Management and Circulation

Journal | November/December 2000 43 Index to Authors 2000

Name Issue Page Name Issue Page Aman, John, J...... January ...... 12 Marrow, Paul Bennett...... February...... 18 Bandler, Brian C...... July/August ...... 28 Marrus, Alan D...... July/August ...... 42 Bauchner, Joshua S...... March/April...... 26 Massaro, Hon. Dominic R...... January ...... 44 Bellacosa, Hon. Joseph W...... October...... 5 McCloskey, Susan ...... Nov./Dec...... 31 Bennett, Steven C...... February...... 48 McGuinness, J. Michael...... February...... 36 Berman, Greg...... June ...... 8 McGuinness, J. Michael...... September ...... 17 Calabrese, Alex...... June ...... 14 Meade, Robert C., Jr...... May ...... 36 Cavanagh, Edward D...... January ...... 38 Monachino, Benedict J...... May ...... 22 Clauss, William...... June ...... 35 Mone, Jennifer M...... September ...... 35 Cohen, Daniel A...... September ...... 43 Murphy, Hon. Francis T...... January ...... 54 Cole, Ann H...... September ...... 39 Murphy, Hon.Francis T...... March/April...... 56 Crane, Stephen G...... May ...... 36 Ovsiovitch, Jay S...... June ...... 35 Dachs, Jonathan A...... July/August ...... 18 Ozello, James ...... March/April...... 54 Davis, Wendy B...... January ...... 50 Palewski, Peter S...... May ...... 8 Di Lorenzo, Vincent ...... October...... 36 Peckham, Eugene E...... February...... 52 Disner, Eliot G...... March/April...... 35 Peckham, Eugene E...... September ...... 30 Donahoe, Diana Roberto...... March/April...... 46 Reixach, Rene H., Jr...... February...... 8 Dunham, Andrea Atsuko...... January ...... 53 Rohan, Patrick J...... October...... 49 Effinger, Montgomery Lee...... June ...... 41 Rose, James M...... July/August ...... 64 Fields, Marjory D...... June ...... 20 Rose, James M...... September ...... 64 Gallagher, Stephen P...... June ...... 24 Rose, James M...... Nov./Dec...... 64 Gershman, Bennett L...... March/April...... 42 Ross, David S...... July/August ...... 46 Gregory, David L...... October...... 27 Rothberg, Richard S...... May ...... 51 Hall, L. Priscilla ...... Nov./Dec...... 38 Sederbaum, Arthur D...... June ...... 48 Holly, Wayne D...... January ...... 26 Shelanski, Vivien B...... July/August ...... 46 Jalbert, R. Joseph ...... Nov./Dec...... 24 Starr, Stephen Z...... July/August ...... 28 Kaye, Judith S...... September ...... 50 Taller, Y. David...... September ...... 27 Kirgis, Paul Frederic ...... February...... 30 Taylor, Patrick L...... February...... 41 Knipps, Susan K...... June ...... 8 Turano, Margaret V...... October...... 12 Korgie, Tammy, S...... March/April ...... 11 Ward, Ettie...... October...... 18 La Manna, Judith A...... September ...... 8 Weinberg, Philip...... February...... 55 Lang, Robert D...... July/August ...... 10 Weinberg, Philip...... October...... 44 Leshner, Alan I...... September ...... 53 Weinberger, Michael ...... July/August ...... 38 Liotti, Thomas F...... September ...... 39 Wicks James M...... September ...... 35 Lurie, Alvin D...... May ...... 44 Wilsey, Gregory S...... March/April...... 10 Maccaro, James A...... May ...... 54 Young, Maureen W...... January ...... 30 Manz, William H...... Nov./Dec...... 26 Zoellick, Bill ...... Nov./Dec...... 10

Index to Authors 1999 Name Issue Page Name Issue Page Adams, Martin B...... March...... 46 Bernak, Elliot D...... Sept./Oct...... 36 Andrews, Ross P...... Sept./Oct...... 8 Boehm, David O...... November ...... 52 Barnosky, John...... December ...... 8 Carlinsky, Michael B...... February...... 29 Berlin, Sharon N...... Sept./Oct...... 43 Cavanagh, Edward D...... July/August ...... 9

44 Journal | November/December 2000 1999 AUTHOR INDEX (CONT’D) Name Issue Page Name Issue Page Cherubin, David M...... November ...... 24 McCloskey, Susan ...... November ...... 47 Coffey, James J...... May/June...... 47 Modica, Steven V...... May/June...... 52 Cohen-Gallet, Bonnie ...... January ...... 40 Morken, John R...... December ...... 8 Cooper, Ilene Sherwyn...... July/August ...... 34 Murphy, Hon. Francis T...... April...... 86 Crotty, John M...... Sept./Oct...... 74 Netter, Miriam M...... November ...... 10 Curran, Paul J...... January ...... 23 Nicolais, Robert F...... November ...... 39 Dachs, Jonathan, A...... May/June...... 8 Oliver, Donald D...... Sept./Oct...... 61 DiLorenzo, Louis P...... Sept./Oct...... 7 Panken, Peter M...... Sept./Oct...... 26 Dunn, Ronald G...... Sept./Oct...... 70 Peck, Dana D...... May/June...... 47 Fitzgerald, Brian P...... November ...... 32 Peckham, Eugene E...... December ...... 37 Frumkin, William D...... Sept./Oct...... 36 Pfau, Ann Hon...... January ...... 8 Gaal, John...... Sept./Oct...... 61 Pinzel, Frank B...... March...... 50 Gerges, Hon. Abraham G...... March...... 52 Rose, James M...... March...... 54 Gold, Elayne G...... Sept./Oct...... 70 Rose, James M...... May/June...... 54 Grall, John G...... December ...... 16 Rubenstein, Joshua S...... December ...... 52 Halligan, Rosemary ...... Sept./Oct...... 51 Schlesinger, Sanford J...... December ...... 43 Holly, Wayne D...... March...... 38 Schumacher, Jon L...... December ...... 23 Katzman, Gerald H...... November ...... 10 Shaw, Adam M...... July/August ...... 30 Klein, Eve I...... Sept./Oct...... 51 Sheinberg, Wendy H...... February...... 36 Krass, Stephen J...... December ...... 29 Silverman, Daniel...... Sept./Oct...... 80 Krieger, Lara M...... February...... 29 Spelfogel, Evan J...... Sept./Oct...... 16 Lauricella, Peter A...... November ...... 24 Stein, Joshua...... July/August ...... 44 Lebovits, Gerald...... January ...... 28 Steinberg, Harry...... November ...... 12 Leven, David C...... January ...... 23 Taller, Y. David...... May/June...... 24 Littleton, Robert W...... July/August ...... 8 Trueman, David...... February...... 6 Mahler, Peter A...... May/June...... 28 Wicks, James M...... February...... 44 Mahler, Peter A...... July/August ...... 21 Williams, Jeffery D...... Sept./Oct...... 26 Maier, Philip L...... May/June...... 41 Winfield, Richard N...... May/June...... 37 Marbot, Karen L...... November ...... 10 Young, Sanford F...... March...... 8 Mark, Dana L...... December ...... 43 Zuckerman, Michael H...... December ...... 16 Maroko, Richard A...... Sept./Oct...... 8 Zuckerman, Richard K...... Sept./Oct...... 43 Marrow, Paul Bennett...... March...... 26 Zweig, Marie...... February...... 44

Index to Authors 1998 Name Issue Page Name Issue Page Adams, Martin B...... July/August ...... 34 Cabranes, Jose A...... March/April...... 22 Alonso, Andrea M...... March/April...... 34 Carp, Gerald I...... February...... 26 Atnally, Edward V...... Sept./Oct...... 52 Catalanello, Gerard S...... November ...... 26 Balter, Bruce M...... Sept./Oct...... 24 Clark, Paul F...... July/August ...... 22 Bauman, Harold J...... July/August ...... 46 Cole, James D...... March/April...... 46 Bellacosa, Hon. Joseph W...... July/August ...... 50 Colella, Frank G...... March/April...... 26 Bennett, Steven C...... Sept./Oct...... 62 Collins, John P...... February...... 43 Borrok, Peter A...... February...... 14 Crane, Hon. Stephen G...... November ...... 6 Brownstein, Gila...... May/June...... 55 Dabiri, Gloria M...... January ...... 16 Bryce, C. Michael ...... May/June...... 26 Dachs, Jonathan A...... Sept./Oct...... 46 Burger, Stephen V...... March/April...... 52 Daly, Mary C...... May/June...... 6 Bynum, Charlotte L...... May/June...... 34 Daus, Matthew W...... March/April...... 30

Journal | November/December 2000 45 1998 AUTHOR INDEX (CONT’D) Name Issue Page Name Issue Page Draper, Thomas G., Jr...... February...... 26 Muldoon, Gary...... July/August ...... 26 Effinger, Montgomery L...... January ...... 51 Muldoon, Gary...... December ...... 44 Eisman, Clyde Jay...... February...... 22 Murphy, Hon. Francis T...... March/April...... 12 Engel, Hope B...... Sept./Oct...... 20 Nichols, Jeffrey R...... March/April...... 38 Fahringer, Herald Price...... February...... 6 O’Connor, Michael P...... January ...... 14 Faley, Kevin G ...... March/April...... 34 Olson, Alan R...... February...... 47 Feigenbaum, Paul ...... July/August ...... 46 Peckham, Eugene E...... January ...... 54 Finnegan, Lawrence J., Jr...... July/August ...... 12 Reed, Richard C...... February...... 45 Fitch, Valerie ...... January ...... 25 Reichler, Judith M...... May/June...... 55 Fries, Richard S...... December ...... 50 Richard, M. Louise...... March/April...... 18 Frumkin, William D...... February...... 32 Rikon, Michael...... July/August ...... 42 Gershman, Bennett L...... Sept./Oct...... 34 Riley, James K...... February...... 8 Glen, Kristin Booth ...... May/June...... 20 Rizzo, Joseph B...... Sept./Oct...... 38 Goldberg, Ilise S...... May/June...... 60 Rothberg, Richard S...... December ...... 54 Gottlieb, Jay L...... November ...... 26 Rubenstein, Joshua S...... November ...... 42 Grant, J. Kirkland...... May/June...... 12 Santangelo, Louis G...... February...... 32 Green, Bruce A...... May/June...... 6 Savino, Angelo G...... Sept./Oct...... 28 Gregory, David L...... May/June...... 38 Schanker, Steven M...... January ...... 24 Grew, Robert R...... March/April...... 52 Schiro, Lawrence ...... February...... 37 Haggerty, Edward G...... May/June...... 45 Schlegel, John Henry ...... May/June...... 42 Hartnick, Alan J...... July/August ...... 18 Schlesinger, Sanford J...... May/June...... 60 Hoffman, David N...... March/April...... 38 Seibel, Robert F...... May/June...... 26 Hughes, James E...... March/April...... 42 Sherwood, Arthur M...... Sept./Oct...... 70 Hyland, Thomas W...... July/August ...... 51 Shestack, Jerome J...... January ...... 50 Jackson, Justice Robert H...... January ...... 43 Shields, John M...... March/April...... 14 Kane, Hon. Anthony...... July/August ...... 46 Shields, John M...... July/August ...... 14 Kaye, Judith S...... May/June...... 50 Shields, John M...... Sept./Oct...... 58 Kershenbaum, Joseph...... March/April...... 18 Simone, Michael J...... Sept./Oct...... 24 Kershenbaum, Joseph...... December ...... 22 Siviglia, Peter...... May/June...... 46 Knight, Jeffrey R...... February...... 34 Siviglia, Peter...... Sept./Oct...... 66 Kozol, George B...... July/August ...... 54 Stack, Gerald F...... March/April...... 47 Kroll, S. Robert ...... January ...... 32 Steinberg, Harry...... February...... 41 Kruger, Robert ...... November ...... 16 Steinberg, Harry...... December ...... 36 Lang, Robert D...... January ...... 38 Steinberg, James M...... July/August ...... 38 Lebovits, Gerald...... December ...... 6 Thomas, Jerry W...... January ...... 8 Lencsis, Peter M...... Sept./Oct...... 42 Tsimbinos, Spiros A...... January ...... 33 Levine, Howard A...... Sept./Oct...... 20 Turilli, M. Louise ...... December ...... 22 Liotti, Thomas F...... July/August ...... 60 Van Kula, George ...... March/April...... 6 Liotti, Thomas F...... November ...... 32 Weiner, Gregg L...... February...... 52 Mans, Sandra L...... May/June...... 32 Weisel, Martha S...... January ...... 41 Massaro, Hon. Dominic R...... Sept./Oct...... 12 Wesely, Edwin J...... January ...... 25 McCarthy, Kevin M...... January ...... 10 Wishnick, Sheldon ...... February...... 20 McCloskey, Susan ...... November ...... 8 Wright, Nigel G...... July/August ...... 30 Mertens, Richard W...... February...... 57 Young, Maureen W...... November ...... 21 Muhlbauer, Deborah J...... January ...... 20

46 Journal | November/December 2000 Index to Articles—2000 Article Issue Page Article Issue Page Antitrust Bureau in New York Pursues Eulogy—In Memoriam: Mandate to Represent State Interests Lawrence H. Cooke...... September ...... 50 in Fostering Competitive Federal Rules of Civil Procedure— Environment...... January ...... 38 Will the Proposed Amendments Arbitration—Courts Differ on Standard Improve the Pretrial Process?...... October ...... 18 Applicable When Parties Seek Gramm-Leach-Bliley Act Challenges Provisional Remedies ...... September ...... 35 Financial Regulators to Assure Safe Child Support Cases, Uniform Interstate Transition in Banking Industry ...... October ...... 36 Family Support Act Has Made Gun Crimes Increases Need for Extensive Changes In Interstate...... January ...... 12 Attorneys to Give Clear Advice on Civil Case—Using Threats to Settle Possible Sentences, “Project Exile” Could Subject Counsel to Criminal Effort on ...... June ...... 35 Consequences...... January ...... 26 Hospital-based Arraignments Involve Civil Practice, Adjournments in— Conflicts in Roles of Press, Patients, Courts Seek Careful Balance Between Hospitals and Law Enforcement ...... February ...... 41 Fairness and Genuine Needs...... May ...... 36 Internet Web Sites Offer Access to Less Community Needs, “Team Red Hook” Expensive Case Law and Materials Addresses Wide Range of ...... June ...... 14 Not Offered Commercially ...... Nov./Dec...... 26 Contractual Unconscionability: Judicial Certification of Experts: Identifying and Understanding Litigators Should Blow the Whistle on Its Potential Elements ...... February ...... 18 a Common But Flawed Practice...... February ...... 30 Conveyancing—Title Insurance, Deeds, Judicial Roundtable—Reflections of Binders, Brokers and Beyond, A Problem-Solving Court Justices ...... June ...... 9 Primer...... October ...... 49 Law Office Management—How Should Depositions—Taking Depositions On the Law Firms Respond to New Forms of Road in Tokyo Or: The Only Show in Competition?...... June ...... 24 Town...... March/April....35 Lawsuits on the Links: Golfers Must Discovery Responses, Close Attention to Exercise Ordinary Care to Avoid Slices, Detail Can Persuade Judges to Order Shanks and Hooks...... July/August ....10 Truly Complete ...... July/August ....38 Liability for Failure to Use Seat Belts Document Examination—Detecting May Not Apply in School Bus Forgeries Requires Analysis of Strokes Accidents, Normal Rules on...... June ...... 41 and Pressures ...... Nov./Dec...... 24 Life Insurance and Annuities May Electronic Signatures—Wide Use of Insulate Some Assets From Loss in Awaits Market Decisions About Their Unexpected Bankruptcy Filings...... July/August ....28 Risks and Benefits ...... Nov./Dec...... 10 Litigation Strategies—Reviewing Employers—Can They Limit Employee Documents for Privilege: A Use of Company E-mail Systems for Practical Guide to the Process ...... September ...... 43 Union Purposes?...... January ...... 30 Long Arm Statute Contains Provisions Environmental Cases in New York Pose Suitable for Jurisdiction over Web Complex Remediation Issues With Sites, New York’s...... March/April....26 Profound Impact on Land Values...... May ...... 8 Mediators, Reflections on Being ...... July/August ....46 Environmental Offenses—Courts May Medicaid and Medicare Fair Hearings Find Individuals Liable Without Are Vital First Step in Reversing Piercing Corporate Shield ...... May ...... 22 Adverse Decisions on Patient Care ...... February ...... 8 Equal Protection—Decisions of the Past Mock Trial Competition Introduces High Decade Have Expanded It Beyond School Students to the Law and Court Suspect Classes ...... February ...... 36 Procedures ...... March/April....10 Estate Administration in New York— Mock Trial Tournament Teaches Skills New Era Has Reduced Estate Tax but For a Lifetime...... March/April ....11 Many Requirements Still Apply...... September ...... 30

Journal | November/December 2000 47 2000 ARTICLE INDEX (CONT’D) Article Issue Page Article Issue Page Motorists, Summing up 1999 ‘SUM’ Res Ipsa Jocatur—NATFA’s Why Santa Decisions: Courts Provide New Claus Is Not Comin’ to Town...... Nov./Dec...... 64 Guidance on Coverage Issues for ...... July/August ....18 Res Ipsa Jocatur—Will New York State Non-Complete Clauses—Courts In New Nikes Become Pyrrhic Victories? ...... July/August ....64 York Will Enforce in Contracts Only if Roman Law, Taking Title to New York: They Are Carefully Contoured...... October ...... 27 The Enduring Authority of...... January ...... 44 Objective Reasonableness, Shootings by Roundtable Discussion—U.S., British Police Officers Are Analyzed Under and German Attorneys Reflect on Standards Based on...... September ...... 17 Multijurisdictional Work...... June ...... 31 Poetry—Challenges ...... January ...... 53 Seriatim Reflections—A Quarter Century Point of View—Participation of Women in Albany: A Period of Constructive Should Be Required in Domestic Progress...... October ...... 5 Violence Cases ...... January ...... 54 Summary of Report—Association Point of View—Televised Criminal Trials Committee Recommends Pension May Deny Defendant a Fair Trial ...... March/April....56 Simplification Commission...... May ...... 44 Point of View—To the Supreme Court: Tax Techniques—Community Keep the Courthouse Doors Open ...... February ...... 55 Foundations: Doing More for Point of View—Treatment Option for the Community...... February ...... 52 Drug Offenders Is Consistent With Tax Techniques—Proposed GST Research Findings ...... September ...... 53 Regulations Clarify Exemptions Point of View—Why the Legal Profession for Grandfathered Trusts...... June ...... 48 Needs to Mirror the Community It Tax Techniques—Qualified State Tuition Serves ...... Nov./Dec...... 38 Programs and Education IRAs...... May ...... 51 Practice Hints—Changes in Rules for Technology Primer—Video Home Offices Provide New Teleconferencing of Hearings Possibilities for Deductions ...... March/April....54 Provides Savings in Time and Practice Hints—Computerized Research Money ...... September ...... 8 of Social Security Issues ...... May ...... 54 Trial Strategies—Quick Voir Dire: Problem-Solving Courts Provide Making the Most of 15 Minutes...... September ...... 39 Meaningful Alternatives to Traditional View From the Bench—One More Time: Remedies, New York’s...... June ...... 8 Custody Litigation Hurts Children ...... June ...... 20 Race, Use of in “Stop-and-Frisk”: View From the Bench—The Most Stereotypical Beliefs Linger, But Powerful Word in the Law: How Far Can the Police Go? ...... March/April....42 “Objection!”...... July/August ....42 Recurring Conditions Can Satisfy Prima Writing Clinic—Analyzing the Writer’s Facie Requirement for Notice in Slip- Analysis: Will It Be Clear to and-Fall Litigation, Proof of ...... September ...... 27 the Reader?...... March/April....46 Reflections on Reading—Moments of Writing Clinic—An Attorney’s Ethical Grace: Lawyers Reading Literature...... October ...... 12 Obligations Include Clear Writing...... January ...... 50 Research Strategies—A Practical Guide Writing Clinic—The Keys to Clear to Cite-Checking: Assessing What Writing Convey Thoughts Gracefully...Nov./Dec...... 31 Must Be Done...... February ...... 48 Zoning Laws, Control of Suburban Res Ipsa Jocatur—Does the FDA Have Sprawl Requires Regional Jurisdiction Over “Miracles”? ...... September ...... 64 Coordination Not Provided by Local....October ...... 44

48 Journal | November/December 2000 Index to Articles—1999 Article Issue Page Article Issue Page Access to Records of Police Guilty of Estate Planning—Generation-skipping Misconduct, Decision in Schenectady Transfer Tax Continues to Evolve and Case Denies ...... May/June ...... 37 May Post Traps and Pitfalls for the Bankruptcy—Criminal and Civil Unwary ...... December...... 43 Consequences of False Oaths Help Estate Planning—Post-mortem Tax Ensure Reliable Information ...... March ...... 38 Planning Will Continue as Vital Business—Decisions Have Set Element in Handling Large Estates ...... December...... 37 Parameters for Establishing “Fair Estate Planning—Steps Taken While Value” of Frozen-out Shareholders Testator Is Alive Can Play Key Role Interests ...... July/August ....21 In Upholding Client’s Estate Plan Business—Twenty Years of Court After Death ...... December...... 8 Decisions Have Clarified Shareholder Estate Planning Benefits, Gifts Must Rights Under BCL §§ 1104-a and 1118..May/June ...... 28 Involve Some Sacrifice But the Tax Civil Procedure—The “Automatic” Stay Benefits Can Enhance ...... December...... 23 of CPLR 5519(a)(1): Can Differences in Estate Planning for Benefits from IRAs its Application Be Clarified? ...... November...... 24 and Qualified Retirement Plans Civil Procedure—Impleader Practice in Involves Numerous Taxation Issues.....December...... 29 New York: Does It Really Discourage Exclusion Language of Policies May Piecemeal Litigation? ...... February...... 44 Deny Attorneys Coverage for Consent—In Matters of Life and Death: Mistakes in Business Pursuits ...... March ...... 46 Do Our Clients Truly Give Informed HMOs—As Managed Care Plans Increase, Consent?...... February...... 36 How Can Patients Hold HMOs Liable Continuing Legal Education for New for Their Actions? ...... February...... 6 York Attorneys: Ensuring the Kumho Tire—Decision Extends Daubert Tradition of Professionalism ...... January...... 8 Approach to All Expert Testimony...... July/August ...... 9 Continuing Legal Education, Part 1500. Kumho Tire—Supreme Court Mandatory Program for Attorneys in Dramatically Changes the Rules on the State of New York ...... January...... 12 Experts...... July/August ...... 8 Courts—Effect of Changes in Decisional Labor and Management Officials See Law on Other Cases Depends Upon Benefits in Negotiated Procedure for Status When New Ruling Is Made ...... November...... 12 Coverage Under GML § 207 ...... Sept/Oct ...... 70 Courts—Old Rensselaer County Jail Is Labor Law—Cost Savings from Hiring Transformed Into Modern Facility for Contingent Workers May Be Lost if Full-service Family Court...... November...... 10 Their Status is Challenged ...... Sept/Oct ...... 36 Courts, Special Procedures Apply to Labor Law—Pre-dispute ADR Enforcing Judgments In Small Agreements Can Protect Rights of Claims ...... January...... 28 Parties and Reduce Burden on Judicial Domestic Violence Cases Recognize System ...... Sept/Oct ...... 16 Dangers of Firearms, State and Labor Law—Project Labor Agreements Federal Statutes Affecting ...... November...... 39 Offer Opportunity for Significant EPTL—Advances in DNA Techniques Present Savings on Public Construction Opportunity to Amend EPTL to Permit Projects ...... Sept/Oct ...... 61 Paternity Testing...... July/August ....34 Labor Law—Recent Decisions Have Estate Planning and Administration, Created New Theories of Negotiability 1999 New York State Legislative Under the Taylor Law...... Sept/Oct ...... 74 Changes Affecting ...... December...... 52 Labor Law—Romance in the Workplace: Estate Planning—Buy-Sell Agreements Employers Can Make Rules if They Developed as Estate Planning Vehicles Serve Legitimate Needs...... Sept/Oct ...... 43 Require Foresight and Periodic Review...... December...... 16

Journal | November/December 2000 49 1999 ARTICLE INDEX (CONT’D) Article Issue Page Article Issue Page Labor Relations in Sports Lead to Res Ipsa Jocatur—Deep in the Heart of Government Involvement, An NLRB Taxes, or . . . Few Happy Returns...... March ...... 54 Regional Director’s Life in Sports: ...... Sept/Oct ...... 80 Res Ipsa Jocatur: Tooth Fairy Prosecuted Labor Law—Employers Need to Under Provisions of Public Health Observe Limits on Monitoring the Law ...... May/June ...... 54 Workplace and Reduce Privacy Retaliation Claims Challenges Expectations ...... Sept/Oct ...... 26 Employers to Adopt Adequate Labor Law—Employment-at-Will in Preventive Measures, A Rising Tide New York Remains Essentially of ...... Sept/Oct ...... 51 Unchanged After a Century of Statutes and Rules, Appeals from Refinements...... Sept/Oct ...... 8 Intermediate Courts Require Careful Malpractice—Unhappy Clients May Adherence to Applicable ...... March ...... 8 Lodge Complaints of Neglect Even Tort Laws—Assessing the Costs and When Malpractice Is Not an Benefits (Tort Law Edition)...... April ...... 32 Issue...... May/June ...... 47 Tort Laws—A Rising Tide of Torts?...... April ...... 40 Medical Malpractice—Can the Pattern Tort Laws—Are Lawyers Promoting Jury Instruction Be Revised to Litigation? ...... April ...... 49 Reflect the Law More Accurately?...... November...... 32 Tort Laws—The Civil Justice Motor Vehicle Cases Provide Way to Reform Act...... April ...... 64 Reach Elusive Defendants, Alternate Methods of Service for ...... May/June ...... 24 Tort Laws—The Tort Law Debate in New York ...... April ...... 7 New York Felony Sentencing: Shift in Emphasis To Increase Penalties for Tort Laws—Proposals for Change (Tort Violent Offenders...... January...... 40 Law Edition)...... April ...... 57 New York Requires External Review of Tort Reform Proposals, Report of the Adverse Coverage Decisions by Task Force to Consider ...... April ...... 80 HMOs and Health Insurers...... July/August ....30 To Defer or Not to Defer: Handling Poetry—Summation in Rhyme: What Improper Practice Charges Under the Amount Will Compensate for Robert’s Taylor Act...... May/June ...... 41 Sad Fate? ...... March ...... 50 Tort Laws—Tort Law in New York Point of View—United States Should Today ...... April ...... 8 Ratify Treaty for International Criminal Trade Secrets Protection: Using Court...... April ...... 86 ‘Inevitable Misappropriation’ and the Practice Hints—Disability Benefit Exit Interview...... February...... 29 Opportunities for Clients ...... May/June ...... 52 Uninsured and Underinsured Motorists, Prisoner’s Legal Services—Cutbacks in Decisions in 1998 Clarified Issues Funding Have Crippled Its Ability to Affecting Coverage for ...... May/June ...... 8 Seek Fairness for Prisoners ...... January...... 23 View From the Bench—Clarity and Privilege and the Psychologist: Statutory Candor Are Vital In Appellate Differences Yield Untailored Multilateral Discovery ...... November...... 52 Confusion...... March ...... 26 Writing Clinic—Making the Language of Point of View: The Faceless Mentally Ill the Law Intelligible and Memorable ....November...... 47 in Our Jails...... March ...... 52 Writing Clinic—Writing Clearly and Res Ipsa Jocatur—“What’s Round on the Effectively: How to Keep the Reader’s Ends, High in the Middle and Late in Attention ...... July/August ....44 the Union?” Will Become a Legal Question...... July/August ....48

50 Journal | November/December 2000 Index to Articles—1998

Article Issue Page Article Issue Page Admissibility of DWI Chemical Test Employee or Independent Contractor: Results Obtained After the Two Hour Is the 20 Factor Test Dead?...... January...... 20 Limit Has Expired ...... Sept./Oct...... 58 Equitable Estoppel and Family Law ...... January...... 41 Adverse Possession - Alive and Well in Estate Planning—Allocating Estate the 1990’s...... January...... 14 Administrative Expenses to Post- Amendment to RPAPL Article 14 Allows Mortem Income Following Estate of Nonjudicial Foreclosure of Commercial Hubert ...... March/April....26 Mortgages ...... December...... 50 Estate Planning and Administration, Appellate Division Caseloads, The 1997-98 New York State Legislative State of...... January...... 33 Changes Affecting ...... November...... 42 Arbitration and U.S. Courts: Balancing Estate Planning for the Unwary ...... February...... 14 Their Strengths...... March/April....22 Estate Planning—Getting Back to Basics: Art of Objecting, The ...... July/August ....60 The Annual Exclusion and the Tuition Attorney General’s Opinion ...... March/April....46 and Medical Exclusion for Gift Tax Attorney General’s Opinion ...... July/August ....66 Purposes...... May/June ...... 60 Bar Examination: Anachronism or Eulogy to Editor Emeritus Francis Gatekeeper to the Profession, The ...... May/June ...... 12 Bergan...... July/August ....50 Business Changes Made By the Taxpayer Foreordained Failure: New York’s Relief Act of 1997 ...... March/April....47 Experiment with Political Review of Constitutionality...... Sept./Oct...... 12 Business—New Developments in the Law: Amendments to the Business Guidance for Those Serving on the Corporation Law of the State of New Boards of Not-For-Profit York...... March/April....52 Organizations ...... Sept./Oct...... 52 Character Licensing Enigma, The...... July/August ....18 Harassment: A Simple Charge, with a Complicated Application ...... March/April....14 Child Support After Cassano: Do We Need a Formula for Joint Custody?...... May/June ...... 55 Hearings Before the Division of Tax Appeals - Problems for the Litigator....July/August ....30 Civil Procedure—An Offer You Can’t Refuse - A Proposal for a New State IRA Distributions: Opportunities and Offer of Judgment Rule ...... March/April....34 Pitfalls...... July/August ....54 Clinical Legal Education, Trends in ...... May/June ...... 26 Into the Wild: A Review of the Recreational Use Statute...... July/August ....22 Collateral Effects of a Criminal Conviction...... July/August ....26 Investment Adviser Regulation - A New Dual System...... March/April....18 Compensating Managing Partners...... February...... 47 Judge George Bundy Smith: Reflections Constitutional Law—Broadway on the Man and His Work...... January...... 16 Revisited! ...... January...... 10 Judiciary—Is There a Role for Judges Contracts, Teaching the Teaching in an Undergraduate Drafting of ...... May/June ...... 46 College?...... February...... 43 Courtroom 2000 Dedicated to the Jury Selection—Three Days Before Memory of Justice Friedman ...... November...... 6 the System...... February...... 34 Criminal Due Process, A National LSAT: Uses and Misuses ...... May/June ...... 45 Consensus on ...... July/August ....12 Law Day Speech—Are We Afraid to Demutualization of New York Domestic Be Free? ...... February...... 6 Property/Casualty Insurers...... Sept./Oct...... 42 Law Firm Auditor, Reflections Disputed Identity, A Remarkable of a ...... July/August ....51 Case of...... February...... 8 Law School Career Services Offices - An Distributions from Qualified Plans Effective Way to Hire ...... May/June ...... 32 and IRAs ...... December...... 54 Law Schools and Practicing Lawyers— Double Jeopardy and the Variance Increasing the Synergy Between, the St. John’s Doctrine in Conspiracy Prosecutions ...November...... 32 Experience...... May/June ...... 38

Journal | November/December 2000 51 1998 ARTICLE INDEX (CONT’D) Article Issue Page Article Issue Page Lawyers as Administrators...... February...... 45 Minimum Distributions, A...... March/April....42 Lawyers—No War, No Peace: An Rights of Victims and Witnesses in American Attorney in Derventa (A City Criminal Cases Are Receiving Greater in Bosnia/Herzegovina) ...... February...... 22 Emphasis...... December...... 44 Legal Ethics in Context, Teaching...... May/June ...... 6 Roth of IRA, The...... February...... 57 Legislative and Case Law Developments Routine Loan Documents Can Play Key in UM/UIM/SUM Law - 1997 ...... Sept./Oct...... 46 Role in Determining Rights if a Lie Detection: The Supreme Court’s Borrower Defaults ...... November...... 26 Polygraph Decision ...... Sept./Oct...... 34 Sanctions for Frivolous Conduct During Life Insurance, Low Load ...... January...... 24 Civil Litigation ...... Sept./Oct...... 24 Negligence and the ADA...... March/April....30 Sanctions for Negligent Spoliation of Negligent Premises Security Law: The Evidence...... Sept./Oct...... 28 Foot is Still in the Liability Door...... Sept./Oct...... 38 Securities on the Internet: Changes in New Associate Game, The...... Sept./Oct...... 62 Laws Required to Increase Online Offerings ...... December...... 22 New York Scaffold Law and the Recalcitrant Worker, The ...... January...... 38 Small Claims Courts Offer Prompt Adjudication Based on Substantive New York’s Revised Attorney Admission Law ...... December...... 6 Rules: Still Rigorous But More “User Friendly” ...... Sept./Oct...... 20 STAR School Tax Exemptions ...... January...... 32 On Professionalism ...... January...... 50 State of the Judiciary, The ...... May/June ...... 50 Pay Reductions for Partial-Day Absences: Tax Aspects of Using a Unitrust Amount Do They Jeopardize an Exempt to Define Appropriate Benefit Currently Employee’s Status?...... November...... 21 Distributable from Non-Charitable Trusts ...... Sept./Oct...... 70 Physician - Patient Privilege in Guardianships: Can Patient Rights Be Tax Consequences of an “Ordinary” Reconciled With Patient Needs? ...... November...... 16 House Closing Updated ...... January...... 54 Practice Hints—Fine Tuning...... Sept./Oct...... 66 Technology—Brave New World ...... January...... 8 Practice Hints—How to be an Effective Technology in Legal Education, The Litigator from Day One (Practical Role of ...... May/June ...... 34 Advice for Neophyte Litigators) ...... February...... 52 Trial Judges v. Trial Lawyers: Mutual Premises Liability and Owner’s Duty: Expectations ...... March/April...... 6 Adequate Security for the Enemy Trial Practice—Bifurcation of Medical Within...... January...... 51 Malpractice Trials ...... March/April....38 Pretrial Development in Major Corporate Trial Practice—The Truth Revealed: Litigation...... January...... 25 A Peek Inside the Financial Expert’s Prior Appraisals in Condemnation and Report...... February...... 20 Tax Certiorari Cases, The Use of...... July/August ....42 Trials—Oh, Those Dastardly Trial Pro Bono and Public Interest Lawyers...... February...... 41 Opportunities in Legal Education ...... May/June ...... 20 Tribute to Country Lawyers: “Prompt Suspension” of DWI A Review...... January...... 43 Defendant’s Driving Privileges ...... July/August ....14 Tribute to Eugene C. Gerhart—The Reasonable Accommodation of a Work of His Hands...and His Heart .....July/August ...... 2 Paralyzed Firefighter...... February...... 32 Tribute to Former Chief Judge Receivership Issues, Frequent ...... February...... 37 Lawrence H. Cooke...... July/August ....46 Remarks by Hon. Francis T. Murphy...... March/April....12 Trusts—Newly Enacted Laws Dealing with Lifetime Trusts: An Analysis...... February...... 26 Res Ipsa Loquitur is a Popular Rule of Evidence at Trials Involving Injuries University of Buffalo Law School: The Arising from Elevator New Curriculum...... May/June ...... 42 Accidents...... July/August ....34 Vicarious Liability of Motor Vehicle Retirement—Primer on Required

52 Journal | November/December 2000 1998 ARTICLE INDEX (CONT’D) Article Issue Page Article Issue Page Owners Under V & TL S388 is Writing Clinic - Recognizing Verbal Extensively Litigated...... December...... 36 Clutter: Four Steps to Shorter Welfare Benefit Funds and Subrogation Documents...... November...... 8 for Partial Settlements...... July/August ....38

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Journal | November/December 2000 53 GERHART CONTINUED FROM PAGE 42

ment, fight any obstacle to his client’s success. He never quit. . . It’s . The law to him was like a reli- gion, and its practice was more than a means of support; it was a NYSBA mission. He was not always pop- ular in his community, but he Membership was respected. Unpopular mi- norities and individuals often found him their only mediator renewal and advocate. He was too inde- pendent to court the populace he time! thought of himself as a leader and lawgiver, not as a mouth- piece. He “lived well, worked We hope we hard, and died poor.” Often his can count on name was in a generation or two forgotten. It was from his broth- your continued erhood that America has drawn it support. statesmen and its judges. A free and self-governing Republic stands as a monument for the lit- Thank you! tle known and unremembered as well as for the famous men of our profession. The County-Seat Lawyer, 36 A.B.A.J. 497 (June 1950). I recall that once Bob Jackson said to me when I approached him about writing his biography, “Nobody would be interested in reading my biography.” My legal assistant, Lor- raine Wagner, and I interviewed him on numerous occasions in Washing- ton. We were delighted when he in- vited his own secretary, Elsie Dou- glas, to have lunch with us in his chambers. He had a way of making ordinary people feel completely at ease. I commend Jamestown and its lawyers for erecting a monument here to one of America’s greatest lawyers. This statute of a great Amer- ican advocate will be a continuing in- spiration to future lawyers and judges, as well as American citizens who stand for fairness, integrity, fun- damental decency and honor in American Law. I am happy to be able to contribute to his memorial cere- mony. I salute you all, and mostly Robert Houghwout Jackson, whose life is an enduring memorial in law.

54 Journal | November/December 2000 Christopher Charles Robert M. Goodman Roy Jacob Katzovicz Desantis William Harry Goodman Adam M. Kauff Elizabeth Sgioiosa Daniel Scott Gordon Jeremy A. Kaufman NEW Dillabough Lisa Cheryl Gordon Brian P. Kavanagh Joyce Sydnee Dollinger William M. Gottlieb Jason Okera Keene MEMBERS Alexandria E. Don Angelo Michelle Sharon Goveia Heather W. Kenny Mark Aaron Dorfman Jennifer Kathleen Grady Otho E. Kerr Michael T. Dougherty Carolyn M. Grancher David J. Kerstein WELCOMED Derek Richard Baxter Dodiva N. Grant Kristopher Scott Kerstetter Douglas Dian Rosemarie Gray Justin Paul Killian Kevin M. Doyle Jill M. Graziano Jean Kim James Christian D’Sidocky Abbey Green Judy Hongjung Kim Leslie S. Dubois Steven Greenfield Mina Kim FIRST DISTRICT Mary K. Brown Todd E. Duffy Brian Keith Gregory Michael P. King Neil Richard Aaronson Robert S. Brown Phillip C. Duncker Anne E. Griffith Shani M. King Araby Abaya Stephen J. Brown Robert Jelani Eddington Edward D. Griffith Paul Alexander Kipnes Sarah Dean Abeles Ronny Buni Jennifer L. Edlind Mihaela Lorena Grigore Todd A. Kipnes Daniel Addai Ann M. Burdick Jill A. Edwards Richard Grossman Dana Kirchman Cadmus Aholu Inga Burekhovich Lolly Ann Enriquez David Byrne Guenther Adam L. Kirschner John F. Aiello Debra Marie Burg Nicola J. Espie Lloyd A. Gura Alexander D. Kisch Richard L. Akel Thomas A. Butera Rosa V. Estrella Hiroyuki Hagiwara Jason M. Klein Kenneth E. Aldous Anthony M. Camisa Christopher Ewan Erich L. Hahn Nancy Jennifer Klein Emily Sinclair Alexander Georgeann Caporal Jeffrey Fahys Sian O’Malley Hah Susan R. Klein Benjamin Alfonsi Carlo-Edoardo Carlon Olivier N. Farache Bradley S. Hames Lauren Kluger Karen Ann Alinauskas Don D. Carlucci Mark D. Fass Molly Elizabeth Matthew W. Knecht Kim Georgette Allen Christopher J. Caslin Matthew S. Feig Hammerberg Thomas Anthony Kocian David Sean Almeida Michele Cerezo-Natal Jeffrey Michael Feinblatt Nicholas Anthony Hardge Leonard M. Kohen Sean A. Altschul Christopher Chaice Mark Ellis Feldman Kathryn M. Harness Samuel S. Kohn Ashley Robert Altschuler Carol Ann Challed Karlyne Fequiere Zachary Michael Harrison Junichi Kondo Jami Chamdima Melinda M. Chan Timothy M. Fesenmyer James A. Harrod Kevin T. S. Kong Amarasinghe John B. Chase Vanessa A. Fieve Amyn Hassanally Konstantin O. Konstantinov Harvinder Singh Anand Tian-wei D. Chen Alison K. Finley Lori Stella Hatem Seth F. Kornbluth Lara Jean Ancona Benjamin Ming-Zen Cheng Marian C. Finn Jaroslaw C.K. Hawrylewicz Schuyler Blake Kraus Nicole Deane Ankeny Morry Cheng Michael A. Fischer Nava Hazan Ryan Kroiz Pierre G. Armand Steven Richard Chiodini Andrea Fitz Matthew Pearsall Heiskell Martin A. Kron Steven E. Armstrong Mukang Cho Brian James Fitzgerald Harrison Blair Henry Gregg R. Kurlander Sameer Mahendra Ashar Sandy Choi Joseph Fleming Thomas J. Henry Dwight Kwa Joseph Mark Asher Nihara Karim Choudhri Lawrence Heath Fogelman Braden P. Herman Alison Leigh Lacroix Marc S. Assa Nina Elizabeth Chowdhry Rebecca Anne Foley Jared Alexander Hershberg Cheryl A. Lagay Eun Jin Bae Juemin Chu Scott M. Fortunoff Justin C. Hewitt Kevin J. Lake Yanira Ivette Baez Richard Chun Jeffrey Carl Fourmaux Steven B. Heymann Lance A. Landers Kathleen Anne Bailie Esther S. Chung Kristin G. Francis Amelia Hindi John B. Landes Lee Turnier Barnum Marc D. Cimino Beatriz R.J. Franco Pascal Hippert Thomas Charles Landrigan Sneha Raghu Barot Michael D. Cleaver Matthew Graham Frankle Karen M. Hoffman Juan Carlos Landrove Craig Dana Barrett Tsiona Cohen Anyanate Fred-Horsfall Lawrence M. Hoffman Christopher David Lang Jessica Ilene Basil Carl H. Coleman Dennis Friedland Tracie Hoffman Kristin K. Laurin Susan E. Beal Myra Coleman Amy B. Friedman Daniel S. Hollman Laura Marie Lavelle Annamatesha Nicola Beason Elizabeth Condren Matthew Adam Friedman Joshua A. Holzer Jeremy Lechtzin Michael Beck David E. Conroy Bennie Fritsch Cindy L. Horesh Erika Lee Ramsey N Beck Barry A. Cooper Gregory D. Frost Aya Horikoshi Tiffani Yoonjung Lee Andrew M. Behrman Michael L. Corbett Sharyn Jacob Gallatin Inger K. Hultgren Ari Nathan Lefkovits Howard L. Beigelman Selene H. Costello James C. Gange Nadine Michelle Hunt Stacy B. Lefkowitz Anna E. Benenson Jason Samuel Cowart Paula E. Garfinkle Sheila Hurley Ronald Joseph Leinen Brandon Cowles Bentley Julia K. Cowles Philip M. Garthe James M. Ingoglia Jeffrey Peter Lejava Kathleen A. Bergin J. Barry Coyle Mark Gatto Ignatius E. Inofomoh Stacie Joy Leonard Geoffrey Douglas Berman Jennifer Amy Cramer Robyn Michelle Gemeiner Kokayi Mamau Issa Scott M. Lerman Jennifer S. Berman Melissa A. Crane Stefania Rachelle Geraci Andrew M. Jackson John C. Lettera Lana D. Berman Karen K. Crew Alice Joy Gerstel Gabriel B. Jacobson Stuart C. Levene Eric Howard Blinderman Earl M. Crittenden Michael A. Gilbert Jameel Jaffer David Levenson Ian R. Blum Roberto Cuan Wendy M. Gindick Olga B. Jobe Matthew Scott Levine Eli M. Bobker John Luke Cuddihy Thomas W. Giovanni Brian A. Johnson Gabriel Levinson Justin Lee Boisseau Thomas M. Curtis Michael Giovanniello Jack L. Johnson Ted M. Lewis David E. Bolen Adam M. Dambrov Carrie Giovine Kalyn J. Johnson Jeffrey Chun Yin Li Carrie Anne Bond Mireya C. D’Angelo Ronald H. Gitter Shirin Johri Chris Lieu Lisa M. Bornstein Jonathan William Davenport Stephanie B. Glaser Cleo Anita Jones Susanne Jeeun Lieu James Andrew Bove Hilla D. David Jonathan Daniel Glater Jonathan Steven Joshua Christopher E. Lim Gene Boxer Samuel Bradford Davol Daniel C. Glazer Suzanne L. Joyce Timothy Eric Lin Andrea R. Brahms-Shiffman Guillaume H. De Sampigny Lara Jane Glazier Michelle Neely Jubelirer Rebecca A. Lindhurst Tami J. Bregman Horacio Maria De Uriarte Mathew Port Glazier Michael Paul Jurgens Gregory B. Linkh Katia Brener Stephen L. De Vore Lisa L. Gokhulsingh Karen Idra Kaiser Alana Brett Liveson Ron M. Brill Stephanie A. Dean Jennifer Joy Goldberg Julie E. Kamps Mary Logan Axel Brinkhoff Ivette Delacruz Nicholas Stoloff Goldin Isatu Kanu William Loman Peter F. Broderick Lauren L. DeLotto Maksim Goldman David Jeremy Kaplan Ivan B. Loncar Edith Brous Deanna Lynn Deluise Adi K. Goldstein Omar Karim David Jochen Lorenz Christopher Michael Brown Nisha M. Desai Michelle I. Goldstein Kimberly T. Katcher Randall Thomas Lowe Mark S. Brown Gloria G. Gonzalez Theodore John Katopis Justin Lu

Journal | November/December 2000 55 David D. Luce Michelle Ann Palmer Ambika Sharma Thomas Feng Wong Meir Morgulis Margot L. Ludlam Ju-hsin Pan Francis Scott Shea Lulu Wu Tamara T. Mosby Walter Michael Luers Dinusha Nihara Brenda Sherman Karyn J. Yaffee Philip Reed Moustakis Avram Emmanuel Luft Panditraratne Denise Elizabeth Minglu Yan Gina L. Natale Jay D. Lukowski Diego Esteban Parise Singh-Skeete Alex Keunmo Yang Neil S. Natale Christine Lutgens Susan Kee-Young Park Julie F. Sitler Jung Hye Yeum Ranjana Natarajan Judith Marie Elisabeth Christina Marie Parker Singman Siu Jinhy Yoon Vadim A. Nebuchin MacFarlane Kim M. Parker Mark D. F. Skinner Susan S. You Shulamit Neuman Marko C. Maglich Heather Noel Pearson David Smagula Lester Yudenfriend Scott Charles Occhiogrosso Matthew J.X. Malady Melissa Joy Pecherski Lisa C. Solbakken Carlo Zacchia Timothy P. O’Dea Carmen-Nedda S. Malhotra Katherine Perimenis Panayiota George Souras Ivette M. Zelaya Michael H. Oliver James Constantine Mallios Adam B. Perri Stephanie E. Sowell Fangmei Zhao Ojediji A. Olugbodi Dennis Michael Manfredi Amanda Mandita Persaud Scott A. Spence Michelle E. Zierler Mark Christopher Orlowski Laura N. Mankin Philip John Pilibosian Gina A. Spiezia Nachman Y. Ziskind Kusuma Pandula Michael David Mansolino Jamie S. Platto Jonathan G. Spisto Avram H. Zysman David A. Pascarella Sandra L. Manthe Francoise M. C. Plusquellec Moira Anne Spollen Joseph Paterno Jennifer L. Marino Kelly J. Poff David J. Sreter SECOND DISTRICT Jennifer J. Pearson Deborah L. Mark John Michael Pollack Diana St. Louis Oladipo Cole Akinola Mark Petre Lori Mason Caroline Marie-Luise Presber Julie Bible Steamer Ayisha A. Amjad Jaime D. Pollack Danielle Pilar Matamala Lee Solomon Presser David Samuel Stecklow Ella I. Argaman Alyssa Anne Qualls Patrick D. Mccabe Geraldina Assunta Pucillo Dori Ann Steir Cynthia I. Averell Katrina D. Rainey Coreen McGowan Munir Pujara Michelle Stevenson Mirsade Bajraktarevic Joseph John Reilly Kimberly Jane Mcgraw Judith Lynne Radding Eric Paul Stoppenhagen Roberto Barbosa Philip C. Rosen Catherine A. McHale Victoria S. H. Raikes Nelly Stotland Angus James Bell Jordan Rossman Richard Thomas Mckilligan Anita Meena Raman Ryan N. Sudol Irina Benfeld Anthony R. Ruscigno Joseph J. McMahon Kripa A. Raman Laura Alison Suesser David A. Bondy Raphael Rybak Kiameshia McPherson Jaikumar Ramaswamy Hyoung-sil Suh Alan I. Brutten Dory Salem Charlotta Christina Meder Fernando J. Ramirez Sean Sullivan Benjamin S. J. Burman Gabrielle Sbano Brendan S. Mee Leticia M. Ramirez Reed Super Milagros Cerrud Jennifer A. Schaefer Tasneem Datoo Meghji Daniela Raz John K. Sweet Monte Malik Chandler Hillary Elizabeth Schaeffer Aseem V. Mehta William Michael Regan Amy Lynn Sykes Vernita Cecilia Charles Gill S. Schapira David Andrew Mersh Marc D. Reid Nicole Michelle Sykes Kirby Clements Benjamin Israel Schneider Matthew A. Michaels Daniel James Reiser Brian Marc Taddonio Christine D’Ambrosia Carlo A. Scissura Jessica L. Michaelson Yunan Ren Vincent W. Tam Lisa A. Davis Norman Seidenfeld Suzanne Mikos Carmen Rita Restivo Rachel Swee-hua Tan Daniel A. Deluna Dwayne Sims Sven O. Milelli Michael Reyes William C. Taplitz Linda Devereaux Mark D. Singletary Matias Claudio Luis Milet James G. Richards David Aaron Jeremy Telman Gregory E. Devine James Mcgregor Smyth Diane Leslie Millar James Inkyo Rim Sabine Terzija Tamara Miriam Edelstein Alexandria C. Spanakos Frances S. Mingoia Hui Chun Rinker Pia K. Thompson Robin M. Eichel David Spiegelman Bryan H. Mintz Adam E. Ritholz Martha S. Thrush Michael M. Elbaz Kenneth St. Bernard Douglas Stephen Mintz Thomas Jamie Rizzuto Mark J. Tibaldi William O. Enobakhare Susanne C. Stark Kate B. Mitchell Sondra M. Roberto Denise M. Tomasini Elizabeth M. Fitzgerald Irene Stein David Y. Monassebian Christopher V. Roberts John Joseph Tomaszewski Gregory A. Flood Serena M. Stonick Rebecca A. Monck Karen L. Rodgers John D. Tortorella William John Foley Daphnee Surpris Anna Cristina Moody Christoph Jahannes Albert Tylis Kimberly Forte Emily Sweet Marissa L. Morelle Roggenkamp Eric Pope Van Allen Clement A. Francis Symone E. Sylvester Michael Daniel Morici Bridget Michael Rohde Marisa Delia Vandongen Pamela E. Garas Teresa Krystyna Szymanik Erik Robert Morris Jonathan A. Rosen Sandra Viana Cameron W. Gilbert Joseph Treff Lise Champagne Morrow Georgina Rotenberg Nicholas F. Vianna Maria T. Giresi Isabel Truyol Michael J. Morton Theodore Rothman Mathiew Vignon Tomas Greenberger Karen P. Turner Bruce C. Moses Douglas Wingate Royce Dennis Vinokurov Joanna C. Greenwald Amy Tyson David Garcth Moss Abigail Anne Rubinstein Peter C. Voorhees Shprintzy S. Gross Archana Unni Katharine J. Mueller Linda F. M. Salamon Eric M. Wagner John M. Guerriero Nicholas Voglio Lisa F. Muller Anna E. Salek Amanda Leigh Wallace Lesley Anthony Hall Michael J. Wasser Alma Jean Murcia Ashley L. Salisbury Joseph Ross Wallin Charles J. Hargreaves Karen Antionette Webber Jeffrey N. Myers Mark A. Samuel Richard M. Wartchow Gary Thomas Harker Janice B. Webster Ian Ross Nelson Anne Lachenal Santos Eva Shanda Wayne David Eliot Hoffman Deborah Anne Widiss Timothy G. Nelson Nuno M. Santos Beth K. Webber Abraham J. Kahan Tayfun Can Yalcin Lucy Charlotte Newman Edward V. Sapone Naftali A. Weg Elena Kasambalides Michael Seth Zamore Michael J. Newman Matthew F. Sarnell Eric D. Weinstock Seth I. Katz Robert Zonenshein Michelle Lisa Newman Garreth A. Sarosi Leslie Wells Louis H. Klein Melissa F. Nook Andrew Savitz Daniel E. Wenner Noson A. Kopel THIRD DISTRICT Andrew Jon Noreuil Jeffrey R. Schoen Christopher Lee West Amanda D. Koskinen Michael J. Altieri Eric Dale Novak Amy Beth Schramm Joan Susan Wharton Danice M. Kowalczyk Keiki-Michael Cabanos Francis J. Nyhan Hillary Ada Schwab Andrew Stephen White Robert F. Kuzloski Maria L. Colavito Kevin T. O’Brien Michael A. Schwartz Katherine Allison White Lawrence Pierre Labrew Jenika Conboy Justin Laurance Ochs Michael Adam Schwartz Lucien D. White Shari Laskowitz Thomas E. Dolin Charles Peter Oconnor Jennifer Michelle Schweiger William R. White Madelynn Liguori Daniel Eric Dubois Edward J. O’Donnell Kathleen Regina Schweitzer Sarah E. Williams Sonia I. Lizan Lea A. Ermides Irwin Russell Oken Thomas Patrick Scully Amy Wilson Hiram Lopez Nater Jonathan P. Francis Kevin G. W. Olson Christopher Serkin Louis Donlan Wilson Charles J. Markey David A. Gonzalez Akiko Ono Melina Sfakianaki John Fabian Witt Richard H. McCarthy Sandra F. Gordon Michael O’Reilly Andrew G. Sfouggatakis Jarret Michael Wolfson Edna T. McGoldrick Nathan G. Hand Dalia Nabil Osman Alexandra A.E. Shapiro Albert Wong Samuel N. McLamore Lisa Nicole Hanselman Deirdre Hidy O’Sullivan Edward Gellert Shapiro Sandra W. Wong Giovanni C. Merlino Andrew S. Jacobs Joanne L. Oweis Peter Deforest Shapiro Tat C. Wong Diana Morgan Evelyn D. Jose

56 Journal | November/December 2000 Doris J. Kullman NINTH DISTRICT Darian B. Taylor Arshad Majid Michael J. Callaghan Nathaniel G. Lambright Elizabeth M. Altman Jeanne Tompkins Alicia M. Menechino Dennis M. Cariello Carey-Anne Moody Gundars Aperans Michael E. Uhl Robert Mescolotto Carol Cheng Michael R. Palmieri Abbie G. Baynes Swathi Vardan J. Stewart Moore Michael J. Ciaravino Elizabeth Corliss Sacco Barry G. Bell Jennifer L. Zacharczyk Laurette D. Mulry Delmas A. Costin Richard L. Schannen Joan T. Blum Rudolph O. Zodda Wendy J. Musorofiti Nicholas J. Cremona Herbert P. Segarra Karen Devlin Brandon David C. Nevins Lisa Damkohler Matthew E. B. Brotmann TENTH DISTRICT Shara J. Newman Jill Dinneen FOURTH DISTRICT Linda M. Cabral Vincent P. Adomaites Kerry A. O’Connor Lisa Eulau Richard H. Brown Kristine M. Cahill Leslie E. Anderson Anthony M. Parlatore Mario E. Ferazzoli Louis W. Chicatelli Georgann M. Callaghan Algis Anilionis Jason G. Parpas Giovanna M. Ferdenzi Tony Fisher Marilyn-Joy Cerny Howard A. Balsam Gary W. Patterson Jill D. Frohnhoefer Avery B. Goodman Andrij B. Cichowlas Robert Peter Baquet Michael S. Paulonis Sara Jennifer Fulton Scott M. Goodspeed Diana Marie Clarke Christopher J. Barletta Cassandre H. Pelissier Paraskevi Georgiou Kimberly A. Harp Jennifer M. Cottrell Robert J. Barry Jonathan E. Peri Constantine C. Giannakos Justin P. Jiron Vincent Cuono Scott A. Bayer Alexander D. Phillips Jeffrey L. Goldberg Jane G. Larock Jeannine M. Davanzo Dennis D. Belline Jennifer Lynn Ploetz Zoraida E. Gonzalez Daniel J. Mannix Robert P. Degen Vincent Bianco Craig L. Price Armine Grigyan Richard Todd Nathan Joan Delaney Alyssa F. Bomze Anne M. Rago Heidi Grissett Deanna L. Siegel Tina Marie Fassnacht Charles Bonfante Maria Ramirez Rimma Guberman Barbara D. Tallon Loren L. Forrest Angelo J. Bongiorno Callie Razis Mark A. Hakim Richard F. Youmans Noreen L. Freeman Barry E. Breen David J. Re Elizabeth S. Hall Robin Persky Freimann Nathan Breslauer Pietrina J. Reda Chang S. Han FIFTH DISTRICT George W. Galgano Natalie P. Bruzzese Justin M. Reilly Elissa Heinrichs Justin Cecil Barth Melissa M. Gilbon Michael V. Buonaspina Aubrey E. Riccardi Adam Demian Hellman Mary Anne Cody Wendy J. Greenberg Patricia Burden Robert A. Robinson Heidi J. Henle Christopher J. Harrigan Joan Greenhut-Wertz Brant B. Campbell Burton Evan Rocks Jairo E. Jimenez Lisa M. Lambert Caryn Lee Grizelj Harold A. Campbell Susan A. Rubin Pascale Joasil Timothy J. Lambrecht Keith C. Hauprich Steven C. Capobianco Molly M. Rush Judy Ju Young Kang Leslie E. Lo Baugh Gwinett E. B. Ho-Sang Patricia D. Caruso John E. Russel Panayiota C. Kilaras Peter J. Osredkar Karen J. Hogan Pauline T. Castillo Jeffrey P. Rust Uygar C. Konur N. Jonathan Peress Kimberly Hunt Frank A. Cetero Ilene P. Sacco Jennifer A. Labate Adriana D. Rouselle Lorraine Izzo Barbara E. Cohen Jason S. Samuels Jong Jae Lee Mark R. Schlegel John Haddon Jordan Christopher J. Coiro Francesco Sardone Anne Laurie Lewis Joseph M. Wentland Kathleen M. Joyce William T. Collins Michael Thomas Savelli Shuaiyu Li Christopher P. Jurusik Craig R. Cooke Joseph C. Sette Weirong Lin SIXTH DISTRICT Sumiko Kanazawa Kathleen A. Costigan Mitchell M. Shapiro Matthew A. Lyons Rita M. Belk Arvind Khurana Christine A. Cullen Harry A. Shehigian Christina M. Madden Walter G. Buble Catherine Irene Lee David J. DeBaun Sara A. Shindel Mina Quinto Malik Sharon M. Carberry Howard Leitner Francis J. Hunt DeRosa Heather S. Siegel Regan McGorry Richard A. Franklin Steven L. Lichtenfeld Michael C. Dunn Stephen C. Silverberg Robert Mijuca Glenn G. Galbreath Jessica L. Lowrey Michael Patrick Dunne Lori B. Sklar Albert D. Mitzner Peter G. Masullo Gina Marie Lyons Brian T. Egan Craig L. Smith Lila Nebrat Christopher J. Moran Regina G. Massey Kimberlie A. Fiero Catherine L. Soo Jennifer S. Ng Amanda Camilla Louise Vig Anne H. McAndrews Joseph A. Gatto Johanna M. Stewart Charles Ubaka Odikpo Thomas C. McGregor Lawrence J. Germano Glen A. Suarez Karen M. Ortiz SEVENTH DISTRICT Robert A. Mendelsohn Debra S. Gibgot Stefani L. Tartamella Monica Ines Parache Karl V. Anderson Douglas M. Miller Amy L. Goldberg James L. Tenzer Jean-pierre N. Passerieux Matthew David Brown John D. Minehan Judith P. Goldberg Robert S. Tepper Katrina Patterson Craig Brownlie Alvin D. Nelson Jeffrey L. Goodman Patrick Timlin Richard J. Pokorny Brian R. Henzel Wendy L. Nolan James M. Greenberg Palma Torrisi Sujit Mahbybani Ramchand Victoria A. Knox Yejide Oyinjansola David S. Greenhaus William L. Veronese Joan A. Reyes Michael P. Leone Okunribido John S. Grizzel Marc S. Voses Mary B. Rocco Joseph Jude Valentino Randal J. Pesce Douglas Eric Groene Stephanie N. Voses David Rong Charles N. Zambito Dawn M. Portney Dawn Hargraves Val E. Wamser Joshua A. Rosenbaum Evans D. Prieston Paul W. Haug James E. Wei Benjamin J. Rosof EIGHTH DISTRICT Blake W. Reed Thomas Hans Henke Randall C. Weichbrodt Frank J. Rubino B. Kevin Burke Charles A. Reinwald Timothy P. Higgins David S. Weisel Jose Albato Saladin David Phillip Chadwick Erica M. Ricciardi Laureen Marie Hintz Learie R. Wilson Matthew W. Saliba Matthew David Clabeaux Thomas P. Riozzi Bonnie L. Huber Douglass A. Wistendahl Violet E. Samuels Robert K. Duerr Brett E. Roberts Christopher R. Invidiata Richard V. Zanzalari Dawn M. Schwartz Mary Jo Evans Michael J. Romer Christopher A. Jeffreys Jacqueline Zion William B. Scoville Thomas E. Fowler Sophia A. Rutty Rose Angela Kalachman Michael A. Zone Subrata Sengupta Mary B. Ilardo James B. Ryan Steven R. Kartzinel Veronica Seoane Rachel E. Jackson David R. Sachs Shawn R. Kassman ELEVENTH DISTRICT Sol Z. Sokel Amy M. McCabe Richard J. Sandor Martin Katzman Robert G. Abruzzino Stacey R. Sturm Timothy A. McCarthy Heather Alexandra Scanlon Argyria A. N. Kehagias Josef F. Abt Christine Thomson Robert P. McGraw Norman D. Schoenfeld Taihee Kim Karina E. Alomar Sandra M.Tilotta Alison Lorraine Mical Boris Serebro Amy L. Kiritsis Gene T. Anton Peter Tufo Christopher J. MiKienis Ross G. Shank Alicia J. Klat Jason Bassett Jennifer A. Walters Joseph A. Muscato Milton B. Shapiro Gregory J. Kozlowski Mary L. Bejarano Joane Si Ian Wong Brandon A. Portis Susan H. Shapiro Thomas C. Kratzer Amy Marie Benison Lillian Wong Mariella Stravalaci-Mikienis Aashmita V. Shravah Mindy Hope Krauss Abraham Bennun Shiqing Yue Jonathan Patrick Taber Joseph M. Sorrentino Arthur S. Laitman Gregory A. Blackman Edward Zaloba Shannon E. Woods Karen E. Storzieri Robert P. Lazazzaro Michelle Loraine Blackman Hongye Zhao Linda G. Swann Henry Lung Elisa Brewi Marcie Sara Zwaik Sabine Browne

Journal | November/December 2000 57 TWELFTH DISTRICT Iris Ting-lan Chung Honora Margaret Keane Amanda N. Palmer Ioannis Stamoulis Dale S. Cooper Matthew S. Clifford Nancy S. Keller Lindy Michelle Paoff Jefferson G. Stanley Vincent B. Davis Noam Jay Cohen Christopher P. Kelly Adam S. Paris David Stein Jordan M. Dressler Todd Matthew Coltman David Charles Kelly Jenny Park Hillary R. Stein Joelle N. Duval Mark A. Cymrot Euihyung Kim Louis Anthony Pellegrino Mary Margaret Street Tyreta Elizabeth Foster Yumi Daimaru Mark H. Kim Scott Pepin Jeffrey V. Stripto Fidel E. Gomez Charles Edward Davidow Karin Kizer Anna P. Pereira David G. Sullivan Robert Hort Amanda Christine Denaro Ronald S. Kloor Donna Marie Perrette Drew Johnston Sundberg Jennifer M. Jackman Karen Anne Denys Brian J. Koo Ingrida D. Perri Stacey Kim Sutton Maryanne Joyce Todd A. Denys Amanda L. Kosowsky Jeffrey A. Petit Adam P. Sweeney George Stanley Kokkalenios Lisa M. DeRose Mira M. Kothari Whitney D. Pidot Seung-Kook Synn Felicity Lung Jillana Devine Jennifer Kraber Tanya Elise Ponton Handoko Taslim David V. Marrone Dawn Dezii Elizaveta Krukova David M. Pouso Valentina Maria Tejera Ululy Martinez Kenneth P. Dipaola Peter Kam Ki Lam Lucy Prashker Damon A. Terrill Alice Paucker Dean J. DiPilato Lucio Lanucara Elina Hum Pratt John A. Tessensohn Seanan L. Reidy William M. Dobishinski Robert Francis Lawrence Nicole Micheline Prefontaine Matthew Justin Tharney Ivonne S. Santos Marion S. Donica Jill Anne Lazare Francis A. Preite Tini Thomas Stacy Meredith Schneider Carol S. Doty David Wagener Leary Christine A. Ragonesi Nathalie Diane Tinti Juan D. Soto Gerald Parker Dwyer Lloyd P. Lederman Jill Ecell Ramsey Mary H. Trainer Debra A. Symulevich Leah Edwards Christine Lee David Reed Mimi Emma Tsankov Ghenete Elaine Witter Zadok Eli Jong-Hoon Lee Michael Paul Reed Bernard Turiel Wright Paulette B. Fagen Wei Foong Lee Patricia A. Remer John N. Ubani Faye A. Yelardy Ephraim Jacob Fink Ann Marie D. M. Leikauf Jeffrey M. Ricapito Lori Ann Urs Marc E. Fishman John R. Leith Edward W. Rich Marcos Valente OUT-OF-STATE Ricardo Alberto Flores Joseph P. Leon Enid Yolanda Rivera Jonathan Hendrick Van Ee Nada Issam Abdel-Sater Kelly Anne Flynn Juliana Leschinsky Dong Hwan Ro Larry Victorson Chizoba Ngozi Adegwe Victoria Anne Flynn Pearl M. Lestrade-Brown Lilach Ester Elizabeth T. Vilarin Moriam Adio James Michael Foerst John Lin Robinson- Abergel Luis Felipe Vilarin Dukgeun Ahn Roger A. Fortuna Helen Livanios Richard R. Rodgers Sven Benedikt Volcker Natasha N. Aljalian Constantine D. Fotopoulos Gregory D. LoGerfo Kelly Rodriguez Darren S. Walsh Blair J. Allen Eli A. Franks Thomas M. Lorek Mandy Roth Jeffrey Greg Weiss Mark J. Anson Yasuhiro Fujie David Ma Stella J. Rozanski Peter B. White Gary E. Apps David Don Galluzzi Isabel R. Machado Steven Mitchell Rudner Derrick Reuben Williams Craig A. Artel Jason Isaac Garbell Barry N. Machlin Peter B. Sanchez Marcus Patton Williams Malin E.M. Arvling David A. Geary Erin P. Madill William J. Sands Gareth W. Wilson Amjad Hashem Atallah Dominique A. Geller Kathleen A. Maloney Brett J. Schneider Jerome L. Wilson Nicholas Atkinson Joanne J. Giger Beth Megan Mantz Joseph Schneider William S. Wolfson Thomas D. Atkinson Daniel E. Glatter Jason Adam Mark Michael S. Schwefel Kerby John Wright John Henry A. Ayanbadejo Evan S. Goddard Maria V. Martin Kinda Serafi Tina Wustemann Deborah Bari Baker Orlee Goldfeld Armando J. Martinez Benitez Joseph H. Sherman Antigone Yanniotis Rita Barnett David C. Goldstein Thomas John Matz Rebecca Caren Shore Daniel R. Yelin Mirari M. Barriola Lee Gary Grabel Cynthia S. Mazur Harvey J. Simon Hock Loon Yong Troy A. Barsky Kenneth A. Grant Michael E. McChesney Sujithra Sivendra Matthew Agnelli Zaolino David Allan Bauer Scott Alexander Grant Kathleen A. Mcentee Andrew L. Smith Silvia Ines Zerdan Jeffrey Marc Benjamin Brian J. Green Rudolph M. D. McGann Brian D. Smith Hong Zhang Francois F. Berbinau Deborah Seltzer Griffin Alison L. McKay Adam W. Snukal Michelle Tamara Zinman Daniel A. Bernstein Ronald Grinblat Catherine M. McKenna Michelle S. Sobel Jasna Zwitter-tehovnik Eileen Ann Beshay Gregg C. Grunstra Robert J. McNish Richard Christopher St. John Priya N. Bharratt Matthew P. Grupp Christopher F. Meatto William C. Bieluch Jing Gu Robert P. Meier Michael Z. Bienenfeld Cholsoo Han Pamela G. Meisel Sharon Blitzer David M. Harvilicz Christopher Meisenkothen Jennifer Lynn Blum Dupree P. Heard Carolyn Meltzer Craig A. Borgen Peter John Heck Stacey Blythe Menaker In Memoriam Maria Rosario Boscio Martha Heinze David C. Miller Lewis L. Bossing Murphy B. Henry Douglas McKinley Miller Joseph D. Bermingham James F. Glynn John Mcleod Bradham Michael J. Hernandez Fabien Pierre Mirabaub Buffalo, NY Rochester, NY Terryann Kateri Bradley Antoinette Patricia Hinds Damon Scott Monterisi Laura A. Brill Buckley Patrick Hollister Jennifer L. Morris J. William Burke Alfred L. Haffner Leonard Dawes Brown David Bruce Hoppe Kevin Michael Morris Scotia, NY New York, NY Carla Nan Buchalter Jeffrey D. Houser Arpita Gihatak Mukherjee John A. Burns Percival D. Oviatt Lee W. Nabb Ingrid Busson Kathleen Yen Hsu Mineola, NY Rochester, NY Liberty F. Cagande Zaichi Hu John S. Nargiso Michael S. Caldwell Eric Hudson Hideki Nasu George E. Carmody Philip A. Rayhill Danielle Lisa Cannata Kevin Kitt Hull Jennifer Goodman Nelkin New York, NY New Hartford, NY Kristen Capogrosso Naomi J. Ishikawa Andrew Richard Newberry Herman Clurman Edward J. Schultz Elaine M. Carinci Maya Issacharov Stephanie Ruth Nicolas Hicksville, NY White Plains, NY James P. Carlon William Covington Jackson John Fitzgerald O’connell Richard Q. Devine William C. Warren Thomas Brager Carlsen Christine Patricia James Stephen F. O’Beirne Norwich, NY New York, NY Paul Rosario Castronovo Ketan Priyavandar Jhaveri Margaret C. O’Dowd Patrick Sean Caughey Leonard Jeffrey Johnson Endy Paul Okoye John P. Dugan Howard S. Wolfson Candace Cape Cavalier Tommi Heikki Juusela Rigel Christine Oliveri Ridgefield Park, NJ New York, NY Linda Cerra Jerome J. Kaharick Ijeoma Ihuaku Opara Dan G. Farano May Yuen Chan Benjamin M. Kahrl Dieter H. Paemen Troy, NY Evelynne O. Change Kathryn Anne Kasper Rajesh Pahuja I-Ju Annie Chen Nile Kaya Karen Lynn Palestini

58 Journal | November/December 2000 Jean E. Nelson II, Associate Director, Emil Zullo, Assistant Director, [email protected] [email protected] HEADQUARTERS Jean Marie Grout, Staff Attorney, Lawyer Assistance Program [email protected] Ray M. Lopez, Director, [email protected] STAFF Leslie A. Fattorusso, Staff Attorney, Management Information Systems [email protected] John M. Nicoletta, Director, E-MAIL ADDRESSES Cheryl L. Wallingford, Program Manager, [email protected] [email protected] Ajay Vohra, Technical Support Manager, Daniel J. McMahon, Assistant Director, [email protected] Publications, [email protected] Paul Wos, Data Systems and Telecommunications Executive Staff Patricia B. Stockli, Research Attorney, Manager, [email protected] William J. Carroll, Executive Director, [email protected] Marketing [email protected] Governmental Relations Richard Martin, Director, John A. Williamson, Jr., Associate Executive C. Thomas Barletta, Director, [email protected] Director, [email protected] [email protected] Media Services and Public Affairs L. Beth Krueger, Director of Administrative Ronald F. Kennedy, Assistant Director, Bradley G. Carr, Director, Services, [email protected] [email protected] [email protected] Kathleen R. Baxter, Counsel, Graphic Arts Frank J. Ciervo, Associate Director, [email protected] Roger Buchanan, Manager, [email protected] Lisa Bataille, Administrative Liaison, [email protected] Amy Travison Jasiewicz, Editor, State Bar News, [email protected] William B. Faccioli, Production Manager, [email protected] Kathleen M. Heider, Director of Meetings, [email protected] Membership [email protected] Human Resources Patricia K. Wood, Director, [email protected] Accounting Richard V. Rossi, Director, Pro Bono Affairs Kristin M. O’Brien, Director of Finance, [email protected] Vacant, Director [email protected] Law Office Economics and Management [email protected] Anthony M. Moscatiello, Controller, Stephen P. Gallagher, Director, [email protected] [email protected] Continuing Legal Education Law, Youth and Citizenship Program Terry J. Brooks, Director, Gregory S. Wilsey, Director, [email protected] [email protected]

OURNAL OARD THE NEW YORK J B EMBERS BAR FOUNDATION M EMERITI

s a tribute to their outstanding service to 2000-2001 OFFICERS DIRECTORS Aour Journal, we list here the names of Richard J. Bartlett John P. Bracken, Islandia each living editor emeritus of our Journal’s President Cristine Cioffi, Niskayuna Board. 1 Washington Street Angelo T. Cometa, New York City P.O. Box 2168 Richard J. Bartlett Maryann Saccomando Freedman, Buffalo Glens Falls, NY 12801-2963 Coleman Burke Jules J. Haskel, Garden City Emlyn I. Griffith John C. Clark, III Vice President Paul Michael Hassett, Buffalo Angelo T. Cometa 225 North Washington Street John R. Horan, New York City Roger C. Cramton Rome, NY 13440-5724 Susan B. Lindenauer, New York City Maryann Saccomando Freedman William J. Carroll Robert L. Ostertag, Poughkeepsie Emlyn I. Griffith Secretary Maxwell S. Pfeifer, Bronx H. Glen Hall Charles F. Krause One Elk Street, Albany, NY 12207 Joshua M. Pruzansky, Smithtown Philip H. Magner, Jr. Randolph F. Treece Thomas O. Rice, Brooklyn Treasurer Wallace J. McDonald M. Catherine Richardson, Syracuse Office of State Controller J. Edward Meyer, III Alfred E. Smith Office Bldg. Hon. Shira A. Scheindlin, New York City Robert J. Smith Legal Services, 6th Floor Justin L. Vigdor, Rochester Lawrence E. Walsh Albany, NY 12236

60 Journal | November/December 2000 Members of the House of Delegates 2000-2001 First District Third District Eighth District Alcott, Mark H. Agata, Seth H. Attea, Frederick G. OFFICERS Auspitz, Jack C. Ayers, James B. Church, Sanford A. Baker, Theresa J. Bergen, G. S. Peter Dale, Thomas Gregory Barasch, Sheldon Cloonan, William N. Eppers, Donald B. † Bing, Jonathan L. Connolly, Thomas P. Evanko, Ann E. † Bowen, Sharon Y. Copps, Anne Reynolds Freedman, Bernard B. Brett, Barry J. Flink, Edward B. †* Freedman, Maryann Saccomando Paul Michael Hassett, President Cashman, Richard Friedman, Michael P. Gerstman, Sharon Stern Chambers, Hon. Cheryl E. Helmer, William S. Graber, Garry M. Buffalo Christian, Catherine A. Kelly, Matthew J. + Hassett, Paul Michael * Cometa, Angelo T. Kennedy, Madeleine Maney McCarthy, Joseph V. Steven C. Krane, President-Elect Davis, Evan A. Kretser, Rachel O’Donnell, Thomas M. New York DeFritsch, Carol R. LaFave, Cynthia S. Omara, Timothy Eisman, Clyde J. Lagarenne, Lawrence E. Palmer, Thomas A. Frank M. Headley, Jr., Treasurer Eppler, Klaus Maney, Hon. Gerard E. Pfalzgraf, David R. * Fales, Haliburton, 2d Murphy, Sean Webb, Paul V., Jr. Scarsdale Field, Arthur Norman Netter, Miriam M. Lorraine Power Tharp, Secretary Finerty, Hon. Margaret J. Samel, Barbara J. Ninth District Flood, Marilyn J. Swidler, Robert N. Aydelott, Judith A. Albany * Forger, Alexander D. Tharp, Lorraine Power Berman, Henry S. Freedman, Hon. Helen Tippins, Timothy M. Galloway, Frances C. * Gillespie, S. Hazard * Williams, David S. Gardella, Richard M. Goldstein, M. Robert * Yanas, John J. Giordano, A. Robert Gross, Marjorie E. Golden, Richard Britt Handler, Harold R. Fourth District Headley, Frank M., Jr. Handlin, Joseph J. Clements, Thomas G. Herold, Hon. J. Radley * Heming, Charles E. Eggleston, John D. Klein, David M. Hirsch, Andrea G. Elacqua, Angela M. Kranis, Michael D. Vice-Presidents Hoffman, Stephen D. FitzGerald, Peter D. Longo, Joseph F. First District: Horowitz, Steven G. Higgins, Dean J. Manley, Mary Ellen Stephen D. Hoffman, New York Jacobs, Sue C. Hoffman, Robert W. Miklitsch, Catherine M. Jacoby, David E. Hoye, Polly A. * Miller, Henry G. Kenneth G. Standard, New York Jaffe, Barbara Jones, Matthew J. Mosenson, Steven H. Second District: Kenny, Alfreida B. Keniry, Hon. William H. O’Keeffe, Richard J. Edward S. Reich, Brooklyn Kilsch, Gunther H. Tishler, Nicholas E. * Ostertag, Robert L. * King, Henry L. Scherer, John K. Third District: Kougasian, Peter M. Fifth District Steinman, Lester D. James B. Ayers, Albany + Krane, Steven C. Amoroso, Gregory J. Stewart, H. Malcolm, III Fourth District: Krooks, Bernard A. Bowler, Walter P. Walker, Hon. Sam D. Landy, Craig A. Buckley, Hon. John T. Wolf, John A. Matthew J. Jones, Saratoga Springs Leber, Bernice K. Burrows, James A. Fifth District: Lieberman, Ellen DiLorenzo, Louis P. Tenth District James F. Dwyer, Syracuse Lindenauer, Susan B. Doerr, Donald C. Abrams, Robert * MacCrate, Robert Dwyer, James F. Asarch, Joel K. Sixth District: Mandell, Andrew Fennell, Timothy J. †* Bracken, John P. Eugene E. Peckham, Binghamton Minkowitz, Martin Getnick, Michael E. Capell, Philip J. Seventh District: * Murray, Archibald R. Gingold, Harlan B. Corcoran, Robert W. Opotowsky, Barbara Berger * Jones, Hon. Hugh R. Filiberto, Hon. Patricia M. A. Vincent Buzard, Rochester * Patterson, Hon. Robert P., Jr. Klein, Michael A. Fishberg, Gerard Eighth District: Paul, Gerald G. Mawhinney, Donald M., Jr. Futter, Jeffrey L. Joseph V. McCarthy, Buffalo Pickholz, Hon. Ruth Priore, Nicholas S. Gutleber, Edward J. Quattlebaum, Poppy B. Rahn, Darryl B. Karson, Scott M. Ninth District: Raubicheck, Charles J. †* Richardson, M. Catherine Levin, A. Thomas Joseph F. Longo, White Plains Rayhill, James W. Sanchez, Ruthanne Meng, M. Kathryn Tenth District: Reiniger, Anne Uebelhoer, Gail Nackley Mihalick, Andrew J. Rifkin, Richard O’Brien, Eugene J. A. Thomas Levin, Mineola Rocklen, Kathy H. Sixth District †* Pruzansky, Joshua M. Eleventh District: Roper, Eric R. Anglehart, Scott B. Purcell, A. Craig Robert J. Bohner, Garden City Rothberg, Richard S. Denton, Christopher Roach, George L. Safer, Jay G. Drinkwater, Clover M. Rothkopf, Leslie Twelfth District: Schaffer, Frederick P. Hutchinson, Cynthia Spellman, Thomas J., Jr. Steven E. Millon, Bronx * Seymour, Whitney North, Jr. Kachadourian, Mark Walsh, Owen B. Shapiro, Steven B. Kendall, Christopher Silkenat, James R. Madigan, Kathryn Grant Eleventh District Sloan, Pamela M. Mayer, Rosanne Bohner, Robert J Souther, Eugene P. Peckham, Eugene E. Darche, Gary M. Members-at-Large of the Standard, Kenneth G. Perticone, John L. Dietz, John R. Stenson, Lisa M. Reizes, Leslie N. DiGirolomo, Lucille S. Executive Committee Vitacco, Guy R., Sr. Glover, Catherine R. Mark H. Alcott Wales, H. Elliot Seventh District James, Seymour W., Jr. Yates, Hon. James A. Bleakley, Paul Wendell Nashak, George J., Jr. Sharon Stern Gerstman Buzard, A. Vincent Wimpfheimer, Steven Michael E. Getnick Second District Castellano, June M. Matthew J. Kelly Adler, Roger B. Dwyer, Michael C. Twelfth District Agress, Vivian H. Getman, Steven J. Bailey, Lawrence R., Jr. Bernice K. Leber Cohn, Steven D. Heller, Cheryl A. Friedberg, Alan B. Susan B. Lindenauer Cyrulnik, Miriam Lawrence, C. Bruce Kessler, Muriel S. Dollard, James A. †* Moore, James C. Kessler, Steven L. Doyaga, David J. * Palermo, Anthony R. Millon, Steven E. Fisher, Andrew S. Reynolds, J. Thomas †* Pfeifer, Maxwell S. Lashley, Allen Small, William R. Schwartz, Roy J. Morse, Andrea S. Trevett, Thomas N. Torres, Austin Reich, Edward S. * Van Graafeiland, Hon. Ellsworth † Delegate to American Bar Association House of Delegates †* Rice, Thomas O. * Vigdor, Justin L. Out-of-State * Past President Sunshine, Hon. Jeffrey S. †* Witmer, G. Robert, Jr. Chakansky, Michael I. Terrelonge, Lynn R. * Walsh, Lawrence E.

62 Journal | November/December 2000 RES IPSA JOCATUR He pleaded that our children would be disappointed. CONTINUED FROM PAGE 64 “NAFTA,” he said, “needs one more page because Kris Kringle had written detailed information the drafters forgot to include Santa’s clause.” required by Customs in his declaration. His purpose for coming here, he wrote, was “pleasure,” Kris had no passport and no bills of lading and not to sell toys—he was not seeking treasure. for his toys or components. As the evening was fading All the toys that sat piled so high in his sleigh he was warned with Miranda just as the judge ordered, Kringle said he planned to just give away. and then was turned back across Canada’s border. But Santa’s not recognized (as he should be) And we heard him exclaim as he drove out of sight, 11 pursuant to 501 sub (c) sub (3) “You all have a right to sing Silent Night.” as a charity safe from the revenue code. 1. The case referred to in this article is fictitious, although Gift taxes were levied on all of the load. the references to the U.S. Code are correct. See also Truck- ers Face Safety Crackdown on Day Border Was to Open, New Kringle was sworn in, and said on the stand York Times, Dec. 19, 1995, p. B10. 2. 19 USC §§ 3301 et seq. NAFTA applies to U.S. trade with that the toys were all made on Canadian land. Mexico and Canada. It defines “Mexico” in § 3301(1) as 8 Assembled by elves in a workshop at night, “the United Mexican States” if the agreement is in force at the North Pole that’s lit by the cold northern lights. there. Kris Kringle’s one license must be poetic, 3. 19 USC § 3411. (The North Pole he spoke of must be the magnetic 4. In 49 USC 40102(a)(6). because at the true Pole—at ninety degrees 5. 25 USC § 500(a) permits the secretary of commerce to take reindeer by eminent domain and give them to “na- north latitude—one will find nothing but seas.) tive Alaskans.” However, that term includes descendants The magnetic pole is to what he referred, of those who inhabited Alaska in 1867 and apparently it because that’s in Canada—Kringle demurred. was unclear if Mr. Kringle qualified to hold reindeer under that definition. “No NAFTA duty is owed you because, 6. 49 USC § 40102(a)(7). my goods are Canadian under the laws.” 7. 16 USC § 670k(3). 8. NAFTA requires that labor standards in the exporting Kringle’s luck had run out—for the federal sage countries be similar to those in the United States, and in- had read all of NAFTA—all 2,000 pages.9 spectors could be sent to Santa’s Workshop Ltd. where “The parts in your toys were made, my good man, the toys were assembled to see if fair labor standards were employed there. Canadian officials had received in Pacific rim countries—Hong Kong and Japan.” complaints under their discrimination laws that Kringle It seems under NAFTA and its terms of art (d/b/a/ Santa’s Workshop) would not hire tall people or even those of average height. the whole’s less important than some of its parts. 9. C. Siegle, Report Card: World Trade, World Trade, June One thousand pages in total defined 1994, Vol. 7 No. 4, pp. 123-124. the formula three countries’ bureaucrats signed. 10. Id. See C. Russell, Tariff shifts and NAFTA, Global Trade It takes all those pages to figure what’s meant and Transportation, Vol. 11 No. 2, Feb. 1994, pp. 21-22. by NAFTA’s term “regional value content,” 11. If you cannot afford to carry a tune and a mortgage at the and “transaction value” and other mind numbers, same time, a caroler will be assigned to you free of charge. “bewildering reading” and all truly bummers. 10 “Unworkable ultimately,” say trade reporters. JAMES M. ROSE, a practitioner in White Plains, is the au- Still, Kringle was pinched by Ms. Grinch on the border. thor of New York Vehicle and Traffic Law, published by He summed in rambling phrases disjointed. West Group. Moving? Let Us Know . . . If you change the address where you receive your NYSBA mailings, be sure to let us know so you can stay informed. Send change of address and/or phone number to: Records Department New York State Bar Association 518-463-3200 One Elk Street, Albany, NY 12207 e-mail: [email protected]

Journal | November/December 2000 63 NAFTA’s Why Santa Claus RES IPSA JOCATUR Is Not Comin’ to Town

BY JAMES M. ROSE

n the Mexican border, Texas safety inspectors have “Wear lights on their skis if I follow your theory?” applied rigorous safety standards in an effort to Judge Smoot told Ms. Grinch, the chagrined prosecutrix, Oturn back the tide of Mexican trucks seeking to do “The government’s certainly up to some new tricks! business in the United States under the North American Toys may be carried by carrier pigeons, 1 2 Free Trade Agreement (NAFTA). The agreement pro- but they don’t become aircraft, not even a smidgen.” vides that regulations of the U.S. secretary of transporta- tion concerning the safety of vehicles entering the United “The means of propulsion for Kris Kringle’s sleigh States apply to those who seek to bring goods into this was actually reindeer, large mammals that weigh 3 country. quite a bit, and do not achieve aviation in Mexico, Canada or in this nation. On the night before Christmas when all was in order, ‘Reindeer’ are defined in an unhelpful way Kris Kringle’s sleigh was stopped at the border. in Twenty-five USC five hundred (j) Agents in kerchiefs and ear-flapped fur caps as ‘reindeer and caribou.’5 But it doesn’t say stopped his sleigh full of toys at a spot on the map in section forty thousand one hundred two (a),6 where Customs inspectors make travelers pause in the forty-ninth title (‘aircraft engines’ defined) to check that they’re complying with all of our laws. that Congress had caribou herds on its mind. Sue S. Grinch, an inspector, said “Something’s the matter And the magistrate simply could not fathom why with Kris Kringle’s sleigh and his toys, as the latter the government argued that reindeer could fly. failed some of the tests that exist under NAFTA, “There is one section of federal law while in prior years he knew he ‘didn’t hafta.’” that defines ‘off-road vehicles.’ Congress foresaw And, Sue Grinch said, “You can’t enter this nation the need for some guidelines for when snowmobilers ’cause your sleigh’s not equipped for air navigation.” drive off-road vehicles or use three-wheelers. But in snow or on sand or on land used by voters, The sleigh was just lit with a single red light 7 on the nose of a reindeer, and can’t fly at night defined ‘off-road vehicles’ all employ motors. unless it’s equipped with required transponders, A reindeer-drawn sleigh, it takes no erudition and the right-colored lights placed on Blitzen and Donner. to find, is not motorized by definition. The arraignment occurred in its proper progression, “If a sleigh hits a bump it may vault in the air, and Judge Hawley Smoot ruled at that evening’s session: but nobody makes one to navigate there. “The vehicle Kris Kringle drove was a sleigh. A sled’s not an aircraft that’s meant for the sky. It wasn’t an aircraft, this court holds today. Your argument—just like a reindeer—can’t fly.” ‘Foreign aircraft’ is a term defined in Forty-nine USC, Kringle, however, remained at the bar. at section forty thousand one hundred three (C). He had no passport. He said he lived far In that definition we are given directions away in a workshop he built near a shoal, To where ‘aircraft’ is defined in the previous section. assembling toys at the globe’s Northern Pole. A ‘contrivance invented, used,’ (the law recites there) “I don’t long for Florida as I grow older, ‘or designed to navigate or fly in the air.’”4 I want to live in a place that is colder.” A sleigh is not “aircraft,” the trial court opined, A stateless world citizen. (What could be dumber!) because it won’t “fly” as that term is defined. He said that he lived at the South Pole in the summer. If a sleigh hits a bump and just leaves the ground A doctor who testified to the reporter to judge that it’s aircraft’s not legally sound. said Kringle must have a bi-polar disorder. “Must Olympic ski jumpers,” her Honor then queried, CONTINUED ON PAGE 63

64 Journal | November/December 2000