Disarming Diplomat in a Rare Interview, Nobel Prize-Winner Mohamed Elbaradei (LL.M

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save the date! may 5, 2007 the magazine of the new york university school of law autumn 2006 were you in the class of Law School 1957, 1962, 1967, 1972, 1977, 1982, 1987, 1992, 1997 or 2002?

Whether you’re returning for your fifth, in this issue 10th, 15th or even 50th reunion this spring, Civil Procedure Rules: the Law School community looks forward A highly regarded cadre of to welcoming you back to Washington NYU faculty show students how Square. On Saturday, May 5, all returning to make the right legal moves. alumni are invited to attend academic panels, the Law Alumni Association awards Mass Appeal: luncheon and an elegant dinner dance. Top legal minds consider the pros and cons of Look for your invitation in the mail. Please class actions. call (212) 998-6470 or send us an email at [email protected] with any questions. Reunion ’07 Nonprofit Org. U.S. Postage PAID Bohemia, NY Office of Development and Alumni Relations Permit No. 338 161 Avenue of the Americas, Fifth Floor New York, NY 10013-1205 autumn 2006, volume X Th e Disarming Diplomat In a rare interview, Nobel Prize-winner Mohamed ElBaradei (LL.M. ’71, J.S.D. ’74, LL.D. ’04) talks about his firm VI belief that “people need to sit together and find a solution” when it comes to containing the nuclear threat. Where We Stand the cam paign for new york university school of law $206

where we stand…one year later million $3.4 — raised as of August 1, 2006

I see on a daily basis what your support does—for million individual students, who are part of our community in benefits distributed yearly to public-interest lawyers only because of your generosity; for graduates who contact me directly, overjoyed that our loan repayment assistance program has enabled them to continue working in the public-interest sector; and, for people around the country and the world who are touched by the myriad efforts of our faculty. None of this would be possible without the dollars we get from you, our alumni. I want to extend my heartfelt gratitude to all Nine more AnBryce scholars of you who regularly give to our Law School, and to start this fall those of you who will pick up the phone or log on to the Internet to give for the first time today. We promise to use your gifts wisely. Class Gift ’06: www.law.nyu.edu/wherewestand $81,000 raised as of August 1, 2006 19 Weinfeld fellows Twelve scholars joined the full-time Cover: Raedle/Getty Joe Images faculty in the last two years Message from Dean Revesz

any of you will remember struggling in your first the Vienna-based International Atomic Energy Agency, a mul- year over Pennoyer v. Neff and Erie v. Tompkins. So tilateral organization charged with the formidable task of fore- you also know that civil procedure is the point where stalling nuclear weapons proliferation, consented to a rare inter- theory meets practice, where conceptual brilliance view in the midst of a particularly difficult period—as tensions and sensible street smarts are equally necessary. over Iran’s nuclear activities continued to mount. “What Price, In “TheRules of the Game,” on page 24, we trace Peace?,” on page 12, provides a chance to get to know ElBaradei, Mthe formation of a truly outstanding team of men and women who tells writer Daniel Benjamin, a senior fellow at the Center who influence the administration of law in this country through for Strategic and International Studies, that while his role is tech- their own remarkable scholarship, but never lose enthusiasm for nical in nature, he has to “look at the big picture.” He adds, “I feel initiating lawyers into the ways of their profession. While most I owe it to the member states to tell them how I see things from of them don’t go so far as Professor Burt Neuborne—who burns where I sit. I have to do verification, but I also have to see how his notes each year so that he can approach the classroom with a the international community can use this for a peaceful resolu- fresh take each fall—every one of our civ pro professors admits to tion.” Benjamin came away from his interviews with and about being somewhat addicted to teaching this important subject. As ElBaradei enormously impressed with the man. “He’s an inter- regular readers know, since I became dean, each issue of The Law national civil servant in the best sense,” says Benjamin, who trav- School has featured an academic area in which the NYU School eled to Vienna to meet with his subject. “ElBaradei isn’t afraid to of Law has excelled: International Law (2002), Environmental do what he thinks is right—and he’s got a very tough job.” Law (2003), Criminal Law (2004), Law and Philosophy (2005) As you make your way through the rest of this issue, you’ll and now, Civil Procedure (2006). I’m confident that, in each of also get to know the seven faculty members who joined us this these areas, an objective panel would agree we have the stron- year; their profiles begin on page 52. I’m excited to report that gest faculty among the leading law schools. we’ve hired 18 outstanding professors in the four years since A related story, “Heads of the Class,” on page 36, show- I became dean. As a result, the size of our full-time faculty has cases an edited discussion of a much-maligned tactic, the increased significantly, improving our student-faculty ratio class-action lawsuit. We invited eminent alumni and solidifying our preeminent position in many who often represent clients in mass tort cases to fields of law. For a taste of the academic work join our faculty experts for a sometimes heated, a handful of my colleagues have published, always nuanced and often amusing conversa- please turn to the excerpts of recent schol- tion about the whys and wherefores of this arship by Professors Oren Bar-Gill, Rachel legal instrument. I am grateful to all of the Barkow, Daniel Hulsebosch and Katrina featured faculty and the esteemed graduates Wyman, starting on page 65. who lent their expertise and gave generously of Throughout this magazine, you’ll find their time to make both civil procedure stories stories that bring you up to date on campus come together. Visiting Professor Arthur Miller, activities, and showcase the accomplish- who moderated the roundtable with ments of our students, alumni aplomb, deserves a special note and faculty, many of whom of appreciation. garnered medals, grants It’s impossible to imagine and other honors this year. a more timely and engaging There is much significant choice for our cover profile than news, and a great deal to alumnus Mohamed ElBaradei celebrate. Enjoy the issue! (LL.M. ’71, J.S.D. ’74, LL.D. ’04), who won the 2005 Nobel Peace Prize in December. The director general of Richard REvesz The the magazine of the Law School new york university school of law

12 24 What Price, Peace? The Rules Mohamed ElBaradei (LL.M. ’71, J.S.D. ’74, LL.D. ’04) . of the Game runs the International Atomic Energy Agency, a multilateral organization whose mission is to safeguard the At NYU, Civil Procedure is not just world against nuclear proliferation. ElBaradei, who won a basic requirement that first year the 2005 Nobel Peace Prize, believes that, to forestall students need to suffer through. violence, the world’s powers need to address . The magnificent civ pro faculty is human rights injustices as well as quality-of-life . passionate about the administra- imbalances. “It’s not just poverty per se, it’s tion of justice and is devoted to the sense of humiliation and injustice. When teaching procedure, which they somebody feels humiliated,” he says, “they regard as holding “the keys to the just go bananas.” kingdom.” A well-conceived case, say these professors, is like a chess match. Anyone for a game?

Additions to the Roster...... 52 4 44 The Law School welcomes seven new . full-time professors as well as 38 visitors . Notes & Faculty from around the globe.

Faculty Scholarship...... 65 Renderings Focus Four Law School professors—Oren Bar-Gill, Faculty News...... 45 Rachel Barkow, Daniel Hulsebosch and Katrina The 63rd Annual Survey is dedicated to . Wyman—share excerpts of their recently . Ronald Dworkin; David Garland (above) gets published work. a Guggenheim; the American Bar Foundation honors Anthony Amsterdam; Joseph Weiler Good Reads...... 79 and David Golove give inaugural chair lectures; A list of all the work published by full-time, and the first Clinical Writers Workshop is held. visiting, global and library faculty. Plus, reviews Plus: In the Wall Street Journal, Jerome Cohen of books by Derrick Bell Jr., Oscar Chase, Paul takes aim at China’s criminal justice system; Chevigny, Ronald Dworkin, James Jacobs, . Three professors are honored; alumni help in USA Today, Noah Feldman explores how David Richards and Stephen Schulhofer. bring humanitarian relief and a sense of order religion can coexist in public life; in the Daily to Sudan; Congress calls on law professors for News, Cristina Rodríguez and the Brennan voting rights advice; Chinese judges (above, Center’s chair James Johnson critique New on the NYC subway) visit the NYU School . York’s system of selecting trial court judges. 86 of Law; and more. Student Spotlight Feature Student News & Events...... 87 Updates Rights (animal, human, constitutional and . voting) are debated; the Journal of Law & Dean Richard Revesz has charged The Law School with one particular mission above all oth- Liberty offers its inaugural Friedrich A. von ers: Choose one academic area each issue and focus on it so that readers will learn about a Hayek Lecture; the Public Service Auction sets defining characteristic of this institution. During the first years of Revesz’s deanship, we pro- an all-time record; students help Hurricane filed the international, environmental and criminal areas; last year we zeroed in on philosophy Katrina’s victims; and more. and law. This year, civil procedure is under the microscope. Any objective body composed of professors from our peer schools Student Scholarship...... 98 would certainly agree that we set Chloe A. Burnett (LL.M. ’05) suggests replac- the pace in all these subjects. To ing controlled foreign corporations tax laws call attention to the latest news and with a reciprocal group-based model; Kristina developments in these outstanding . Daugirdas ’05 (above) notes that the effective- specialties, we have marked relevant . ness of an agency’s response when a policy is stories with the icons above. successfully challenged in court depends on whether existing rules are vacated or not. AUTUMN 2006 Volume XVI

Senior Director of Communications Elyse Mall Klayman Managing Editor Jeanhee Kim Creative Director David Niedenthal Assistant Managing Editors 36 Jill Rachlin Marbaix Elizabeth Rohlfing Heads of Senior Designer Michael Bierman the Class Graphic Designer The most contested area within the. Nathan Coates realm of civil procedure is mass harm Senior Writer litigation. How should a large group of Graham M. Reed injured parties seek redress? Is a trial . Copy Editors the right way or is there a better forum? Heidi Ernst, Parlan McGaw, A dozen faculty and alumni shared their Kelli Rae Patton, Barbara Spilka expertise on these complex issues in Contributors our roundtable discussion: How should Daniel Bell justice be meted out? Wendy Davis Jennifer S. Frey Shakera Khandakar Kathleen Maloney Tamar Schreibman Student Contributors Cristina Alger ’07, Musa Ali ’07, Joseph Alonzo ’06, Isaac Cheng ’08, 102 Alexander Dmitrenko (LL.M. ’06), . Mitra Ebadolahi ’08, Mimi Franke ’08, . Around the Amanda Garcia ’06, Carrie Johnson ’08, . Randi Levine ’08, Vinay Patel ’08, . Law School Kumar Rao ’06, Matthew Schrumpf ’07, . Andre Segura ’06, Richard Vagas ’06, . Highlights from this . Katie Walsh, Jason Washington ’07, . year’s swirl of events in- Delcianna Winders ’06 cluded three Transatlantic Senior Account Executive, Dialogues, with Supreme 128 NYU Office of Public Affairs Court Justice Stephen Elizabeth Fasolino Breyer and John Bruton Making the Editorial Assistant of the E.U., among others; Atticus Gannaway a conference on presidential powers attended Grade by political players with widely disparate Design Assistant Sterling Talob Waters views, ranging from Republican stalwart Viet Commencement and Convocation featured Dinh to Clinton confidant Sidney Blumenthal remarks by Carol Bellamy ’68 and student Assistant to former Nixon counsel John Dean (above); speakers Alexander Dmitrenko (LL.M. ’06) and Jonathan Oak Brandon Buskey ’06; Supreme Court Justice a compelling lecture by Chief Justice Randall Photographers Shepard of the Indiana Supreme Court; and Anthony Kennedy received an honorary LL.D.; Stephen Barrett the third annual counterterrorism conference Jenny Huang ’06 (above) celebrated. Bart Bartholomew that gathered top decision-makers. Bryan Burkey Peter Calvin Bruce Cook Susan Cook 136 Paul Cooper 114 Dan Creighton The Nicola Cuti Annemarie Poyo Furlong Alumni Almanac Phil Gallo Back Diego Giudice Marcus Halevi Page Mary Hanlon Wilford Harewood Simon Chesterman Ken Levinson is the faculty director Sarah May of our new program Elena Olivo with the National Uni- Don Pollard versity of Singapore Debra Rothenberg Faculty of Law. We Leo Sorel The Law School launches a $400 million . interviewed the witty Juliana Thomas capital campaign; Lester Pollack ’57, chair of native Australian be- the Law School board, gives his name to a fore he leaves town. center; alumni honor Judge Betty Weinberg Please send your comments to . Ellerin ’52; and Jennifer Dalven ’95 and Monica [email protected] Roa (LL.M. ’03, above) protect women’s rights. © 2006 New York University School of Law. All rights reserved.

Notes & Renderings Antiterrorism Expert Reflects Bryan Stevenson Wins at Center on Law Martin Luther King Award and Security The New York City Police Department’s former deputy commissioner for counterterrorism has joined NYU’s Center on Law and Security (CLS) as a distinguished fellow for the current school year. Michael Sheehan, who was the top counterterrorism official at the U.S. State Department as well as a member of the National Se- curity Council under Presidents George H.W. Bush and Bill Clinton, resigned from the NYPD last May. Sheehan has 33 years of experience in public service, beginning with his undergraduate studies at West Point; he then rose to the level of lieutenant colonel in the U.S. Army Special Forces. His counterterrorism career began in the 1990s, when after the bombings of U.S. embassies in East Africa he became the Department of State’s ambassador-at-large for counterterrorism. He was also the assistant secretary-general in the Department of Peacekeeping Operations at the United Nations, where he was responsible for oversight of military and peacekeeping forces around the world. The purpose of the fellows program is to allow leading counterterrorism officials to take a step back and reflect, to think about the intractable problems and con- Professor Stevenson was honored during NYU’s first annual MLK Celebration Week in January. sider new approaches. “It’s time for me to go to a different level,” Sheehan told the New York Times last May when his deci- ryan Stevenson, professor of clinical of Alabama, which works on behalf of indi- sion to come to NYU was made public. law, added two more awards to his gent defendants and prisoners, many on “And for the first time in my life, I’m going B already impressive collection this year death row. The EJI has succeeded in obtain- to be able to write and speak and enter the public policy discussion and hopefully when he took home NYU’s first-ever Martin ing relief in the form of new trials, reduced bring a little added value to that discus- Luther King Jr. Humanitarian Award as well sentences or exoneration for more than 70 sion in a nonpartisan way.” During his year as its Distinguished Teaching Award. death-row prisoners in the past 15 years. at the CLS, Sheehan is planning to coedit Stevenson, who lists among his honors It was Stevenson’s tireless advocacy that with CLS Executive Director Karen Green- berg a publication called , a MacArthur Foundation fellowship, the caught the attention of the Martin Luther For the Record which will present analyses of major se- American Bar Association Wisdom Award King Jr. Humanitarian Award committee, curity issues and policies, including port for Public Service, the American Civil said Allen McFarlane, assistant vice presi- security, the Patriot Act’s consequences Liberties Union National Medal of Liberty dent for student diversity programs and and how to build the necessary infrastruc- and the American College of Trial Lawyers services at NYU. He said that Stevenson ture to defend against terrorism. Award for Courageous Advocacy, teaches “embod[ied] the work of Dr. King…. We courses on racial justice and capital want to recognize individuals in our own punishment as well as leading the head- community, in our own backyard, who are line-making Capital Defenders Clinic in doing great things related to social justice Alabama. In January 2005, clinic client and diversity in our world today.” James Borden became the first Alabama Stevenson was also one of three pro- death-row prisoner to have his sentence fessors to receive the annual NYU Distin converted to life imprisonment due to guished Teaching Award in May. The medal mental retardation. “The clinic is the per- and $5,000 grant recognize faculty who have fect nexus of legal training and education contributed significantly to the intellectual while helping defendants who are literally life of the university. Said Vice Provost for dying for representation,” says Stevenson, Faculty Affairs E. Frances White: “The com- who believes that “each of us is more than mittee was especially impressed by Bryan’s the worst thing we have done.” ability to inspire students to dedicate their Stevenson is also the executive direc- lives to helping those marginalized in the tor of the nonprofit Equal Justice Initiative criminal justice system.” ■

THE LAW SCHOOL AUTUMN 2006 ries about their villages being pillaged and Answering the Call from Sudan women being raped. “So many times I told these people that I would make their words heard,” says Pressman, who grew up hearing his own family’s stories of the Holocaust. Pressman had just returned to the United States and was organizing a speaking tour to talk about the plight of the Sudanese people when he got a call from Nick Clooney, a columnist at the Cincinnati Post. Clooney and his movie star son George had been unable to get into the region; they wanted to report firsthand on the three-year-old conflict at the Save Darfur rally on April 30 in Washington, D.C. By chance, the elder Clooney was chat- ting with a cousin, who told him about her nephew, a lawyer from NYU. “David is quite an accomplished young man,” Clooney later wrote. “More than that, he is a person who gets things done. When others said ‘no,’ he said, ‘If you really want to do this, I think I can find a way.’” The unlikely trio and a cameraman soon set off for Nairobi, Kenya. From there, they

David Pressman, lower right, helped George Clooney and his father, Nick, interview Darfuri refugees on camera. hopped a single-engine Cessna to Southern Inset: Nathan Miller with members of the Blue Nile State Constitutional Committee in Southern Sudan. Sudan, where they spent the night in stifling hot huts crawling with tarantulas, then took hree Law School alums took action in help them in their post-peace agreement another plane and also a Jeep across dirt Sudan this year: Nathan Miller ’01 and constitutions. That’s when he started RoLI. roads to the Oure Cassoni Refugee Camp T Maya Steinitz (LL.M. ’00) launched the “There was a desperate need for the people at the Chad-Darfur border to interview the nonprofit Rule of Law International (RoLI) of Sudan to get legal consultation that refugees on camera. to help the Sudanese develop a constitu- they could trust,” says Miller, the executive When they returned home, the Clooneys tional process, and David Pressman ’04 director. With Miller in Sudan, and Steinitz spoke at the rally and appeared on CNN, drew media attention to the humanitarian plus a 50-lawyer team from Latham & Oprah and Today, to name a few media out- crisis in Darfur, with the help of actor Watkins working pro bono in Manhattan, lets. “We were able to use George’s celebrity George Clooney and George’s father, Nick. RoLI helped hammer out constitutional to propel these horrific stories into virtually When the Sudanese civil war ended last frameworks at the national, subnational every media market and hopefully into the year, Miller, who had been working with the and state levels. American conscience,” says Pressman. A Sudanese People’s Liberation Movement Pressman had also been working in the long, arduous trip to fulfill his promise, but (SPLM) to create a rule of law program in region setting up rule of law programs for the one that may lead to much-needed aid for Southern Sudan, saw an opportunity to U.N. He had listened to Darfuri victims’ sto- the suffering Sudanese.■

Nagel Gets a Sweet Slice of Mellon homas Nagel received a Distinguished including one of his latest, The Myth of Achievement Award from the Andrew W. Ownership: Taxes and Justice, with Professor T Mellon Foundation in December. The of Law and Philosophy Liam Murphy. “The University Professor was one of four aca- Mellon award to Tom Nagel signals what demics to win the award, which includes a everyone in the field already knows: that he three-year $1.5 million grant to the scholar’s is one of the Anglophone world’s few most university. With the funding, Nagel plans to eminent and influential philosophers,” said pursue an interdisciplinary group study of Dworkin. “He has no formal legal training, the relationship between science and reli- but he has become an intuitively skillful and gion, as well as individual research into the imaginative lawyer and he has brought new political theory of global justice. sophistication to the study of legal philoso- Nagel, who coteaches the Colloquium phy and, indeed, of constitutional and inter- in Legal, Political and Social Philosophy national law. The Law School is extremely with Professor Ronald Dworkin, has been a lucky to have him, not just to teach moral professor of philosophy at NYU since 1980. and political philosophy, but to carry In 1986, he also became a professor of law, forward the integration of law and the and, in 2002, University Professor. Nagel is humanities. The Mellon funds will fur- the author of dozens of articles and 10 books, ther enhance his power to do that.” ■

AUTUMN 2006 NOTES & RENDERINGS

He added that its thesis may in places be Legal Paper Makes Waves— overstated, noting in particular that Senator Arlen Specter, the Republican chairman of Even Before Publication the Judiciary Committee, has tried to protect Congressional power, though without t’s not every day that a law review article separation of powers. Ambition checking notable success. challenges a piece of constitutional ortho- ambition, in James Madison’s phrase, is It is a mistake, the article says, to look to I doxy so widely held that junior high school said to be the very basis of the success of the courts for significant oversight of execu- students can recite it. And it’s even less American democracy. tive power when the political branches are common for law review articles to start gen- “The truth,” Levinson and Pildes wrote in controlled by a single party, as judges generating discussion and controversy months the timely, fresh and immensely readable erally find presidential actions constitu- before they are published. article, “is closer to the opposite.” tional when they can be said to have been The June Harvard Law Review featured In an interview, Pildes explained that the undertaken with Congressional authoriza- an exception to those rules, a collabora- article’s goal was to cause readers to reexam- tion or, at least, silent acquiescence. Thus, tion between Sudler Family Professor of ine the things they thought they knew. “The the September 2001 Authorization for Use Constitutional Law Richard Pildes and starting point,” he said, “is getting people to of Military Force was, the Supreme Court Professor Daryl Levinson of Harvard Law think more seriously about ideas, like ‘sepa- ruled in 2004, sufficient to justify military School called “Separation of Parties, Not ration of powers,’ that are repeated so often detentions. The administration relies on Powers.” It took aim at the conventional they become taken-for-granted mythologies, that same authorization in connection with understanding of what is said to be the without asking any more whether these insti- its controversial surveillance program. unique genius of the constitution: the tutions actually operate in the way these sto- “Only during divided government,” the checks and balances that are built into the ries lead us to unreflectively believe.” authors write, “do courts have the inde- What the framers failed to envision, say pendence to act as a meaningful check on Levinson and Pildes in their article, is how national majorities. In short, strongly inde- party politics can swamp the constitutional pendent judicial review may be possible structure. When the same party controls only when least necessary.” both political branches, it is fantasy to think The article helps explain why Democrats that Congress’s institutional self-interest are so eager to win back the House or Senate: will be enough to act as a meaningful check Only an opposition party with subpoena on the president. power and similar oversight tools can truly A single party has act as a check on another branch. Indeed, controlled govern- among the reforms proposed in the article ment more often than not since 1832. to compensate during periods of unified “Against this background,” the article government is providing the minority party says, “it is odd to hear courts and consti- with such tools. tutional scholars celebrating government “Rather than blaming individual mem- ‘accountability’ as a particular virtue, or even bers of Congress for not playing their potential virtue, of the Madisonian design.” ‘assigned’ role of providing checks and Though the article was not formally balances and exhorting them to be more published until June, it caught the attention ‘responsible,’” Pildes said, “we need to look of the legal academy in draft form. “It’s a at the legal and institutional context in very good and important paper,” said Cass which they act and focus on changing that Sunstein, a law professor at the University of in ways that enable more meaningful checks Chicago. “It has a real insight that, certainly and balances to be exercised in actual prac-

Satterthwaite Calls for a Human Rights Response in Haiti

ssistant Professor of Clinical Law Satterthwaite and her project partner hearing room,” says Satterthwaite, who ear- Margaret Satterthwaite called for action Loune Viaud, the director of a free medi- lier in her career worked as an investigator for A in Haiti when she testified before the cal facility in Haiti and the 2002 Robert the Haitian Truth and Justice Commission. Inter-American Commission on Human F. Kennedy Memorial Human Rights As photos of patients were projected onto a Rights (IACHR), the human rights body of Award winner, focused the IACHR’s atten- screen, said Satterthwaite, Viaud explained the Organization of American States (OAS), tion on Haiti’s dire situation with the that the right to health was being violated in Washington, D.C., on March 3, 2006. She help of two students in the International on a daily basis. When the hearing came highlighted the extreme poverty of Haitian Human Rights Clinic. Jordan Fletcher ’06 to a close, Commissioner Clare Roberts of citizens and their lack of basics, such as and Swan Sallmard (LL.M. ’06) prepared Antigua personally thanked the women for food, clean water, shelter and health care. Satterthwaite’s and Viaud’s testimonies and their testimony. “We are hopeful that our Insisting that the deprivation of these essen- coauthored the legal brief that was submit- legal arguments, coupled with this human tials is a human rights matter, she urged the ted to the IACHR. “The countless hours they connection, will make a difference in the OAS to fulfill its legal obligations under its put into constructing a compelling legal way the commission approaches the right charter by assisting Haiti’s suffering people. argument paid off when we arrived at the to health in Haiti,” Satterthwaite said. ■

THE LAW SCHOOL AUTUMN 2006 Helping Worthy Students Get to the Starting Line

etting into law school is no small feat for sidized course fee. Students endured the even the most privileged students, who rigorous Princeton Review Hyperlearning G have ample resources for exam prepa- LSAT preparation course, which provides ration courses and knowledgeable parents more than 60 hours of classroom instruc- or paid consultants to explain the process. tion, and six full-length practice LSAT exams. But for those at an economic disadvantage, In addition, TruePotential students took higher education may seem impossibly out résumé- and essay-writing workshops, and of reach. “My parents just didn’t know how received insider perspectives on the admis- the system worked,” says Carlos Siso ’07, sions process from Siso, Hernández and who was born in Venezuela and raised in Law School administrators like Assistant Miami. “I was deciding where to go and fig- Dean for Admissions Kenneth Kleinrock. uring out what to do all by myself.” The same To qualify for the TruePotential program, was true for Damaris Hernández ’07, who students must intend to take the following was raised by her non-English speaking summer’s LSAT and demonstrate significant mother in East New York. “I was the first in financial constraints that prevent them from my family to go to college, and it was a road paying for an LSAT prep course—which can I traveled by myself,” explains Hernández. cost $1,500. Other factors such as a prospec- Aziz Huq Is Law “My mother worked long hours so she could tive student’s extracurricular activities, aca- School’s Fourth give me every opportunity, but it wasn’t the demic achievement and leadership poten- same as someone who has money.” tial are also taken into consideration for Carnegie Scholar Their difficulties motivated the two admission into the program. to smooth the way for others. Siso and Gabriel Zucker, a 27-year-old parent For the fourth straight year, the Carnegie Corporation of New York has named a Hernández partnered with the Princeton and a philosophy major at Columbia Uni member of the Law School community Review Foundation and the Law School to versity, was a part of TruePotential’s pilot a Carnegie Scholar. Joining Professors create TruePotential, a program that helps class this past spring. Like many of his class- Noah Feldman, Stephen Holmes and socioeconomically disadvantaged prospec- mates, he wondered how he was going to Richard Pildes, Aziz Huq, a lawyer at tive law students in New York with every balance his courseload and a 20-hour-per- NYU’s Brennan Center for Justice, has been awarded a two-year grant of up to aspect of admissions, from test taking to week job, and find the time and money for $100,000 to study issues concerning Is- essay writing to seeking financial aid. an LSAT prep course. “When the spring lam and the modern world. “Education is about opportunity,” said semester of my junior year began, I felt what Huq’s research involves a pressing Dean Richard Revesz. “An endeavor like many law school applicants feel: dread,” question that has arisen in Western societies in the wake of 9/11—namely, how to TruePotential is in keeping with the spirit of said Zucker. deal with Islamic terrorist defendants in the NYU School of Law’s mission to provide But after taking part in TruePotential, the criminal justice system while still re- a platform for achievement.” Zucker’s outlook brightened. “It hasn’t been specting the constitutional ideals of free Last spring, TruePotential held its pilot easy; I could never have done it without the speech and religious accommodation. (A program at NYU. The Law School donated dedication of Carlos and Damaris,” he says. significant part of the project will entail examining trial transcripts to see how de- classroom space in Furman Hall, and paid “The fact that they do this as full-time law fendants’ religious speech is used against the Princeton Review Foundation’s sub- students inspires me to work even harder.” ■ them by government prosecutors.) Huq plans to look at this quandary in the larger context of the social policy problem: how to identify the small number of radicalized Muslims in Western countries while preventing further radicalization. Huq, whose work includes litigating executive detention cases and studying the separation of powers, anticipates more access to multidisciplinary scholarship through the grant. In fact, at a gathering of Carnegie Scholars in July, he said he learned about the history and inception of electric torture, information that may prove useful in his research. Patricia Rosenfield, the chair of the Carnegie Scholars Program, called Huq “a scholar with deep historical and legal understanding. His scholarship is unemo- tional and unbiased in its approach, and will result in a major contribution to understanding and in efforts to respond to today’s most sensitive and important areas of counterterrorism.” With assistance from the Law School and the Princeton Review, Carlos Siso and Damaris Hernández, together at far left, launched TruePotential to help socioeconomically disadvantaged aspiring lawyers.

AUTUMN 2006 THE LAW SCHOOL NOTES & RENDERINGS

Pentagon Admits Error in Targeting Students

ew would be surprised to learn that the Pentagon has been monitoring pos- F sible terrorist activity within the U.S. But many were outraged last December when MSNBC revealed that the Department of Defense’s targets included a Law School student group that opposes the Solomon Amendment and the military’s “Don’t Ask, Don’t Tell” policy, which bars service by openly gay and lesbian personnel. According to the media report, OUTLaw, the NYU gay and lesbian law students organization, and other schools’ gay student groups had been flagged as potential threats to domestic security. In April, following a series of Freedom of Information Act requests from the Servicemembers Legal Defense Network (SLDN), which provides legal assistance to gays and lesbians in the armed services, and inquiries on behalf of NYU by Senators Charles Schumer and Richard Revesz in a statement to the NYU ing because they reveal a remarkable misal- Hillary Clinton and Congressman Jerrold community. “They are distressing in that location of our nation’s resources. At a time Nadler, Acting Deputy Under Secretary of they reveal disrespect for the traditional role when security concerns are paramount in Defense Robert Rogalski admitted that the that universities, and law schools in particu- the minds of all Americans, especially New DoD had erroneously included reports of lar, play in providing an environment for crit- Yorkers who have suffered the consequences these student groups’ antimilitary protests ical thought and robust discussion of socially of security lapses, we are disheartened to in their database of “suspicious incidents,” important issues. Government surveillance discover that our officials deem it appropri- and said that steps were being taken to pre- of those involved in peaceful and constitu- ate to dedicate their scarce resources to the vent a recurrence. tionally protected activities...can only chill surveillance of students whose objective is to “These [government reports] are both the conversation that universities are obli- increase opportunities for capable men and distressing and disappointing,” said Dean gated to foster. The reports are disappoint- women to serve their country.” ■

Narula Focuses International Attention on the Plight of Dalits

t’s hard to pinpoint the exact moment steps toward it in August 2005, when she the report at the European Parliament when Assistant Professor of Clinical Law cowrote “The Missing Piece of the Puzzle: Subcommittee on Human Rights Exchange I Smita Narula became a leading advo- Caste Discrimination and the Conflict in of Views on Nepal. A month later in cate in the fight against caste discrimina- Nepal,” published by NYU’s Center for Kathmandu, Martin went a step further; in tion in Nepal. She certainly took some big Human Rights and Global Justice (CHRGJ). a speech he gave on the International Day The report, which was then delivered for the Elimination of Racial Discrimination, to the United Nations’ Committee Against he heavily referenced and endorsed the Torture in Geneva, called attention to acts center’s report, and publicly announced his © 2005 Nick Anderson. All rights reserved. Reprint permission provided by Nick Anderson and the Washington Post Writers Group in conjunction with in conjunction the Cartoonist Group. Writers Group Post the Washington and Anderson reserved.by All rights provided Nick permission Reprint Anderson. Nick © 2005 of discrimination, purposeful economic promise to “seek to focus the attention of marginalization and physical torture com- the mechanisms of the U.N. human rights mitted against “lower-caste” Dalits. These system as a whole to support the rights of indigenous Nepalese citizens, says Narula, Dalits and ethnic minorities in Nepal.” have been “the invisible victims” in an Narula and the CHRGJ are now inextri- unchecked power struggle—political pawns cably entwined in the Nepalese issue. The suffering apartheid-like segregation amidst OHCHR regularly seeks her expertise in the long, bloody conflict between the Maoist dealing with discrimination in Nepal, and insurgency and the Nepalese monarchy. the center will closely monitor the draft- The U.N. committee responded strongly ing of an interim constitution by a drafting to Narula’s report, adopting its proposals committee that was formed in the wake and calling on Nepal to address the Dalits’ of King Gyanendra’s abdication last April. plight and ensure that caste is no longer a Narula and the CHRGJ have made it a top basis for pervasive abuse. priority to ensure that the elimination of In February 2006, Ian Martin, the head caste discrimination takes center stage in of the Office of the High Commissioner of the wording (and application) of Nepal’s Smita Narula at the report briefing in New York. Human Rights (OHCHR) in Nepal, cited interim constitution. ■

THE LAW SCHOOL AUTUMN 2006 Two Degrees of Collaboration Out of the his year, New York University School of will be taught by NYU law faculty in resi- Law announced an exciting new dual- dence at NUS as well as by NYU global fac- Shadows T degree program in conjunction with the ulty and members of the NUS faculty. National University of Singapore Faculty of In addition to their classes, students will Law (NUS). The international curriculum have the opportunity to complete intern- will be offered in Singapore, and the schools ships with Singapore law firms, corporations, will welcome their first joint class of 75 to 100 government entities or NGOs in the region. Associated Press Associated students in May. Simon Chesterman, until They may also follow courses in Shanghai recently the director of NYU School of Law’s through a joint program of NUS and East Institute for International Law and Justice, China University of Politics and Law. will be the resident faculty director of the “We expect the new program to attract groundbreaking program. two broad categories of applicants,” said Designed to attract students from all Chair and Faculty Director of NYU’s Hauser over the world, not just Asia, the program Global Law School Program Professor will combine the rigorous academic educa- Joseph Weiler. “The first is Asian stu- tion for which NYU is known with a program dents who hope to acquire proficiency in that embraces what NYU President John American law and benefit from the distinct Sexton calls the idea of “global connected- methodology and style of American legal ness and promise.” education, while also developing a com- “For NYU School of Law this is a natural parative understanding of Asian law. The step,” said Dean Richard Revesz. “Over a second is students from the rest of the world A groundbreaking pilot study by the New York University School of Law’s Center decade ago, we recognized that important who recognize the importance of Asia and for Community Problem Solving (CCPS) changes in the way law was being practiced want to combine the rigor of an American and the Center for Urban Epidemiologic required changes in the way it was taught. law degree whilst simultaneously acquiring Studies at the New York Academy of This led to the creation of our highly suc- proficiency in Asian law and institutions.” Medicine revealed unsettling information about the health, economic situation and cessful Hauser Global Law School Program. “This relationship brings together the social status of New York’s Mexican immi- Our partnership with NUS takes that insight top international law faculty in the United grant population. to the next level.” States and Asia’s Global Law School,” said Five million of the 10 million Mexican Students will earn a Master of Laws Chesterman. “It’s tremendously exciting, immigrants in the United States—the larg- (LL.M.) degree in law and the global econ- not only for the students, but also for the est immigrant group in the nation—are undocumented, and their lives in the omy from NYU, with optional concentra- two faculties.” NUS Faculty of Law Dean Tan shadows compelled the CCPS to conduct tions in either U.S. and Asian business Cheng Han agreed, saying, “We welcome this unique, all-inclusive analysis. Inter- and trade law, or justice and human rights. the NYU School of Law to Singapore.” ■ viewers talked with documented and An expanded curriculum will allow them undocumented Mexicans in all five bor- oughs of New York. They asked detailed also to earn an LL.M. from NUS. Courses questions about the immigrants’ personal experiences with health care, the criminal justice system, social networks, substance abuse and employment. Some of the survey’s findings—which were published last November in New York City’s two major daily Spanish language newspapers, HOY and El Diario—include: More than 44 percent of the inter- viewees have lived in New York for less than four years. Nearly 85 percent did not have health insurance and almost 27 percent had gone hungry during the last six months because they couldn’t afford food. Arijit Nandi, a doctoral student at the Johns Hopkins Bloomberg School of Pub- lic Health who helped analyze the data, notes that the health of immigrants and of the general population are likely to be inextricably mixed. “It makes a compelling argument for learning more about the public health issues faced by undocumented individuals,” says Nandi. “And for addressing them.”

Faculty Director of the Singapore Program Simon Chesterman, left, with National University of Singapore Faculty of Law Dean Tan Cheng Han.

THE LAW SCHOOL NOTES & RENDERINGS

Chinese Judges Take U.S. Meron Medals ast March the American Society of Courts Under Consideration International Law (ASIL), an organiza- L tion supporting the study and promotion of international law, honored Judge Theodor Meron, the Charles L. Denison Professor of Law Emeritus and Judicial Fellow at NYU, with its Manley O. Hudson Medal, given for “exceptional contributions to scholarship and achievement in international law.” Meron, the former president and a current appeals judge of the International Criminal Tribunal for the Former Yugoslavia and an expert in international humanitarian law and international criminal law, served as a U.S. delegate to the Rome Conference on the Establishment of an International Criminal Court. The society presented the medal at its centennial meeting, after Meron delivered an address that concluded that tribunals “have helped to instill the idea that justice, not retribution or impunity, should be the response to horrific crimes.” W. Michael Reisman, the Myres S. McDougal Professor of International Law at Yale Law School and chairman of the ASIL honors committee, lauded Meron “for his contributions as a teacher over many decades, as a creative scholar, especially in the field of humanitarian law, for his scholarship in the humanities, for his work for the U.S. government as counselor to the Department of State, for his

Top: Research Scholar Mary Holland, second from left, led the visiting judges on their trip to Centre Street. leadership of the Former Yugoslav Tribunal Judges Huang Lihua, left, Zhang Min, center, and Wang Jianping, standing right, take the A train. over which he presided and for his contribution to the American Society of International t wasn’t the distinctively New York ex- Yu Chunsheng, president of the Xinjiang Law, as editor-in-chief of the American perience of careening and sweltering Wulumuqi Shayibake District Court, dis- Journal of International Law.” Meron, he I aboard the city’s famed subways that got agreed: “It’s hard to be an American judge. said, would have qualified for the award for the visiting Chinese judges excited when You have far more experience and yet you any one of these accomplishments. ■ they visited in June; they were focused have to abide by a jury’s verdict.” on the goings-on at the New York State The judges also had the opportunity to Supreme Court. This year’s attendees of the meet with the Honorable Doris Ling-Cohan Dwight D. Opperman Institute of Judicial ’79 and hear about her administrative initia- Administration’s Training and Education tives to benefit the largely Asian community Program for the Chinese Judiciary were in Lower Manhattan. One program that keyed up to hear about how the state judi- impressed the judges was the free book avail- cial process works, and explore the differ- able at the court, cowritten in English and ences between jury and judge trials. Mandarin by Ling-Cohan, which explains “The visiting judges were interested in New York State court procedures. the ways American courts function, how Current events also made for lively dis- they relate to the executive branch and how cussion. “On the last day of the program, we they deal with administrative problems,” discussed the Hamdan case in which the said Russell D. Niles Professor of Law Oscar Supreme Court held that the president’s Chase, codirector of the institute. powers over the Guantánamo detainees When asked if American judges should were limited by the Geneva Conventions have final say in trials, the Chinese judges and Congressional action,” said Chase. “I had varying opinions. Some, like Ouyang found that the Chinese judges were as Zhenyuan, a senior judge of the Fourth divided about the outcome as the justices of Civil and Commercial Tribunal of the High the Supreme Court.” ■ People’s Court, felt that jury trials protected judges when sentences were handed down. Theodor Meron

10 THE LAW SCHOOL Law Professors Testify on Voting Rights Act

n separate appearances in May, Law School Professors Samuel Issacharoff and I Richard Pildes told the Senate Judiciary Committee that a controversial portion of the Voting Rights Act designed to protect the ability of minorities to have a voice in our government might no longer be necessary. In July, however, Congress voted to renew the measure, called Section 5, which was enacted at the height of the civil rights movement in 1965—several months after three voting rights activists were killed in Mississippi and after state and local police in the South attacked 600 civil rights protesters on a march from Selma to Montgomery, Alabama. Senators Arlen Specter, Patrick Leahy, Edward Kennedy, Joseph Biden Jr., Herbert Kohl and Dianne Feinstein. Last renewed in 1982, Section 5 requires some areas of the country—mostly Southern to revise the Section 5 language to repudi- January, he testified on a somewhat related states—to obtain approval (called preclear- ate the 2003 U.S. Supreme Court decision matter during the confirmation hearings for ance) from the Justice Department before in Georgia v. Ashcroft. In that case, the Samuel Alito. In 1985, the nominee had writ- any changes to election practices or proce- Supreme Court said that a redistricting in ten on a job application that he disagreed dures can go into effect. Georgia should have been allowed, even with Supreme Court decisions in the 1960s Given the vast changes in U.S. society though the Justice Department declined to about reapportionment, and the idea that in the 41 years since the law was enacted, approve the change. states had to structure government to imple- Section 5 doesn’t necessarily make sense in “Here were black and white legislators, ment the “one-person, one-vote” principle. its current form, Issacharoff told the panel willing to make their seats more depen- “That such doubts about the reappor- on May 9. He urged legislators to ease some dent upon interracial voting coalitions. Yet tionment cases should reappear on a job of the procedural requirements currently the Act would have imposed on them more application in the 1980s is at least a curios- faced by jurisdictions covered by the pro- racially homogenous constituencies,” he ity,” Issacharoff testified. While he didn’t

Theodor Meron: Michael Kooren/Reuters; Noah Feldman: © Jonathan Becker;Jonathan Feldman:Hearings:Kooren/Reuters; Noah Senate © TheodorMeron: Press Associated Michael vision. He also warned that as the politi- testified. “And here were black legislators, recommend rejecting Alito, he urged the cal parties vie for voters, Section 5 can be not demanding safer sinecures for them- Senate to be sure that Supreme Court jus- misused by officials basing decisions on selves, as officeholders typically do, but tices are committed to protecting the right party politics. “Unfortunately,” he said, “the taking risks, cutting deals and exercising to vote. “Before confirming any nominee emergence of real bipartisan competition political agency to forge a winning coalition. to the Supreme Court,” he testified, “the in covered jurisdictions has brought with it Yet the Act would have denied these politi- Senate of the United States should be able concerns of preclearance objections moti- cal actors the autonomy to make the hard to conclude with confidence that, regard- vated by political gain, particularly in the choices at issue, even with partisan control less how a nominee may vote on any given highly contested area of redistricting.” of state government at stake.” case, there is no doubt that he or she will A week later, Pildes raised some of the Issacharoff’s appearance was his sec- assume the responsibility of protecting the same points, and also criticized a proposal ond before the committee this year. In integrity of our democratic processes.” ■

The Council on Foreign Relations Welcomes Noah Feldman oah Feldman, the Cecelia Goetz Pro in the Middle East is a primary focus of study. fessor of Law, joined the Council on James M. Lindsay, vice president and direc- N Foreign Relations as an adjunct senior tor of studies at the Council, said the orga- fellow in January. Feldman, who earned a nization was “thrilled” that Feldman had doctorate in Islamic political thought from joined them, adding: “He is one of America’s Oxford University and who has served as a leading scholars on Islamic thought. His senior constitutional adviser to the Coalition appointment has deepened the Council’s Provisional Authority during the Iraqi con- contribution to the debate on Iraq and the stitutional process, has since participated in future of democracy in the region.” several discussions at the Council on such Last December, shortly before joining topics as the Iraqi civilian perspective and the Council, Feldman was also named a the proper understanding of Shiism. “The contributing writer for the New York Times Council is an ideal and unique venue for Magazine. His recent articles for that pub- meeting with and influenc- lication have examined the prospects for ing policymakers,” said stability in Iraq, the legality of the National Feldman, for whom Security Agency’s domestic spying program democratization and the limits of presidential power. ■

THE LAW SCHOOL 11 In the eye of the storm: Mohamed ElBaradei briefs the press after a closed-door session with President George W. Bush in 2004. ,

Nonproliferation treaties aren’t worth the paper they’re printed on unless someone holds signatory nations accountable; the head of the IAEA, Mohamed ElBaradei (LL.M. ’71, J.S.D. ’74), collects the dues.

If one were to try to plot the point to be no doubt whatsoever in at the middle of the major interna- ElBaradei’s mind: “We have reached tional confrontations of the last few a point,” he says, “where there are no years, the result would probably be a other options but diplomacy.” spare, elegantly appointed room atop a With his oval-rimmed glasses, dark curved high-rise building on the outskirts suit and trim moustache, ElBaradei, who of Vienna. It is the office of Mohamed ElBaradei, earned an LL.M. in 1971 and a J.S.D. in inter- the director general of the International Atomic Energy national law from NYU in 1974, has the scholarly-yet- Agency (IAEA), and last March, ElBaradei spoke there stylish look of someone you might meet browsing off about his efforts to direct the way to a peaceful settle- the Ring in one of Vienna’s art galleries or antiquariate. ment of the world’s most dangerous brewing conflict. Spot him on the street in his overcoat and white scarf, “Everybody recognizes that Iran can only be resolved and he is the picture of urbanity. It’s easy to imagine when all the concerned parties sit together, face to face, him descending the steps from the former Hapsburg and have a negotiated settlement. There is no military capital’s renowned Oper into a snowy Viennese night. solution,” he has long insisted, “even if you go through It’s a bit harder to imagine him hectoring and cajoling sanctions. An imposed solution is not a durable solu- Iran’s theocrats into permitting more intrusive inspec- tion.” The world’s newest Nobel Peace Prize laureate has tions of their facilities—or trying to fend off the demands been frustrated with the Iranian government’s refusal to of the United States and its European allies to escalate come clean about all of its nuclear activities and worried the matter by bringing their complaints to the United about the war drums that have beaten intermittently in Nations Security Council. But that is precisely what Washington, especially earlier this year. There appears has been occupying his time lately. And as he knows

b y D aniel B enjamin Photo: Stephen Jaffe/AFP/Getty Images; Medal: © TM The Nobel Foundation Images; Nobel Jaffe/AFP/Getty Stephen © TM The Medal: Photo:

AUTUMN 2006 THE LAW SCHOOL 13 well, the stakes could hardly be higher: At has improved the enrichment process and Brazil, South Africa, Libya, South Korea issue is not only the question of war and even produced fissile material for weapons. and Taiwan, have pursued nuclear weap- peace between America and Iran but also After Tehran announced that there would ons programs and then thought better of it. the future of the global nuclear nonprolif- be no quick reply forthcoming, Russia and After the collapse of the Soviet Union, the eration regime. Indeed, the viability of the China expressed their growing displeasure nuclear-armed states that emerged from current system of multilateral organizations with Tehran’s foot-dragging by joining the the wreckage—Ukraine, Kazakhstan and that mediate among almost 200 nations and U.S. and Europe in agreeing to seek a U.N. Belarus—agreed to turn over to Russia the attend to the most challenging problems of Security Council resolution ordering Iran weapons left in their territory. Beyond the the age hangs in the balance. to freeze some nuclear activities—or face countries whose possession of the bomb is In early June, the ElBaradei view about sanctions. On July 31, against the back- recognized by international law in the form how to deal with Iran received support from drop of new hostilities between Hezbollah of the Nuclear Non-Proliferation Treaty of an unexpected quarter: the administration and Israel, the Security Council pushed 1970 (NPT)—the United States, Russia (as of President George W. Bush. In a rare rever- again for some sign of cooperation, calling the successor state to the Soviet Union), sal of a long-held policy, Bush okayed a new for Iran to cease its enrichment work by China, Britain and France—only India, U.S.–European initiative that extended the September. This elicited a defiant response Pakistan and Israel have developed nuclear promise to Iran of direct negotiations with from Tehran, which threatened to expand weapons in the 40-plus years following the United States and a package of conces- its nuclear program and perhaps cut off oil Kennedy’s prophecy. sions if Tehran would cease its uranium- exports. ElBaradei’s belief in the necessity of In recent years, however, the successes enrichment program, which Washington diplomacy, though, is unshakeable. “There have slowed to a trickle, and the danger of and some of its allies believe is aimed at giv- is no other way,” he argues. While ElBaradei a cascade of nuclearizing countries appears ing Iran a nuclear weapon. (Until the spring understands that diplomacy can fail, he more imminent than ever. The biggest gun of all pointed at the nonproliferation regime may well be Iran. For almost two decades, the Islamic Republic’s effort to develop nuclear energy has raised concerns in the “If I look at Iraq as an alternative, West, where policymakers have long asked why a country afloat in oil needs to build all I can say is, we definitely should reactors. The fears were confirmed when an Iranian dissident group announced in August 2002 that Iran was building two

have a better system to settle our secret nuclear facilities, one for enriching Pelletier/Corbis © Micheline uranium and another for making heavy water, which would be used for producing differences.... We clearly have a lot plutonium. An IAEA investigation confirmed that Iran had been conducting clandestine to learn about how to live in a activities, and thereafter began several rounds of high-level diplomacy, led by Britain, France and Germany (the “EU-3”), so-called civilized society.” while ElBaradei worked at the IAEA to persuade Iran to give up the program. What has made the confrontation so vex- of 2005, when it began to back a European remains hopeful that the parties will negoti- ing is the loophole at the heart of the exist- effort, Washington had maintained that ate, even if only because his experience on ing nonproliferation language: Uranium offering carrots of any kind would be a that score has been searing. “If I look at Iraq enrichment is not illegal per se under the reward for bad behavior.) For ElBaradei, this as an alternative, all I can say is we definitely NPT. Signatories, such as Iran, are per- turn of events came as welcome news and should have a better system to settle our dif- mitted to have, in technical parlance, the something of a vindication. “It is absolutely ferences,” he observes. “If I read the figures nuclear fuel cycle for the purpose of energy the right decision, and I’ve been saying that 120,000 civilians have died in the Iraq generation. The uranium used in reactors that for more than two years,” he says. “The conflict, aside from the hundreds of thou- needs to be enriched until the level of the new initiative is quite good…. [It] has a lot sands who died because of the ‘dumb sanc- fissile isotope, U-235, is about 4 percent. The of meat, which offers the option of normal- tions’”—he shakes his head and concludes— problem is that the same technology can be izing with Europe and the U.S. and could “we clearly have a lot to learn about how to used to make weapons-grade (roughly 90 have major implications for security in the live in a so-called civilized society.” percent U-235) uranium. Middle East. It is a few years overdue.” As one Western diplomat who is involved Even so, the success of the new proposal he crisis ElBaradei is trying to man- in the politicking over Iran and, like most is far from guaranteed. In early July, Iran age has long been dreaded. In 1963, officials, will speak only on the condition had declined to respond to the initiative, T President John F. Kennedy warned of anonymity, explains, “What worries us is saying it would not have an answer until late that as many as 25 nations might acquire not diversion from a safeguarded plant but August, angering the Western leaders who nuclear weapons by the 1970s. That night- mastering the techniques at a safeguarded demanded action sooner. Many observers mare scenario never materialized. In fact, plant that leads to the creation of a clandes- have taken such behavior as another indi- for a time, the global nonproliferation effort tine plant.” Despite what the NPT says, as cation that the Iranian government is deter- could count more successes than failures. A this diplomat puts it, “Good sense and legal mined to stall and postpone any talks until it passel of countries, including Argentina, obligation are in conflict.”

14 THE LAW SCHOOL AUTUMN 2006 nOBEL NEWS: Mohamed ElBaradei at home with his wife, Aida, and daughter, Laila, on the day he won the peace prize.

What ultimately makes the issue so ith so much riding on London, and his son, Mostafa, who works freighted is the widely held belief that Iran his work, it’s remark- in that same city as a production engineer represents a tipping point. North Korea’s able how little attention at CNN. Although ElBaradei travels relent- acquisition of a nuclear capability set off ElBaradei has received. lessly, he sees the two of them frequently, loud alarms beginning in the 1990s, but Scan Nexis and you will and they are always in touch. “We speak the consequences of its breakthrough were find no full-scale pro- almost every day or every other day,” Laila seen as limited compared with what might files of him in English—indeed, there are few says. “He’s learned how to text message, happen if Iran builds a nuclear arsenal. The W that are more in-depth than the short one and he sends me great one-liners. He has a reason is that North Korea is seen as a dead- on the IAEA Web site. But then he is some- great sense of humor and I’ve always been end regime with few ambitions beyond its what unusual as a public figure. Animated sorry he didn’t have a job where he could own survival. and voluble in conversation, but averse use his sense of humor.” Through one crisis Iranian acquisition of nuclear weapons, to the spotlight, ElBaradei is a man who after another, family has been ElBaradei’s on the other hand, would send shock waves would prefer to be at home in the evenings refuge. Laila recounts, “No matter how busy through one of the world’s most economi- plowing through piles of work in the com- my dad is, he always finds time for the bor- cally vital and politically volatile regions. pany of his wife, Aida—who must have been ing minutiae in my life. I’m getting married Imagine the Balkans around 1914, the global Vienna’s most elegant kindergarten teacher in September and he’s interested in what powder keg—only now the gunpowder has until her recent retirement—instead of tak- color the flowers should be and whether we been replaced by highly enriched uranium ing part in the never-ending roundelay of should have a band or a D.J.” and plutonium—and you have an idea of Viennese diplomatic receptions. His aides The absence of press coverage may also one potential outcome of the Iran crisis. seem used to defending him against the have something to do with the instinctive Imagine another American military inter- charge that he is aloof. “People sometimes belief by many in the media that an intervention in the Persian Gulf on the heels of think he’s arrogant,” says Tariq Rauf, a senior national civil servant untainted by scandal the debacle in Iraq (even though most strat- IAEA adviser and member of the ElBaradei who is devoting his efforts to nuclear disar- egists speak of a sustained air campaign kitchen cabinet, “but it’s more that he’s shy. mament must be a saint of sorts. The sus- and not the commitment of ground forces) He’s actually a very warm person.” picion, therefore, as George Orwell wrote with the attendant upheaval in the area He is a genuinely devoted family man— about Mahatma Gandhi, is that ElBaradei and throughout the Muslim world, and a fact universally cited by critics and friends would evoke “aesthetic distaste” in person. you have another. Mohamed ElBaradei has alike—who delights in spending time But ElBaradei is not a saint. He is a likable, plenty to worry about. with his daughter, Laila, who is a lawyer in worldly man who is anything but austere.

AUTUMN 2006 THE LAW SCHOOL 15 give peace a chance: Professor Thomas Franck, front row, fourth from the left, in 1972, with international fellows including Mohamed ElBaradei, in the far right corner, and Antoine van Dongen, front row, second from the left.

ohamed ElBaradei was born on calling for democracy and a free press. The mat. As Franck recalls, “His view was not your June 17, 1942, in Cairo—a dan- elder ElBaradei was harassed for his opin- basic view of Israel. He pretty well knew the M gerous time and place. Although ions, though he was later rehabilitated and fact that Israel existed and that was not going Egypt was nominally independent, it still recognized as a major figure of his era. to change. He was for finding some modus was dominated by Britain and, at that ElBaradei graduated from the University vivendi. He was always far more than an moment, Nazi troops under General Erwin of Cairo in 1962 with a degree in law and Egyptian studying in the United States, and Rommel were menacing from the west. The joined the Egyptian foreign service, for he never presented the case like an Egyptian First Battle of El Alamein occurred just a which he was posted to the U.N. mission official.” A fellow student from ElBaradei’s few weeks after ElBaradei’s birth, halting in New York. There he took advantage of a early days in New York and now a lifelong the German advance into Egypt outside of part-time master’s program that the NYU friend, Antoine van Dongen (M.C.J. ’71, LL.M. Alexandria. He came of age in the era of School of Law offered and studied under ’72) recalls that the future IAEA director gen- Gamal Abdel Nasser, the Egyptian leader Professor Thomas Franck, now the Murry eral “could be totally frolicky and asinine, as who cut the cord with Britain—a charismatic and Ida Becker Professor of Law Emeritus. we all could be, and then be totally serious champion of anticolonialism, Pan-Arabism Eventually, during the early 1970s, he took in debate and hold his own in conversation.” and the rights of the developing world. leave from his job to work for his J.S.D. in Van Dongen, who is the Netherlands’ ambas- ElBaradei comes from a family domi- international law. sador to Sweden, also saw a trait in ElBaradei nated by lawyers. Among the most distin- Franck, who is still close to his former that has become a hallmark of his career: guished were his maternal grandfather, Ali student, remembers him as being “very “If he thought he was right, then he really Haider Hegazi, who sat on Egypt’s Supreme much as he is today…cautious, levelheaded, thought he was right.” Court, and his father, Mostafa ElBaradei, sound, consciously unexciting—above all, If ElBaradei’s temperament was already who rose to become president of the sensible, moderate.” Anti-Zionism, of course, formed by the time he reached New York Egyptian Bar Association. ElBaradei enjoyed was a core tenet of Nasserism, and while City, he still had a powerful desire to broaden a youth of privilege in the clubs of Cairo and ElBaradei was in New York, Egypt and Israel his horizons. The 15 years he spent (with vacation homes of Alexandria, where the fought two wars. Still, the young Egyptian some interruptions) in the city were what he wealthiest Cairenes had their retreats. Yet wasn’t a prisoner either to national senti- calls “really the formative years.” He bought even his father ran afoul of Nasser in 1961 by ment or to his profession as an Arab diplo- a subscription to the opera, taught himself

16 THE LAW SCHOOL AUTUMN 2006 about modern art—for which he retains a contact with the 100 or so member nations. Shaker, however, was viewed as exactly passion—and became a diehard fan of both ElBaradei’s ascent to the top job at the the kind of person the U.S. did not want— the Yankees and the Knicks. Just the thought IAEA provides one of the more comic epi- a contentious proponent of Third World of that period puts a charge in his voice. “I sodes in the often-delicate apportionment causes who, it was felt, would not provide still vividly remember watching at the dorm of desirable spots in the international civil the necessary leadership. In Washington, when the Knicks won the 1973 world cham- service, though none of the missteps was he became known as the “other Mohamed,” pionship…Earl the Pearl [Monroe], [Walt] his. In the mid-1990s, it became clear that and a delicate dance ensued to persuade Frazier and Dave DeBusschere!” he exclaims Blix, a legendary leader of the IAEA, would Cairo that an Egyptian could indeed before a tone of wistful exasperation creeps step down after the completion of his fourth become the IAEA’s director general, just not in, one known to Knicks fans everywhere term, and, unusually, no country stepped the one the Egyptian president wanted. The who have been waiting for a repeat of that forward with a strong nominee. board of the IAEA held an informal vote, miracle. “And I have been following them Washington’s ambassador to the IAEA at Shaker was turned down and ElBaradei was from abroad for the last 33 years.” that time was John Ritch, a highly regarded elected. “Nonetheless, handing this job to Longtime friends and close aides testify envoy who decided that it was unwise to an Egyptian was a big step. Had Mohamed to the deep imprint that New York made. His leave the succession to chance. As he recalls not been in Vienna, had he not had the speechwriter, an American, Laban Coblentz, the story, Ritch, now director general of the support of the American ambassador and observes that to this day ElBaradei “peppers World Nuclear Association, which promotes a totally Western persona, he never would his speech with Americanisms like ‘step up the peaceful use of nuclear energy, felt at the have been considered,” says Ritch. For all to the plate’ and ‘full-court press.’” New York time that the opening at the top provided an that made him appealing to the U.S., how- did more than give ElBaradei a new set of opportunity to put a capable man in the job ever, ElBaradei has been nobody’s puppet, interests, though. “This was the time of the and send a valuable message of goodwill to and his independence has at times made counterculture,” he recalls, “and the Village the developing world. The IAEA had been him the target of sharp American criticism. was really the hub of everything that was hap- run by Swedes for 36 of its 40 years (the first The role of the organization ElBaradei pening.” Although cosmopolitan by Egyptian director, who served a single term, was for- inherited has shifted considerably during its standards, ElBaradei was confronted with a mer U.S. Congressman Sterling Cole). Ritch, existence. The IAEA grew out of the Atoms variety that was overwhelming and exhila- who was a friend of ElBaradei’s, recalls, for Peace initiative that President Dwight rating. “New York,” he says he came to recog- “Mohamed combined affability, experience D. Eisenhower unveiled at the U.N. in 1953. nize, “is this microcosm of the world; it is the and a Western orientation with a high sen- The core idea was that the power of the atom melting pot of every nationality of every race. You realize that we are one human family. I came to realize that living in New York.” After he finished his doctorate, ElBaradei “The Village was really the was posted by the Egyptian foreign service to its mission in Geneva, where he continued to work on the multilateral issues handled hub of everything that was by the various U.N. agencies there. From 1974 to 1978, he served as a special assistant to Egyptian Foreign Minister Ismail happening—the counterculture. Fahmy and subsequently worked with Boutros Boutros-Ghali, who later became Living in New York, I realized U.N. secretary-general. In 1980, the connection ElBaradei had forged with NYU and, in particular, with Thomas Franck proved fortu- that we are one human family.” itous for the rising diplomat. The U.N. asked Franck to lead its Institute for Training and Research (UNITAR), an agency that, despite sitivity to the developing world’s perspec- offered fabulous promise in terms of cheap its name, undertook internal audits and tive.” He was, in Ritch’s view, the complete energy, and the U.S. and others who had the evaluations of U.N. programs. Franck made package because, he says, “there is always technology would share it with those who a condition of his hiring that he be able to a chasm between developing countries and wanted it, provided they forswore the devel- bring along ElBaradei, and with that the developed countries, with the former putting opment of atomic weapons. The IAEA, which Egyptian returned to New York and joined a lot more emphasis on receiving assistance was born four years later, was envisioned as the international civil service. During this and the latter wanting to focus on nonprolif- the agency that would regulate this bargain. period, between 1981 and 1987, he was also eration issues. ElBaradei, with his nonprolif- As time went on, however, the agency’s an adjunct professor at the NYU School of eration credentials and Western perspective, role as middleman in the transfer of peace- Law. He eventually came to the attention seemed a good person to bridge the gap.” ful nuclear technology did not develop of Hans Blix, then the new director general At this point, behind-the-scenes diplo- as quickly as its role as global nuclear cop, of the IAEA, who hired ElBaradei to open macy turned into a high-level game of tele- which was enshrined in the Nuclear Non- the Vienna-based organization’s office in phone. Word reached Cairo that an Egyptian Proliferation Treaty. The treaty provided New York in 1984. At the IAEA, he flourished, could become director general, and Pres that the IAEA could inspect a signatory’s moving to headquarters as chief of the legal ident Hosni Mubarak decided to nominate nuclear facilities, but only those the signa- division in 1987. He later became head of a personal favorite of his, Mohamed Shaker, tory declared, leaving open the possibility external relations—essentially the agency’s who would later serve as Egyptian ambas- of clandestine facilities. The inadequacy of foreign minister—responsible for overseeing sador to the U.K. that arrangement became clear after the

AUTUMN 2006 THE LAW SCHOOL 17 1991 Gulf War, when it was revealed that been scandal-free and is regarded as the the attacks of September 11 and the Bush Saddam Hussein’s nuclear program had jewel in the crown of the network of interna- administration’s decision to end the regime been alarmingly close to giving him the tional organizations. Another is by uphold- of Saddam Hussein. As he sought to build bomb he coveted. ing the original vision at the heart of the NPT. public support in 2002–03 for an invasion, In the years since, the IAEA has added an That is, he has continued to call for those President George W. Bush told the nation “additional protocol” to its earlier safeguards NPT signatories that have nuclear weapons about aluminum tubes that Hussein was agreements that gives the organization’s to adhere to the treaty’s “bargain,” which procuring for use in the centrifuges used inspectors enhanced access to nuclear requires them to reduce their arsenals and for enriching uranium and about Baghdad’s facilities. Thus far, 107 countries have signed pursue the abolition of nuclear weapons, effort to buy uranium in Niger. Vice President the protocol, but only 74 have ratified it. (In and in return, states that do not possess the Dick Cheney declared his “absolute certainty” late 2005, after the IAEA rebuked Iran for weapons already, don’t develop them. that Saddam was reconstituting his nuclear not cooperating sufficiently with inspec- Although the political elites of the program and working to build a bomb. tions, Tehran announced that it would nuclear powers have long rolled their col- An ambassador, the 17th-century English no longer act as if bound by the protocol, lective eyes at this quid pro quo, ElBaradei diplomat Henry Wotton famously declared, which it had signed but not ratified.) Efforts has never tired of invoking it and prodding is an honest man sent abroad to lie for the to strengthen the nonproliferation regime the countries that pay much of his agency’s good of his country. The task of a senior also failed at the latest five-year review con- budget—and provide it with a large amount international civil servant is worse: He or ference of the NPT, which was held in New of the intelligence that is essential to its she must tell the truth to powerful leaders York in May 2005. work—to do their bit. At times he has voiced for the good of an anonymous international If events have conspired to make the non- this in an acid tone, likening the nuclear- community, and in doing so, persuade proliferation regime look more like a leaky weapons states to those who “continue to them to reconsider their actions without so and possibly sinking ship, ElBaradei, like his dangle a cigarette from their mouth and tell angering them that they turn vengeful. predecessor Blix, has done an exceptional everybody else not to smoke.” In particu- After the tense diplomacy of late 2002, job of keeping the pumps operating and the lar, recent moves in the United States to de Hussein allowed teams of U.N. and IAEA vessel afloat. Part of his success has been the velop a new generation of nuclear warheads inspectors to return to Iraq to search for signs result of his passionate belief in multilateral have elicited his outrage. “How can the U.S., of chemical, biological and nuclear weap- institutions and their ability to deliver fair- on the one hand, say every country should ons. As everyone remembers, the inspec- ness in international politics. He explains, give up their nuclear weapons and on the tors found nothing to change the IAEA’s “The whole concept of multilateral institu- other develop these bunker-buster mini- conclusion that Iraq had no nuclear-weap- tions is that you sit together and cut a deal nukes?” he asks. ons program. On March 7, 2003, ElBaradei that is fair and equitable to everybody…. You reported in sober terms to the U.N. Security never get your way 100 percent and I don’t inally, ElBaradei has maintained the Council that on the basis of inspections at think in any area now any one country can standing of the IAEA by refusing to 141 suspected sites, there was “no evidence get 100 percent…. One-hundred-percent se F bend before the powerful—or to shy or plausible indication of the revival of a curity for one country is 100 percent insecu- away from telling them unwelcome truths, nuclear-weapon program in Iraq.” In addi- rity for another, so you just can’t have it.” In as he did during the run-up to the Iraq war. tion, IAEA researchers argued—as many this regard, ElBaradei is a descendant of the This characteristic of the IAEA director gen- within the U.S. intelligence community did dedicated international civil servants who eral only became visible midway through secretly as well—that the aluminum tubes worked in the heroic age of the U.N., such as his tenure, after the Bush administration were for conventional battlefield rocket Ralph Bunche and the director general’s own began. So far as the Clinton administration production. IAEA personnel also estab- hero, Dag Hammarskjöld. One American was concerned, dealings with ElBaradei lished that the documents that purported to who has long had dealings with ElBaradei were smooth, according to Gary Samore, show that Iraq was seeking to buy uranium sums it up by saying, “He sees himself more who served as senior director for nonpro- in Niger were forgeries. as a representative of the nonproliferation liferation on the National Security Council. None of this endeared Mohamed regime and international diplomacy.” One continuing concern was Iraq’s nuclear- ElBaradei to the Bush team. Secretary of Passion and high-mindedness, of course, weapons program, which the IAEA inspec- State Colin Powell, who had staked his repu- are only part of the equation. Another key tors believed had been fully dismantled tation a month earlier on charges of Iraqi has been maintaining the agency’s repu- before they were thrown out of the coun- subterfuge, responded to the director gen- tation. According to David Waller, deputy try in 1998. “We were pretty confident that eral’s remarks by saying, “I also listened to director of the IAEA, who is the highest- Iraq’s nuclear program had been accounted Dr. ElBaradei’s report with great interest. As ranking American at the agency and was for,” Samore explains. “The only issue was we all know, in 1991 the International Atomic put forward for his position by President the IAEA wanting to declare that the file George H.W. Bush after serving in the was closed, and they wanted to shift to long- Reagan administration, ElBaradei “believes term monitoring. We didn’t want them to ATOMIC ENERGY: clockwise from top left, credibility is the lifeblood of this organiza- do that because it would add to pressure Mohamed ElBaradei with U.N. Secretary-General tion, and when we lose that, we’re finished.” to lift sanctions.” With inspectors unable to Kofi Annan (right) and Hans Blix, former chief U.N. He has preserved that credibility in sev- regain entry into Iraq, the issue of keeping weapons inspector, in 2003; with Yukiya Amano, chairman of the IAEA board, last March; with eral ways. The first is by running an organi- the “nuclear file” open was not a very con- Hassan Rohani, then-Secretary of Iran’s Supreme zation whose ethical standards have never tentious one. Council on National Security, in 2003; with Iran’s been challenged. While the rest of the U.N. Given his history as an American favor- ambassador to the IAEA, Ali Asghar Soltanieh, in system has weathered a series of debilitat- ite, what came later in ElBaradei’s dealings April 2006; with Hans Blix and British P.M. Tony ing crises, including the corruption of the with the remaining superpower was surpris- Blair in 2003; with then-U.S. Secretary of State

Oil-for-Food program in Iraq, the IAEA has ing and bitter. The turning point came after Colin Powell in 2002. Photos: ClockwiseGetty top left, from Images; Dieter Nagl/AFP/Getty Images; Images; Kenare/AFP/Getty Mehri/AFP/Getty Behrouz Atta Images; Waldie/Getty Images; Ian Stefan Zaklin/Getty Images

18 THE LAW SCHOOL AUTUMN 2006

Energy Agency was just days away from swayed either way.” ElBaradei’s old friend tions that he was trying to help Iran avoid a determining that Iraq did not have a nuclear Antoine van Dongen agrees: “He has an confrontation over its nuclear program. The program. We soon found out otherwise.” inner strength that he hardly needs to flaunt leak about the surveillance may well have The remark was true but not exactly on because people know it is there.” ElBaradei come from one of any number of career U.S. point, since pre–Gulf War inspections were himself feels that the ordeal emboldened government officials who were appalled performed the traditional way—under Iraqi him. He says, “If you are a sole individual, that the U.S. would seek to oust ElBaradei. rules. Because of the U.N. resolution under and you’re up against the sole superpower, Whether the eavesdropping produced which the 2003 inspections were conducted, and you can come out on the winning side... anything useful or not, once the story became inspectors had universal access and Iraqi it gave me a lot of credibility afterward. I public, the coalition-building collapsed. For compliance was required to fulfill the terms was one of the few—and I don’t like to say a time, Powell claimed that Washington was set by the Security Council. Nonetheless, it—who got it right on Iraq. It shows that you motivated by its belief in the “Geneva Rule,” Cheney announced on television that the really have to stick to the facts.” a general agreement by major donors to IAEA had “consistently underestimated or That extra toughness was valuable, too, international organizations that two terms missed what it was Saddam Hussein was because being right about Iraq was not the for leaders of those institutions was enough. doing,” though he adduced no proof for solution to ElBaradei’s problems with the But even Powell admitted that the rule was his point, adding, “I don’t have any reason Bush administration. With ElBaradei’s sec- not uniformly observed; in fact, at the IAEA to believe they’re any more valid this time ond term coming to an end in early 2005, Hans Blix served four terms, and his prede- than they’ve been in the past.” As one IAEA U.S. officials began seeking a way to prevent cessor, Sigvard Eklund, served five. insider recalls, ElBaradei, going every bit him from winning a third. John R. Bolton, So the argument made no headway, of the way to persuade the decision-mak- the hard-charging conservative who served nor did the U.S. effort to persuade a leaders in Washington to rethink matters, met as Under Secretary of State for Arms Control ing Australian diplomat to take the job, or in 2003 with Bush, Cheney and Defense and International Security and was later to find a suitable South Korean or Brazilian. Secretary Donald Rumsfeld. This individual given a recess appointment as U.S. ambas- (Questions have been raised about both describes that meeting as an empty ritual. sador to the U.N., made denying ElBaradei countries’ intentions regarding their nuclear “You could tell that they were wondering a third term a personal mission. According programs, making their candidates unten- why they were wasting their time with him,” to Lawrence Wilkerson, who served as able.) No other country ever publicly owned he says. ElBaradei later termed the outbreak chief of staff to Secretary of State Colin up to sharing America’s concerns, and of war in Iraq on March 20, 2003, “the sad- Powell, Bolton was “going out of his way to ElBaradei was reelected to his third term in dest day of my life.” bad-mouth him, to make sure that every- June 2005. Fortified by his vindication on body knew that the maximum power of the issue of Iraq’s nuclear efforts, the direc- hat is striking about ElBaradei’s the United States would be brought to bear tor general was unfazed. “I was in a win-win performance during this epi- against them if he were brought back in.” situation,” he says. “If I get reelected, that is W sode is the extraordinary com- Since the campaign to remove ElBaradei an affirmation of the international commu- posure he showed throughout. It was the was conducted behind the curtains of diplo- nity. And if not, I will have the silent majority ultimate nightmare scenario for the leader of macy, it is not clear how much the effort of the world understanding that this was the an international agency: to be pitted against was motivated by anger at the role he had result of a conflict with a superpower…and his main funder, the most powerful country played in the run-up to the Iraq war and I would be going out a hero in the eyes of on the planet and the one whose support how much by the belief that he was “soft on the people.” As his son, Mostafa, puts it, in is most vital to his group’s work. Although Iran,” as one U.S. official put it. The attempt the last few years, Mohamed ElBaradei “has people around him confess those were dark has also been widely depicted as a solo one, had crises on his hands, but he has grown days, “during the period of pressure, he but diplomats from other Western countries more confident as he has gone along.” never wavered, just did his business,” says concede that there was broader interest in Professional survival is one thing; one diplomat who watched him closely. T.P. finding a new leader for the agency—and global acclaim is another. The latter came Sreenivasan, then India’s ambassador to the some believe a coalition might have been ElBaradei’s way four months after his reelec- IAEA and Austria, said that ElBaradei fully assembled to block ElBaradei’s reelection. tion, when he was sitting at home one morn- recognized what he was up against. “He was According to one non-American Western ing watching CNN with his wife and heard agonizing over it, because he didn’t want a diplomat who declined to be identified, his name pronounced by someone speak- war,” says Sreenivasan. “He didn’t want to there have been fairly widespread qualms ing Norwegian. (The shock was so great, provoke the Americans, but at the same about ElBaradei’s leadership: “Our frustra- says Aida ElBaradei, “I can understand that time he was very precise and very clear.” tions with him have centered on the fact people can have heart attacks from joy.”) As with many individuals with power- that he has never had much sympathy for The chairman of the Norwegian Nobel ful convictions, it is not easy to say where halting work on enrichment and reprocess- Committee, Ole Danbolt Mjøs, had tried to they draw their strength. “What makes him ing in Iran, despite all the information the call ElBaradei at his office but to no avail, tick?” repeats his son, Mostafa, in response inspectors have brought to light.” so the announcement was made without to a question. “It’s almost as much a mys- It was, nonetheless, the U.S. treat- informing the winner. There had been plenty tery to me…. A lot of it comes from his father ment of ElBaradei that filled the headlines. of buzz about ElBaradei and the IAEA being and his upbringing. My grandfather was a According to press reports, IAEA officials in contention again for the prize (they had very moral man. From what I’ve been told, complained of a cut in the flow of intelli- reportedly come close the year before). But speaking out in the time of oppression in gence from the U.S., which is essential for not having heard anything, he had assumed Egypt for democracy and freedom, I expect the IAEA’s work. In December 2004, the it had gone to someone else. some of [my father’s] strength comes from Washington Post reported that U.S. intelli- ElBaradei may have been shocked, but that and from our family. He has his set of gence agents had been tapping ElBaradei’s the Nobel Committee’s decision to give the beliefs and his value system, and he is not calls, possibly in the hope of finding indica- prize jointly to the IAEA and its leader was

20 THE LAW SCHOOL AUTUMN 2006 not exactly surprising. It has been awarded 2002 prize to former President Jimmy Carter, ElBaradei was trapped by the agency’s “con- eight times to officials of agencies within who had been outspoken in his opposition tradictory role, as nuclear policeman and the U.N. system and at least half a dozen to the war in Iraq, and the 2005 prize in lit- nuclear salesman.” times to proponents of nuclear disarma- erature to British playwright Harold Pinter, a John Ritch disagrees. “The IAEA will ment. As individuals and institutions, these vitriolic critic of American foreign policy. always be subject to ideological criticism for two groups have been particularly attractive Ever the diplomat, ElBaradei insisted even existing. But it could hardly be more to a committee charged with carrying out that the world’s preeminent award not be unlike a salesman. Indeed, a valid criti- the wishes of Alfred Nobel, the 19th-century seen as a reproach. “I don’t see it as a cri- cism would be that the agency has not fully inventor of dynamite, who said he wanted tique of the U.S.,” he said at the time. “We embraced the urgent necessity of promot- his legacy awarded to those who had had disagreement before the Iraq war, hon- ing the peaceful uses of nuclear energy. The achieved great strides toward the “abolition est disagreement. We could have been IAEA should be leading the way.” or reduction of standing armies.” wrong, they could have been right.” Instead, What seems to have particularly attracted he said, the prize should be seen as “a mes- uring the Nobel festivities in Oslo, the Norwegians was how honoring the IAEA sage: Hey, guys, you need to get your act ElBaradei enjoyed his share of and its leader would lend support to the inter- together, you need to work together in mul- D adulation. “Endured” might be a national system, and in their announcement tinational institutions.” In the time between better way to put it, though, as he was thrust they said explicitly that at a time of a grow- the campaign to unseat ElBaradei and the into a spotlight that all but overwhelmed ing nuclear threat, the “Nobel Committee announcement of the Nobel, the drama- him. One of the events involved a concert in wishes to underline that this threat must be tis personae had changed in Washington. his honor, and he came onstage to deliver a met through the broadest possible interna- From the State Department, both Secretary short off-the-cuff speech. The audience gave tional cooperation. This principle finds its of State Condoleezza Rice and Under him a prolonged round of applause before clearest expression today in the work of the Secretary for Political Affairs R. Nicholas he started, and when ElBaradei finished IAEA and its director general.” ElBaradei was Burns congratulated the director general. speaking, he received another resounding singled out as “an unafraid advocate” of the Not everyone was so laudatory, however, ovation from the 4,000-member audience. nonproliferation regime. and the reactions to the prize say some- After a few seconds of clapping, he turned to Though Mjøs denied that the award was thing about the impossibility of satisfying walk off—only to be pulled back on stage by “a kick in the shin of any nation, any leader,” everyone while running an agency that actresses Julianne Moore and Salma Hayek. the language suggested that ElBaradei’s deals with things nuclear. Mike Townsley, a The prize ceremony also afforded the recent run-ins with the U.S. government spokesman for the environmentalist group winner the platform of a lifetime, and for that were very much on the minds of the com- Greenpeace International, which strongly ElBaradei overcame his shyness. Although mittee members. The award followed the opposes nuclear power, commented that even close friends consider him an uneven

SCHOOL TIES: Jay Furman ’71, Provost David McLaughlin and NYU President John Sexton present Mohamed ElBaradei with an honorary LL.D. in 2004. speaker, he delivered a remarkable piece of responsibility, would think of advocating The IAEA’s annual budget is $347 million oratory, spelling out his understanding of the seriously. But ElBaradei has made it to (€273 million), and most of that goes to the myriad interconnections among some of the the pinnacle of international service and agency’s inspections work. But to the extent ills that plague the world, from ground-level does not tire of making that point—to the he has been able, ElBaradei has pushed poverty to weapons of mass destruction. The irritation of officials who believe that the projects that address concerns at what connections, he continued, can easily be interconnectedness of all things and the might be called the bottom end of his great traced to the most fundamental inequities: failures of the world order are not the IAEA chain of human unhappiness. Using a vari- “In the real world, this imbalance in living director general’s business. “In the Nobel ety of nuclear-related technologies, IAEA conditions inevitably leads to inequality of speech, he went well beyond his mandate,” scientists are working on improving agricul- opportunity and, in many cases, loss of hope. grouses one senior American official. In tural yields in developing nations, allowing And what is worse, all too often the plight of the view of this diplomat—and more than for more efficient water use and working to the poor is compounded by and results in a few others—ElBaradei’s job is to run an bring advanced cancer therapy to nations human-rights abuses, a lack of good gov- international organization with a technical that have little or none available. ernance and a deep sense of injustice. This mandate, one that requires that he present profound desire to avoid military conflict and a high-wire talent for A redefining the boundaries of his “We pay less than 10 percent job have been the hallmarks of ElBaradei’s tenure at the IAEA. Both of these qualities have been severely taxed by the continu- of what we spend on armaments on ing tensions over Iran, and how that plays out will likely provide the final verdict on his time in office. For a while, it looked as development. It comes back to haunt though there was reason for optimism that a full-blown crisis would be escaped. In us in the form of extremist groups, October 2003 Iran forged an agreement to suspend its enrichment activities while negotiations were underway with the EU-3. in the form of disaffected people. But in August 2005, the country reneged and resumed efforts at a facility in Isfahan. We look at the symptoms; we do not Positions hardened after the election of extremist Mahmoud Ahmadinejad, who declared Iran’s absolute determination to look at the big picture.” continue doing what it was doing. The failure of the negotiations soon put ElBaradei and the U.S. at loggerheads again. combination naturally creates a most fertile factual accounts of what different coun- Under the IAEA charter, if the director gen- breeding ground for civil wars, organized tries are doing with their nuclear facilities. eral reports to his board of governors that a crime and extremism in its different forms.” Taking on the structure of global politics is signatory is not living up to its treaty agree- “It’s not just poverty per se, it’s the sense something for national leaders and the sec- ments and is found in violation by the IAEA of humiliation and injustice. When some- retary-general of the U.N. board, that country is to be reported to the body feels humiliated, they just go bananas, The critics may have a point, but, Nobel U.N. Security Council for further action. But and that is what happens,” ElBaradei ob in hand, ElBaradei is not shying away from in the eyes of the U.S. and its allies, ElBaradei serves while talking about the sociology of the issue. The international community’s was ducking his responsibility and working conflict in his Vienna office. Like many ana- misallocation of resources between the beyond his portfolio to keep the problem lysts of radical Islamist violence, ElBaradei tools of conflict resolution and those of war at the IAEA and prevent an escalation of believes that the rise of the new terror- is a subject that he turns to in conversation tensions. As one Western diplomat, who ism—and September 11 itself—has roots in a repeatedly and in a tone that suggests he acknowledges that he finds ElBaradei both sense of civilizational humiliation. The com- has neither illusions about the likelihood an admirable and infuriating figure, puts it, mitment to alleviate suffering is one that of broad change nor regret for voicing his “Once the suspension was no longer hon- he takes personally, too. The $1.3 million dismay. “I think the whole budget of the ored by Iran, we had another problem with in Nobel prize money was divided equally entire U.N. system plus the other [multilat- him. He was trying to influence members between the IAEA and its director general. eral] organizations is not more than, like, $5 not to take a direction that was provided for The agency donated its share of the award billion. And against that you are talking $1 by IAEA statutes.” to a new fund for cancer treatment and trillion on armaments…. When you look at ElBaradei did so, critics contend, by childhood nutrition. ElBaradei gave his half the figures, it just shocks you,” he observes. avoiding inevitable conclusions in his of the prize to a group of Cairo orphanages Turning to another side of the equation, he reports and through behind-the-scenes with which his sister-in-law works. says, “We also pay less than 10 percent of entreaties to officials from the various The notion that we have our most funda- what we spend on armaments on develop- countries on the board to go slow on Iran. mental priorities all wrong falls into the cat- ment. Well, that comes back to haunt us in Repeatedly, the reports have documented egory of all-but-universally-accepted and the form of extremist groups, in the form of an array of failures by Iran to comply with is therefore something that few grown-ups, disaffected people…. We look at the symp- its treaty obligations, but ElBaradei has

especially those in places of international toms; we do not look at the big picture.” avoided declaring that Iran has a nuclear- Photos: Press; Associated Dean Calma/IAEA

22 THE LAW SCHOOL AUTUMN 2006 weapons program, angering Washington is “a political animal and a diplomat, and he open the door for the U.S. and others taking and other Western capitals. “Some day, knows diplomacy is more fun than manag- it upon themselves to enforce the resolu- we’ll see the ‘director’s cuts’ of the reports,” ing a large institution.” A further part of this tion in Iran militarily, as Washington argued says one American diplomat, whose opin- critique is that ElBaradei has prevented the it did in invading Iraq. The White House ion is shared by many, including some who U.S. and its allies from putting all the neces- continues to call for a diplomatic solution, are ardent critics of the Bush administration. sary pressure to bear on Iran, and that his and no one close to the issue believes that “There is no question that they go through an desire to prevent armed conflict is at odds military action would occur before a sus- editing process…. He’s not prepared to con- with his technical duties. But ElBaradei tained effort to isolate and penalize Iran front the Iranians as strongly as we are.” rejects the contention that he is out of line. economically through sanctions. Ultimately, It is the responsibility of the IAEA director “I’ve heard that a lot in the past. I don’t hear it ElBaradei would lose the fight against refer- general to oversee the production of reports as much now. People said I was talking out- ring Iran to the Security Council, but Russia for the organization’s board and the U.N., but side of the box and this is a technical organi- and China have been reluctant to authorize in this case, his critics say, ElBaradei has used zation. I think that is a fallacy,” he says. “Yes, sanctions, thus postponing a possible con- his stature to steer the process away from this is a technical organization, but we work flict. Still, those close to ElBaradei argue that a confrontation with Iran—and that this is in a very politically charged environment, he does not want to go that route, at least as another instance of his mixing in the politics and you cannot separate the politics from long as IAEA inspectors can work in Iran. of the issue rather than confining himself to the technical work we do.” Much of his job, As his speechwriter, Coblentz, explains, the technical issues with whose adjudica- he says, is to identify the various options ElBaradei “believes that confrontation is so tion he is charged. Even ElBaradei’s former available to the parties: “I don’t meddle in counterproductive and that it will take so deputy, Pierre Goldschmidt, who oversaw the politics, but I have to be aware of the long to pick up the pieces that…diplomacy many of the inspections, took a notably political implications of what we do. And has to be the answer.” tougher stance after his 2005 retirement and I feel I owe it to the member states to tell For ElBaradei, it comes down to a mat- urged the Security Council to get involved. them how I see things from where I sit.” He ter of moral responsibility: “You can act as “ElBaradei says that any judgment about Iran adds, “I look at the big picture. I have to do a bureaucrat in the negative sense and do should be made on their intentions,” he told verification, but I also have to see how the your job and go home. Or you can realize the Sunday Telegraph. “My view is that we international community can use this for a that there is something you can do to make should look at the indications, not the inten- peaceful resolution.” people safer and better off. And you do what tions, and then decide…. As things stand, we Underlying his actions, his aides say, is a you have to do.” ■ cannot prove that Iran has a military nuclear sense that moving the issue to the Security programme. But do you have indications that Council would be a fateful mistake that Daniel Benjamin, coauthor of The Next this is the case? This is the question I think could lead ultimately to military action. Attack: The Failure of the War on Terror and everyone should now be asking.” Throughout the latest crisis, the U.S. has a Strategy for Getting it Right, is a senior fel- The same diplomat who criticized made clear that its objective is to obtain a low in the International Security Program ElBaradei for seeking to persuade board resolution under Chapter VII of the U.N. at the Center for Strategic and International members not to refer the issue of Iran to Charter, which would make the issue one Studies. He served on the National Security the U.N. believes that the director general of a threat to peace. In principle, that could Council during the Clinton administration.

BEARING THE TORCH: Mohamed ElBaradei lights the Nobel flame with Yukiya Amano, the chairman of the IAEA Board of Governors; with the 2005 peace prize. the rules of the game

grandmasters, All: The NYU School of Law civil procedure faculty. For a key to who’s who, please see page 35.

24 THE LAW SCHOOL AUTUMN 2006 the rules of the game by Robin Pogrebin and Edward Klaris Illustrations by Stan Fellows photography by juliana thom as Suzanne Barlyn and Larry Reibstein contributed to this story.

AUTUMN 2006 THE LAW SCHOOL 25 very first-year law student is required to take point. Whether a plaintiff has a right to a jury trial matters. How plaintiffs can aggre- Civil Procedure, a daunting course with a gate their claims through a class action matters. The key to civil procedure, suggests massive, 1,200-plus page textbook on the Professor Samuel Issacharoff, is to think of it as a chess game with an expanding uni- Federal Rules of Civil Procedure. The tempta- verse of choices—any of which can make or break your case. “A good player always con- E siders the implications many moves down tion to treat this foundation course like bitter medicine— the road,” he says. “And a weak player sees just learn the rules, please—is strong. But at the NYU only the immediate issue. In this way, what students are being trained for is very similar School of Law, the faculty is passionate about civ pro— to how you train chess players.” That description largely captures the as teachers, as scholars and as lawyers. They call it “the mission of the civil procedure core faculty at the Law School, a group of professors lawyer’s toolbox” or “the keys to the kingdom,” and they regarded as the strongest in the nation. While teaching the doctrine to first-year law even compare it to a certain cerebral board game.... students, professors—from Oscar Chase to Helen Hershkoff, from Samuel Issacharoff When Michael Gordon ’91 thinks back to jurisdiction for purposes of being sued? How to Burt Neuborne, and from Geoffrey Miller his first year as a student at the New York quaint that seems today. Now, the Internet, to Linda Silberman—are preparing their University School of Law, one memory that technology and globalization have made a students to use this basic subject in a rap- still makes him smile is of his Civil Procedure mishmash of the idea of jurisdiction. “You idly changing world. In addition to teach- class with Professor Samuel Estreicher. The can solicit via a BlackBerry,” Gordon says. ing, the professors have also participated professor would pick one student for ques- “You can solicit via the Internet. Somebody in some of the most significant cases or tioning and would stick with him for what can click on a Web site that you’ve created projects in civil procedure recently, includ- sometimes seemed the entire two-hour and thus, you can expect that someone in ing Neuborne, who won an historic settle- class. “Mr. So-and-So, today is your day in Ohio will see it and want to do business with ment in the cases of Holocaust survivors the sun,” Gordon recalls Estreicher’s words. you.” Where do you go in a dispute? And suing Swiss banks; Silberman, as part of a The prospect of being called on motivated then of course there are discovery issues, U.S. State Department delegation involved Gordon to study hard. Estreicher’s “schol- such as email, and electronic intellectual in the negotiation of an international treaty arship was so impressive you wanted to be property disputes that weren’t contem- on jurisdiction and judgments for transna- able to communicate on the same level,” plated when Gordon was a student. What to tional custody disputes; and Miller, who is says Gordon. “His rigorous standards chal- do about a Greenwich, Connecticut, hedge teasing out statistics that measure the effi- lenged you to be a better legal thinker.” As it fund whose failed assets are overseas, or a ciency of class action suits and arbitration. happened, though, Gordon, now a partner U.S.-based corporation that is accused of Furthermore, several professors, includ- at Katten Muchin Rosenman in New York, despoiling the environment abroad, or a U.S. ing Rochelle Dreyfuss, Samuel Estreicher, was never called on, so if the class was a citizen accused of being an enemy combat- Barry Friedman, Andreas Lowenfeld and nail-biter, at least he became quite profi- ant and held at an American military base in Nancy Morawetz, teach clinics, seminars cient. He says, “One of the reasons why civ a foreign country? No wonder some might and upper-level courses that deepen the pro has stuck with me was that I treated it yearn for the days of the airline case. students’ understanding of the subject and as my top priority.” And yet, as the Law School faculty push the boundaries of civil procedure. To But Gordon also laughs at some of the preaches, the basic civil procedure doc- cite a few examples: Dreyfuss is working on cases discussed that at the time seemed so trines are the same. Pennoyer v. Neff, which jurisdictional issues in intellectual prop- complex. If someone is served a summons set physical presence as the guiding factor erty law; Estreicher is one of the leading on an airplane, for instance, what is the in jurisdiction, still matters as a starting supporters of arbitration in employment

“Procedure is the most wonderful law school course to teach…. The subject matter—which [students] suspect is going to bore them—actually deals with some of the most fundamental issues they will face as they begin to think

about law as an institution.” John Sexton, President, New York University

26 THE LAW SCHOOL AUTUMN 2006 geoffrey miller, Stuyvesant P. Comfort Professor of Law; Samuel issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law

disputes; and Morawetz is breaking new setti ng up past 25 years at Harvard, is known by every ground in applying the rules of habeas cor- lawyer in the country for coauthoring the pus to immigration rights cases. the board leading multivolume treatise on civil proce- “The NYU civil procedure faculty is a John Sexton, dean of the Law School from dure, Federal Practice and Procedure, which magnificent group,” says Arthur R. Miller, a 1988 to 2002 and now the president of NYU, was first published in 1969 and to which legendary Harvard Law School civil proce- likes to tell the story of how he got hooked on he continues to contribute. Every law stu- dure professor himself who has firsthand civil procedure. When he was a 1L at Harvard dent knows him for coauthoring one of the knowledge of the faculty as a long-time in the ’70s, he took a civil procedure class leading civil procedure casebooks, and for visiting professor at the NYU School of Law. with Arthur Miller. Miller (no relation to NYU his study guides for civil procedure exams “Collectively, they probably have about 150 colleague Geoffrey Miller) put Sexton on the and the bar exam. He is familiar to a gen- years of classroom experience in the field spot for the entire class—just like Estreicher eral audience, too, for moderating the Fred and subspecialties in complex, transna- has done with his students—including some Friendly roundtables on PBS for many years. tional, constitutional, civil rights and com- heated exchanges. Miller later said he “never Indeed, Miller can count more than one mercial litigation as well as empirical work enjoyed a class this much.” Sexton felt the member of NYU’s first-class civil procedure on the subject,” he says. “In my opinion, it’s same way, and later taught Civil Procedure faculty among his former students. Linda the best group in the law teaching business.” for 20 years beginning in 1981. Silberman, the Martin Lipton Professor of Harvard Law School Professor of Law “To me, Procedure is the most wonder- Law, is a former student of Miller’s from Emeritus David Shapiro, an “icon in federal ful law school course to teach,” Sexton says. Michigan. She started teaching at the NYU courts jurisprudence” who has also visited “First, you’re getting the students when they School of Law in 1971. the NYU School of Law several times, drills are just beginning to think seriously about Silberman now stands as one of the down even further: “Burt teaches from the law. Second, the subject matter of the most senior members of the civil procedure perspective of an experienced litigator. Sam course itself—which they suspect as they faculty. Of the current crop, only Andreas Estreicher is primarily involved in labor enter is going to bore them—actually deals Lowenfeld, who arrived in 1967, has been and employment law. Rochelle Dreyfuss is with some of the most fundamental issues teaching civil procedure longer. Silberman involved in technology. Silberman’s per- that they will face as they begin to think was followed by Neuborne, who started spective is within an increasingly interna- about law as an institution.” as a full-time professor in 1974, and then tional sphere and Sam Issacharoff’s is pri- Sexton isn’t the only one to have come by Estreicher in 1978, Chase in 1980 and marily class actions and aggregate litigation.” under Arthur Miller’s spell. Miller, who first Dreyfuss in 1983. Jump ahead to 1995 and Says Neuborne, “There isn’t any place—any taught Civil Procedure at the University the arrival of Geoffrey Miller, wooed from place—that comes close to NYU.” of Michigan Law School and then for the the University of Chicago Law School, and

AUTUMN 2006 THE LAW SCHOOL 27 Hershkoff, who was in the legal trenches for Opening Moves to appear before it) and the Erie Doctrine, almost 20 years. Just last year came the lat- which says that one must apply state law est big catch: Samuel Issacharoff, recruited Like many law schools, NYU’s has evolved when a federal court has diversity jurisdic- from Columbia Law School. in the past four decades from professional, tion (with parties from different states). As it happens, this is a pretty collegial practically oriented teaching to a more aca- Professors cover other procedural as- bunch. Starting in the spring of 2005, the demic, theoretical program—“much more pects of civil litigation, depending on their professors began meeting on Tuesdays for like a graduate school model,” says Silberman. particular interests. Some professors spend lunch in the faculty library. The impetus was Faculty usually take one or the other view of time with the Federal Rules of Civil Pro‑ to take advantage of the presence of Arthur what a law school should be. But ask the civil cedure, examining, say, summary judgment Miller and David Shapiro, both visiting that procedure faculty today about the practical and dismissal, and joinder (which allows term from Harvard. There was no schedule, versus theoretical issue, and the answer is a party to combine multiple claims in one no pressure from the dean to meet—just an fairly uniform. “If you don’t successfully lawsuit) or class actions. Other professors impromptu, bring-a-sandwich lunch gath- learn the theory, you can’t provide the rule spend time on questions of finality, which ering that has turned into a semiregular in a practical way,” says Oscar Chase. Helen refers to the binding effect of judgments. Tuesday event. “It’s an occasion when law Hershkoff sees in civil procedure “a con- Many cover all of these topics. nerds can talk to each other without risk- vergence of theory and practice.” Indeed, But beyond picking and choosing which ing public humiliation,” Issacharoff says Silberman’s casebook, coedited with two procedural devices they want to include, drily. Indeed, the topics have included the of her former students who are now proce- professors also use the five hours a week that “broader implications of Rooker-Feldman dure professors themselves—Allan Stein ’78 students are in their classes to impart differ- doctrine—a subject so obscure that it is at Rutgers University and Tobias Wolff of ent philosophical approaches to the law. not clear that it exists,” says Issacharoff, jok- the University of California, Davis—is enti- Samuel Issacharoff and Geoffrey Miller, ing. (As a refresher, that’s the doctrine that tled Civil Procedure: Theory and Practice. for example, are proponents of law and concerns when federal courts may revisit While each teacher approaches the sub- economics—an influential perspective in the judgments of state courts.) Other topics ject differently, their courses generally cover the academy. Issacharoff, the Bonnie and include class actions and the scope of fed- several areas. By the end of the semester, Richard Reiss Professor of Constitutional eral authority in doctrines such as federal the professors want their students to grasp Law, is regularly retained as a consultant preemption. “At some level of abstraction the basics of civil procedure, such as sub- or an expert in mass aggregate litigations they’re all interesting,” he says, laughing. ject matter jurisdiction (the basis for the and class actions, such as for the diet drug “At the level of detail they’re discussed, they court to hear the case), personal jurisdic- fen-phen (which caused dangerous side would drive anyone to drink.” tion (whether a court can require a person effects affecting the heart) and tobacco, and

28 THE LAW SCHOOL AUTUMN 2006 is deeply involved in the dispute over politi- Richard Posner soundly rejected that notion. panies say the suits are increasing business cal gerrymandering. Miller, the Stuyvesant Recounts Issacharoff: “He says, ‘No. You get costs, hurting the economy and enriching P. Comfort Professor of Law, also directs only as much process as what is justified lawyers. The controversial issue was central NYU’s Center for the Study of Central Banks. by what’s at stake here. These are $50 tick- to the heated debate over whether to place In integrating economics into civil proce- ets.’ We can’t put a policeman as a witness limits on class action lawsuits, as urged dure, they emphasize that the system canon the stand every time there is a parking by Republican legislators and President not treat every litigant equally; that time, ticket dispute,” Issacharoff adds, invoking George W. Bush. money and manpower must be allocated Posner’s reasoning. The study reveals that, from 1993 through judiciously; and that different cases merit Geoffrey Miller has adopted a sophisti- 2002, “contrary to popular belief, we find no different levels of attention. cated empirical approach to civil procedure, robust evidence that either recoveries for “There’s a finite amount that you want undertaking extensive studies of attorney plaintiffs or fees for their attorneys as a per- to invest in any potential piece of litigation, fees in class actions and state court deci- centage of the class recovery increased.’’ The and that means that you have to judge how sions, for example. He is one of the leading average settlement over the 10-year period much fairness we need, given the resources proponents of empirical analysis of legal was $100 million in inflation-adjusted 2002 we are putting in,” says Issacharoff. “So if issues, which has recently seen a dramatic dollars, according to the study. Average somebody is sitting on death row, we as a growth in popularity, despite being around settlements were as low as $25 million in society throw a lot of resources at that. We since the 1970s and ’80s. The legal commu- 1996 and as high as $274 million in 2000—a allow habeas challenges, we allow a sec- nity is embracing the empirical approach, result of four settlements that year for more ond round of appeals, we allow for a broad he says, because “if it’s done right it doesn’t than $1 billion each. “The mean client recov series of legal protections. Whereas, if some attempt to argue for or against any moral or ery has not noticeably increased over the body has a simple contract dispute with social objective, but to figure out how the last decade,” Miller wrote with Theodore somebody else, the parties have an impor- law functions in practice—what its con- Eisenberg, a law professor at Cornell. tant interest in getting it done and getting it sequences really are. [Empiricism accom- Another area he’s studying is alternative done cheaply, and getting it done commen- plishes this] without being speculative but dispute resolution. Popular literature touts surate to what’s at stake.” by actually counting and observing.” the supposed advantages of arbitration and He teaches a case involving the city of Two years ago, he coauthored a study mediation (faster, more flexible), so one Chicago’s policy of giving parking ticket that concluded that the average price of would assume every party would always opt violators limited trials and no appeals. A settling class action lawsuits and the aver- to resolve their disputes that way. Yet in ana- suit was filed claiming infringement of age fee paid to lawyers who bring them had lyzing 2,000 major commercial contracts, due process rights. But an opinion by Judge held steady for a decade, even though com- Miller and Eisenberg found that companies

linda Silberman, Martin Lipton Professor of Law; oscar Chase, Russell D. Niles Professor of Law;

andreas lowenfeld, Herbert and Rose Rubin Professor of International Law; rochelle dreyfuss, Pauline Newman Professor of Law

AUTUMN 2006 THE LAW SCHOOL 29 rarely opt out of litigation, even though they suit can be brought in the U.S. about activi- teaching emphasizes the importance of civil have the ability to do so. “It doesn’t say arbi- ties that took place 60 years ago, far far away procedure to democratic values. “Process tration is bad, but there are questions that in a different galaxy?” he says he asks his forms an essential part of the rule of law,” can usefully be looked at—why don’t they students. “How is it that a court in Brooklyn she explains. Benjamin Wizner ’00, now a choose arbitration when they have reason is handling these cases—other than divine staff attorney in the ACLU’s national office to do so?” asks Miller. He cautions that his justice? How is it that a federal court has in New York, recalls that Hershkoff always empirical approach doesn’t answer the jurisdiction over the Swiss banks?” came back to a central theme: Is it fair? normative questions. “But,” he says, “if you The answer is a whole lesson in what What’s the standard to determine what is do normative analysis without data, you’re Neuborne calls “probably the most impor- fair? And what are the countervailing social basically whistling in the dark.” tant jurisdictional issue” now. In short, if values? This set of questions has dominated the Swiss banks want to be world-class Wizner’s work, which has involved visiting banks, they must maintain a major pres- Cuba to observe military proceedings at ence in the United States, which creates Guantánamo Bay, Cuba. Procedure domi- in personam jurisdiction. “The moment nates other aspects of Wizner’s civil liberties Credit Suisse acquired First Boston,” says practice as well. For example, Wizner con- Neuborne the lawyer, “I had them.” But as fronted a jurisdictional issue in a case against a professor, Neuborne probes this question the government involving the rendition of further with his students. “The question is, a German citizen, Khaled El-Masri. The should I have them? And that then allows ACLU wanted to sue the then-director of the Burt Neuborne and Helen Hershkoff are me to teach what is an ordinarily arcane Central Intelligence Agency, George Tenet, veterans of civil rights litigation, and often subject that puts students to sleep.” and three private aviation companies on El- introduce that perspective to teach their Andrew Celli Jr. ’90, former chief of the Masri’s behalf, but where? “The companies civ pro courses. “You can’t do effective Civil Rights Bureau in the Office of the are all over the country. George Tenet lives law reform work unless you are a master New York State Attorney General Eliot in Maryland. The CIA is in Virginia,” Wizner at procedure,” says Neuborne, the Inez Spitzer and now a partner at Emery Celli recalls. He ended up suing in Virginia’s Milholland Professor of Civil Liberties and Brinckerhoff & Abady, a New York law Eastern District because the CIA made what a self-described procedural wonk. “The firm, will attest to the stimulating effect of the ACLU alleged was an illegal agreement odds of winning a law reform case are so Neuborne’s personal anecdotes and “enor- with the aviation companies, which did busi- small, and the odds of actually moving the mously creative procedural mind.” “Burt’s ness in the CIA’s venue. Unfortunately for society through litigation are so long, that stories about cases such as stopping the Wizner’s client, the court dismissed the case it’s almost criminal to add to the odds by bombing in Cambodia violated all expec- last May over concerns that public proceed- falling through a procedural trap. You have tations [about Civil Procedure as a course] ings would jeopardize state secrets. to close the procedural trapdoors, or else because it wasn’t about memorization,” civil rights litigation becomes an inefficient says Celli. “It was about understanding the use of social resources.” Little wonder, then, power relationships behind the rules.” King of Torts: that his former American Civil Liberties Hershkoff, like Neuborne, became a Union colleagues liked to call him “the professor after working at the ACLU, where Mass Harm Cases plumber,” the go-to guy who specialized in she was an associate legal director for eight Just as the nation is divided over the effi- procedural issues like jurisdictional stand- years. The year she left practice to join NYU, cacy of class suits to address mass harms ing and mootness—things that could hold New York magazine included her on its (such as a bad drug or a defective consumer up a case. annual list of the most important civil rights product or even stock adversely affected by Neuborne has been involved in such lawyers in the city. Her lawsuits tended to corporate wrongdoing), so are NYU’s law hot-button cases as flag burning, the be large institutional reform cases involv- professors. “The biggest puzzle in American Pentagon Papers and the constitutional- ing the rights of groups as diverse as the procedure today is how do we deal with ity of the Vietnam War, and continues to mentally retarded, public school students, mass torts or other mass victims,” Oscar litigate cases himself and through the Law homeless families and union dissidents. Chase says, “and we haven’t really worked School’s Brennan Center for Justice, which Hershkoff, the Joel S. and Anne B. out a satisfactory solution.” he helped found and for which he serves Ehrenkranz Professor of Law, now serves Arthur Miller finds himself on opposite as legal director. “The practice is important as a codirector of the Arthur Garfield Hays sides from his protégée Linda Silberman to my teaching,” he says. “I wouldn’t be the Civil Liberties Program at the Law School, on the subject of class actions. “Curiously, teacher I am if it wasn’t for the practice.” with colleagues Norman Dorsen and Sylvia Linda and I—as much as we love each other In teaching class actions during first- Law, and has joined Arthur Miller, John and have known each other for 30, close year Procedure, Neuborne has recently used Sexton, and Jack H. Friedenthal of George to 40 years—have diametrically opposed the case he filed to obtain reparations on Washington University as a coauthor on views about class actions,” he says. “I am a behalf of Holocaust victims. In July 2000, a their civil procedure casebook. Her scholar- great fan of them; she finds them to be the federal judge gave final approval to a $1.25 ship focuses on the role of law and courts in work of the devil.” billion accord to settle claims of Holocaust supporting social change, and she has pub- Silberman argues that if the court is survivors who had sued a group of Swiss lished extensively on state courts and the going to aggregate plaintiffs’ actions from banks they said had hoarded and con- enforcement of state constitutional rights. all over the country, the court must take cealed assets deposited in World War II She also works with organizations like the into account the state law that should apply and accepted profits of slave labor illegally Ford Foundation and the World Bank on for each plaintiff. She contends that the obtained by the Nazis. One of the critical projects using law and litigation to reduce convenient aggregation of all mass claims issues was jurisdiction. “How is it that a law- inequality. Not surprisingly, Hershkoff’s is not what is intended by class action rules.

30 THE LAW SCHOOL AUTUMN 2006 “The class action was designed for cases in culties, not the least of which is the due pro- which aggregation would not be too com- cess concern for the rights of individuals,” plicated. And if, in fact, it is too compli- Issacharoff says. But he acknowledges that cated, it’s probably not the right device,” she certain types of class actions are more prob- says. Besides, Silberman adds, if change lematic than others—for example, cases is desired, Congress could adopt statutes that address individual injuries that are not to address the procedures for dealing with standardized, such as physical maladies specific mass torts, such as a national con- related to asbestos or fen-phen. The proce- sumer law to address products liability. dure is better designed for cases involving Silberman has been retained in recent mass economic harms, such as consumer class action litigations as an expert on this fraud, securities and antitrust issues, he larly, though not every year—usually with issue. In one case, plaintiffs claimed eco- says. (For more insight into the debate over a professor visiting the NYU School of Law nomic losses for property damage caused by how best to litigate mass harm cases, please from Europe or Asia through the Hauser defects in personal computers. Silberman see “Heads of the Class” on page 36.) Global Law School Program. The global pro- addressed questions about which remedies gram was founded by then-Dean Sexton and the plaintiffs had in different states. Courts Norman Dorsen, the Frederick I. and Grace held that in almost all the cases, the law A. Stokes Professor of Law and a member of of the plaintiff’s home state had to apply, The Global Gambit the Council on Foreign Relations. Dorsen which rendered the class unmanageable. Global jurisdictional issues have moved to served as the Hauser Global Law School Miller and Silberman do have some the forefront of controversy as the world Program’s founding faculty director. common ground, however. “We both agree shrinks and business is increasingly con- “Norman encouraged faculty to intro- completely that the globalization of a class ducted internationally. Yet the court system duce transnational and comparative themes action, in something like pedophilia and we have come to take for granted appears into the first-year curriculum,” Hershkoff the priest abuse cases, is an absolutely per- quite alien to people in other countries. says of Dorsen. “With his support, Oscar fect utilization of the class action because it Essential elements like the civil jury, pretrial Chase, Rochelle Dreyfuss and I took early gives voice to a group of people who have discovery and experts chosen by the parties steps to collect resources in this field. And no voice,” Miller says. “It provided a vehicle rather than appointed by the court are all of course Oscar and Linda cotaught a course to enable them to come forward without unique to the American system, which in on Comparative Civil Procedure.” Chase, ever being disclosed.” some cultures is still viewed with suspicion. Hershkoff and Silberman have since partici- Issacharoff says that, regardless of “You talk to lawyers in other parts of the pated in workshops and conferences spon- the diverging viewpoints on class actions, world and they think we’re nuts because sored by the American Assocation of Law they’re here to stay—and rightly so. He is we have juries in civil cases and because we Schools on how the first-year Civil Procedure currently the chief reporter for the Amer have wide-open discovery—which they fear curriculum can “go global.” “Students are ican Law Institute (ALI) project Principles as if it were the Antichrist—and because we surprised to learn that procedural systems on the Law of Aggregate Litigation, for have reasonably broad jurisdictional notions,” differ from country to country,” Hershkoff which he is examining ways to handle com- says Arthur Miller. He points out, however, explains. “For example, elsewhere in the mon issues in mass torts and other cases that here and there other nations are think- world, only a government official can serve such as contract or common law claims. ing about incorporating one or more of these a summons—indeed, it’s a crime in some Harms that occur on a mass scale, similarly elements. “China is studying the class action,” countries for a private individual to do this.” affecting so many people, require novel Miller says. “You find other nations thinking The large number of foreign students court procedures to resolve the claims effi- about the class action simply out of recogni- at NYU has added yet another dimension, ciently but fairly. The project will examine tion of the growing frequency of injurious bringing the firsthand experience of differ- the viability of complex alternatives, such mass phenomena. You find some nations ent cultures into the classroom. Andreas as forcing claims into one mass proceeding; thinking about instituting civil jury trial. Isn’t Lowenfeld, the Herbert and Rose Rubin allowing for extraordinary procedures, such that crazy?” Professor of International Law, is one of as interlocutory appeals; and even denying To give students more foreign perspec- the giants in the field of comparative civil to some litigants the right to proceed on tive, the Law School added a course on procedure. Lowenfeld is frequently an their own. “This is an area fraught with diffi- Comparative Civil Procedure—taught regu- arbitrator in international disputes, pub-

“Lawyers in other parts of the world think we’re nuts because we have juries in civil cases, because we have wide-open discovery and because we have reasonably broad jurisdictional notions.”

arthur miller, visiting professor of law and Bruce Bromley Professor of Law, Harvard Law School

AUTUMN 2006 THE LAW SCHOOL 31 lic and private. He has argued before the from Pennsylvania is in a car accident over- U.S. Supreme Court, the Iran-U.S. Claims seas. She is sued in that country and a judg- Tribunal and the International Court of ment for damages is entered against her. Justice. Before coming to NYU, he served as Pennsylvania will not enforce the judgment deputy legal adviser of the U.S. Department according to its laws, but the tourist also of State. And he is the author of a pioneer- has a bank account in New York, which will ing casebook on international litigation and enforce the judgment. “It makes no sense to arbitration, which was revised just this year. have different laws because enforcement of In 2001, he and Silberman convened a con- judgments is an aspect of international rela- ference on the proposed Hague Convention tions, and, therefore, is a suitable subject for on Jurisdiction and Judgments, which legislation by Congress,” says Lowenfeld. brought together some of today’s most Oscar Chase, the Russell D. Niles Pro knowledgeable theorists and practitioners fessor of Law, has become something of a on international jurisdictional issues. The guru on comparative procedure. His paper, two professors have edited a book based on “American ‘Exceptionalism’ and Comparative the proceedings. Civil Procedure” (in the American Journal Lowenfeld and Silberman also coteach a of Comparative Law in 2002, and also trans- seminar on international litigation and arbi- lated and published in a Russian and a tration. Lowenfeld says they try to have half Brazilian law journal), argues that our civil the students in their International Litigation procedure is very unusual compared to the course be foreign-trained to generate cross- rest of the world’s—and that we’ve resisted cultural understanding as they write briefs borrowing. Using juries in civil cases, for and argue together. Lowenfeld also says tak- example, is unique to America, he says, and ing civil procedure out of the national con- “strikes the Europeans as bizarre.” text offers students an opportunity to further Chase has also been involved in what their understanding of it. “If you like proce- he describes as contextualizing dispute dure, you’ll love international litigation,” he resolution. His recent book—Law, Culture, says. “The issues are not settled—they’re and Ritual: Disputing Systems in Cross- open, they’re at the frontier. We take real Cultural Context—deals with comparative cases and we have the students argue them.” law in other modern societies as well as in In fact, last year the course focused on six small-scale tribal groups, and argues that cases that were subsequently heard by the their codes are resonant with the cultures U.S. Supreme Court. in which they operate. African communi- Silberman and Lowenfeld were coreport ties that use oracles to try disputes make ers for the ALI on the project Recognition sense if you study the culture of those com- and Enforcement of Foreign Judgments: munities. Similarly, civil juries make sense and Silberman are coediting a book of Analysis and Proposed Federal Statute. The in America because of our commitment to readings on comparative civil procedure project, recently adopted by the general populism and democracy. “The idea is that with three scholars who have each been assembly of the ALI, proposed a federal there is a relationship between how societ- members of the Hauser Global Law School statute that would provide uniformity ies structure their disputing systems and Program visiting faculty: Yasuhei Taniguchi, throughout the United States in the rec- their underlying culture, and that you can’t a professor of law at Tokyo Keizai University ognition and enforcement of judgments really understand your own system and and a member and former chairman of the issued by courts in foreign countries. States its relation to the society where you find it World Trade Organization Appellate Body; currently have different laws on the subject, unless you go outside of it,” Chase says. Adrian Zuckerman, a fellow at University creating the potential for diverse outcomes One effective way of going outside the College, Oxford; and Vincenzo Varano, a based on identical facts. Lowenfeld gives American system is by inviting foreign per- professor and former dean at the University an example: Suppose an American tourist spectives in. To that end, Chase, Hershkoff of Florence School of Law.

“We teach students that the kind of choices you make will affect the way the whole case is seen by the other side and by the court, and will affect your ability to ultimately achieve what you want for your client.”

Nancy Mor awetz, Professor of Clinical Law

32 THE LAW SCHOOL AUTUMN 2006 Burt neuborne, Inez Milholland Professor of Civil Liberties; Helen hershkoff, Joel S. and Anne B. Ehrenkranz Professor of Law

Knight Moves impact of intellectual property laws in sci- etcetera?” It’s not great for users, either, ence, trade secrets, privacy rights and busi- because they might be sued multiple times Rochelle Dreyfuss and Samuel Estreicher ness method patenting. She recently coed- by copyright, patent or trademark holders. had taught the first-year Civil Procedure ited a book, Intellectual Property Stories, with Her research for the ALI addresses when course for dozens of years combined before Jane Ginsburg of the Columbia University it’s appropriate to assert jurisdiction inter- redirecting their energies to building up School of Law. She edits a casebook in internationally and how to enforce judgments the Law School’s offerings in other fields of national property law that has to be updated issued in one country against a violator else- interest—namely, intellectual property and every year because of constant changes. where—if France issues a judgment against labor and employment law, respectively. Dreyfuss is currently one of three core- Yahoo (which happened), is that judgment But both professors never really left civil porters of Intellectual Property: Principles enforceable in the United States? Dreyfuss procedure behind and have made notable Governing Jurisdiction, Choice of Law and also wants to introduce the principle that contributions to the legal scholarship. Judgments in Transnational Disputes, a one suit can resolve claims all over the Intellectual property has undergone project for the American Law Institute. She, world. You can sue in the United States, for more wrenching change, thanks to global- Ginsburg and François Dessemontet of the instance, asserting all worldwide claims— ization and technology, than perhaps any Center for Enterprise Law at the University of but once you’ve lost, you’re finished. other procedural area. The law in this area Lausanne are developing uniform guidelines Samuel Estreicher, the Dwight D. has grown extremely complex, especially to address the conflicting results arising in Opperman Professor of Law and the direc- as domestic copyrights, trademarks and pat- international copyright, trademark and pat- tor of the Center for Labor and Employment ents make up a large portion of our economy. ent disputes as the Internet makes worldwide Law, joined the faculty after working as It also poses vexing problems when copy- distribution instantaneous. “If there is copy- a union-side labor lawyer. In addition to rights and trademarks come in conflict with right infringement, there is copyright in- serving as of counsel to Jones Day, he is privacy rights and the First Amendment. fringement all over the world. The question currently the chief reporter of the ALI proj- Dreyfuss has been at the center of the cross is, how does the copyright holder adjudicate ect Restatement of Employment Law with section between intellectual property and those cases? Do you have to litigate in the reporters Stewart Schwab, dean of the civil procedure since she started as an assis- United States over the people who down- Cornell University Law School and Boston tant professor of law at NYU in 1983. She loaded it in the United States, and then University School of Law Professor Michael is now the Pauline Newman Professor of litigate in France over the people who down- Harper. The project is looking at nonstatu- Law, and has published on subjects like the loaded in France, and then litigate in Japan, tory employment law regarding issues such

AUTUMN 2006 THE LAW SCHOOL 33 “Civil procedure is about understanding the context in which a decision arises. Did the case come from a motion to dismiss? A summary judgment motion? That’s a major part of a lawyer’s arsenal when he gets a case on appeal.”

Samuel Estreicher, Dwight D. Opperman Professor of Law

as the interpretation of employment con- the state court resolve the question. The Practice, tracts, noncompete clauses, privacy in the preference for state or federal courts may workplace and discharge of employees for change with the times and with the politics Practice violation of public policy. of the era, Friedman says, pointing out that Students get to apply the rules of civil pro- Estreicher is also one of the nation’s lead- there was a time when state courts were cedure and see how their actions can affect ing experts on alternative dispute resolution more sympathetic to gay rights than federal lives when taking part in some of the Law and an outspoken supporter of arbitration in courts. “People will play to one court sys- School’s clinics, including the Civil Legal employment disputes. Although he doesn’t tem or another for advantage,” he says. Services Clinic, taught by Clinical Professor take a strict law and economics stance on Friedman, Hershkoff and Neuborne— of Law Paula Galowitz; the Civil Rights conflict resolution, he repeatedly hits on the the latter two teach the upper-level Federal Clinic, taught by Clinical Professor of Law theme of middle- and lower-class access Courts in addition to the first-year Procedure Claudia Angelos; the Employment and to relief. “There are two kinds of claims,” class—all look to the Guantánamo Bay cases Housing Discrimination Clinic, taught by Estreicher says. “Cadillacs and rickshaws.” as ripe examples for teaching the role of Clinical Professor of Law Laura Sager; and Cadillacs are high-stakes claims that attract the judiciary in our tripartite government. the Children’s Rights Clinic, taught by lawyers and are well handled by the courts. For example, they cite efforts by Congress Fiorello LaGuardia Professor of Clinical Routine, or rickshaw, claims are low-stakes and the White House to eliminate Supreme Law Martin Guggenheim ’71. Guggenheim and therefore “are the orphans of the law.” Court jurisdiction over proceedings filed by was recently recognized with the Livingston “Nobody wants them, neither private lawyers detainees, and the question of whether you Hall Award from the American Bar Associ nor public interest organizations,” Estreicher can eliminate habeas corpus review over ation’s Juvenile Justice Section for his years says. “The big challenge for the U.S. civil pro- proceedings filed by Guantánamo detain- of practice in the area of juvenile delin- cedure system is to create a lower-cost pro- ees. “These are perfect ways to teach the quency. He also published What’s Wrong cess that transforms rickshaws into Saturns relationship between the judiciary and the with Children’s Rights, a book-length exami- so people with average income and educa- executive branch, about the legislature,” says nation of the quarter-century emergence of tion can have a mode of redress.” Neuborne. “This is an excellent way to talk children’s rights and its impact on families about the essential function of the judiciary.” and society. Another perspective on federal courts One of the most contentious political Advancing comes from Estreicher. Two of his upper- topics in the nation these days is immi- level classes, The Appellate and Legislative grants’ rights. Nancy Morawetz, professor Positions Advocacy Workshop: The Labor and Employ- of clinical law, shares a real-life perspec- A number of upper-level courses build on ment Docket, and Supreme Court Advocacy, tive on civil procedure with her students the foundation laid in the first-year Civil give students “intense skill development,” in the Immigrant Rights Clinic that she co- Procedure class. Barry Friedman, the Jacob Estreicher says. In both of the seminars teaches with Research Scholar Mayra Peters- D. Fuchsberg Professor of Law, teaches one (he coteaches the appellate workshop with Quintero ’99. Students have the opportunity of the more significant upper-level proce- Laurence Gold, former general counsel of to appear in several forums (such as immi- dure courses, Federal Jurisdiction. In it, he labor federation AFL-CIO and now of coun- gration court or district court), advocating explores the relationship between federal sel to labor law firm Bredhoff & Kaiser in on behalf of immigrants in deportation and state courts, and federal courts and Washington, D.C., and the Supreme Court matters, including three cases before the other branches of the federal government. seminar with Meir Feder, a partner in the U.S. Court of Appeals for the Second Circuit “The basic Procedure course introduces stu- issues and appeals group at Jones Day and during the 2004 academic year in which dents to basic issues—notice, fairness and a former assistant U.S. attorney), students the students made creative arguments in impartial judges, for example. I’m trying to study cases that are pending before the habeas corpus. Students also work on wage introduce them to more complex issues.” Supreme Court. They write briefs, argue and hour cases and nonlitigation matters, And also to more complex strategizing. a side and decide the cases. “Civil proce- such as legislative issues and grassroots Friedman’s course “is about how to get into dure is about understanding the context campaigns. The idea is to reinforce what’s federal court and how to stay there—or how in which a decision arises,” says Estreicher. learned in the classrooms through actual to avoid being there if you don’t want to be “Did the case come from a motion to dis- practice. “A lot of what we are doing is try- there.” States named as defendants in cases miss? A summary judgment motion? That’s ing to teach students to think strategically,” challenging the constitutionality of state law, a major part of a lawyer’s arsenal when he she says. “We try to teach that the kind of for example, would usually prefer to have gets a case on appeal.” choices you make will affect the way the

34 THE LAW SCHOOL AUTUMN 2006 whole case is seen by the other side, is seen has taught or cotaught courses in conflicts an exemplar of the teaching of civil pro by the court and will affect your ability to of laws, comparative procedure and inter- cedure. Given their many years of experi- ultimately achieve what you do and don’t national litigation, and coteaches a class in ence, the Law School’s civil procedure pro- want to achieve for your client.” international commercial arbitration.) She fessors could be expected to have grown Morawetz, a former class action litiga- acknowledges that almost every other elite somewhat jaded about teaching a founda- tor, joined the NYU School of Law faculty law school has reduced Civil Procedure tion course over and over again. Yet they in 1987. She assisted with preparation of to one semester, but still argued forcefully talk about civil procedure with the enthu- an amicus brief on behalf of Jose Padilla, against it. “I gave a big speech to the faculty siasm of the newly initiated. Indeed, at the respondent in Rumsfeld v. Padilla, filed by how this ought not to be done,” she says. end of each year, Burt Neuborne burns the Public Defender Service for the District After a three-year hiatus from Civil his class notes to force himself to start of Columbia. Padilla is a U.S. citizen that Procedure, Silberman returned to the fold fresh the following fall. “The only way I can has been declared an enemy combatant. in the 2005-06 academic year. She says she be sure that I’ll prepare again the next year Morawetz developed an interest in the did so because she successfully insisted is to be naked when I go in there and have jurisdictional reach of habeas, which she that her students meet four instead of three to do it,” he continues. “It’s more work, but examined in Padilla, after reading a former sessions per week—without adding to the it’s the joy of this life. Teaching law and student’s paper on similar issues. Morawetz requisite five weekly course hours—to give teaching at NYU is just an unbelievably specifically researched whether the govern- the students more time to absorb the mate- privileged existence.” ■ ment, by unilaterally moving someone from rial. But she also clearly loved teaching the one part of the country to another, could course too much to stay away. “At the end of Robin Pogrebin is a staff reporter for the choose the court in which the case would the day, I’m really most interested in craft. New York Times. Edward Klaris is vice presi- be litigated. The Supreme Court essentially How do you make an argument? What’s dent, editorial assets & rights at Condé Nast ruled that it could. the best argument? What does the defen- Publications and an adjunct professor at dant say?” she says. “I’m really focused very Columbia Law School. Suzanne Barlyn is a heavily on students getting the tools that freelance reporter and nonpracticing law- they need to move on to be a lawyer.” yer who received her J.D. from Washington The Endgame That dedication—to the students, and College of Law, The American University. Law schools used to dedicate a full year to learning in general—is at the heart of Larry Reibstein is an assistant managing to Contracts, Torts, Property and Civil what makes the NYU School of Law such editor of Forbes. Procedure. But as more subjects have been added to the curriculum—such as employment law, entertainment law and securities law, as well as interdisciplinary courses involving economics, philosophy and The Key to the Board anthropology—top-tier law schools have reduced the first-year courses to one semester, including Civil Procedure. This has been quite controversial. Many professors believe that first-year law students take until around

March to begin making sense of what they 6 are learning. That is especially the case for 5 Civil Procedure, which was cut back to one 9 semester at the Law School in 2002. 8 7 Some faculty see the “semesterization” 1 of first-year courses as emblematic of a 10 larger shift by leading law schools away from their original vocational function of 2 training law students to be lawyers. Instead, law schools are following the graduate school model, which is more academic and 3 theoretical. “When I was in law school— and for most of my teaching career—a law school was thought to be a professional school, designed to prepare people for a 4 professional life, with emphasis on the development of skills that reflected what lawyers did,” says Arthur Miller. “These days, law schools do not have the same professional orientation that they once had.” Some professors at the NYU School of Law have had a tough time seeing the course truncated. Silberman initially refused to 1 Geoffrey Miller 2 Linda Silberman 3 Samuel Issacharoff 4 Oscar Chase teach the shortened course for the first 5 Helen Hershkoff 6 Samuel Estreicher 7 Burt Neuborne time in her 35 years at the school. (She also 8 Barry Friedman 9 Rochelle Dreyfuss 10 Andreas Lowenfeld

AUTUMN 2006 THE LAW SCHOOL 35 Heads of the Class

ne of the most contentious questions in civil procedure is: is, is a jurisdictional statute? It doesn’t authorize the creation of a uniform body How should we handle cases when many people are harmed? of federal common law for, say, consumer fraud or products liability. Because if it We gathered faculty and alumni who represent the academy, did—young Burt, you’re the con law spe- O cialist at the table—is that as big an insult to plaintiffs’ lawyers and defendants’ lawyers to debate the topic, federalism as you can think of? Burt Neuborne (BN): Of course it’s an and later added the comments of two other accomplished alumni insult to federalism. The Bill of Rights is an insult to federalism. It means that you have who couldn’t attend the roundtable. The group had a fascinating a single national law providing for mini- mum political rights all over the country. and free-ranging discussion—an edited version of which follows. But when you consolidate large numbers of claims before a single federal judge in a (For those not immersed in this topic, see the glossary on page 43 single proceeding, you set off a process of the unification of law that could take lots for asterisked terms.) So, when something goes massively wrong, of different forms. It could mean experi- menting with federal common law, which what sort of redress should Americans reasonably expect? really would have constitutional considerations, but it probably would mean look- Arthur Miller (AM): Probably the most ized state class actions. I also think you ing at the various state laws and magically dramatic current event in class actions is probably are going to see an effect on cou- finding how they all come out the same way the enactment of the federal Class Action pon settlements*. because federal judges will be viewing it Fairness Act (CAFA)* of 2005. Let me start AM: Why are you laughing, Mel? under a lens toward uniformity instead of by asking the practitioners in the room MW: That’s humorous because I have difference. whether they see any difference yet? seen very few coupon settlements in my Samuel IsSacharoff (SI): CAFA is an Heads Steven Bennett (SB): It’s too early to career. They are usually urged by the defen- invitation to take national market cases tell. But the problem of forum shopping and dants, not by the plaintiffs. So now you’ve into federal court and nationalize them. a concentration of nationwide class actions given us an excuse to say to hell with your That’s the rationale behind the statute. We’re in certain state courts may be ameliorated. coupons, we just want going to see class action AM: Evan, do you predict a diminution in your cash. practitioners move further the number of class actions being instituted? Oscar Chase (OC): and further away from Evan Chesler (EC): I believe it will Now I’m laughing be- the old idea that they are have little or no effect because there are a cause it seems that every simply trial lawyers in a lot of smart plaintiff lawyers who will not class of which I am a different setting and into be deterred. While it may affect venue, it member—and I seem to the world where they are will not affect volume. get them every three sophisticated, complex of the Mel Weiss (MW): As a lot of other tort months—offers me some litigators who go to trial reform efforts have proven, there may be kind of a coupon. In the infrequently and become unintended consequences that may be consumer fraud area, it increasingly comfortable more favorable to the plaintiff. seems to endure. with the practices of multi- The truth is that there’s more tort reform AM: Maybe it’s the district ligitations (MDLs)* that’s been effectuated at the state court cheap products you buy, and federal courts. level than at the federal court level. If you Oscar. Arthur Miller, moderator GM: The assumption look at the statistics of Southern Illinois, MW: But the coupons the business interests Visiting Professor of Law; you’ll see very few actions that were certi- may have real value and had when they promoted Bruce Bromley Professor of Law, fied as class actions. States like Mississippi now, through the Internet, Harvard Law School CAFA—that the federal and Texas have become very conservative. you can trade them. forum would be better for Class I still have trust and confidence that when OC: I will sell you some very cheap. them than the state forum—isn’t justified federal judges see wrongdoing that affects Geoffrey Miller (GM): I want to say by the actual facts. Ted Eisenberg at Cornell adversely a lot of people, they are going to a word in favor of coupon settlements and I actually did the research. We found find ways to give them remedies. because I’ve heard them denigrated that the attorney’s fees in federal court, if AM: You’re optimistic, whereas some here and elsewhere. They are not always anything, were higher than attorney’s fees viewed this as legislative work of the devil. bad. Some cash settlements are bad, too. in class actions in state courts. So the idea MW: I know, but the Private Securities Coupon settlements can be beneficial to the that plaintiff’s attorneys are going to suffer Litigation Reform Amendment (PSLRA)* class in consumer products cases because by going to federal court just isn’t true. was also viewed as something that would they basically save the difference between LS: On the applicable law point: Of benefit the corporate community and it the wholesale and the retail price, and that course, one of the reasons for CAFA was turned out to be just the opposite. value can be shared by the defendant and some sense that the state courts were cer- AM: How about the academics? What the plaintiff. Even CAFA didn’t repudiate tifying these broad national class actions does the rarified air say about this statute? coupon settlements. So let’s not throw out in circumstances where they shouldn’t be Linda Silberman (LS): I would have the baby with the bath water. certified. Certainly one purpose politically expected a movement toward more local- AM: What of the argument that all CAFA was to think that the federal judges would

AUTUMN 2006 THE LAW SCHOOL 37 take a more objective and less parochial lation. Yet CAFA invites state government SI: Evan makes a great deal of sense. approach to those kinds of class actions. To to the table to discuss settlement. To First of all, it’s clear that a lot of what we do, the extent that you have consumer cases that me, that procedure offers one of the most even in the world of common law, is try to involve the laws of different states, it may interesting developments in the new class figure out what the value is of a claim. We turn out that this is an inappropriate situa- action statute. then look to the court system to facilitate tion to have a nationwide class. Because dif- MW: Do you consider that a good thing the resolution of those claims as efficiently ferent laws are applying doesn’t mean abso- or a bad thing? as possible. When you have an undifferenti- lutely that you can’t certify, but if you look HH: That depends on your view of ated product put out on a national market at the set of cases, the differences in national government and on the standards and who it happens to hurt is just a matter applicable law have led in many cases that the court will use to approve settlement. of happenstance of where the consumer to noncertification. was at a particular time, there’s a tremen- MW: How about the rebirth of subclasses? S heila birnbaum ’65 dous systemic push toward getting that What Burt was saying before is that judges Partner, Skadden, Arps, resolved once and for all. will try to find ways to harmonize different Slate, Meagher & Flom: I disagree a little bit with Evan on the groups of state approaches and create sub- These government agencies very good point that Helen made. The classes. So you still have a coordination of will come in at the last min- move toward consolidation of where the discovery and the efficiencies that class ute with very little knowl- these cases should be heard goes hand actions provide. But I just want to remind edge of what happened in in hand with the increasing move toward all of you that Rule 23* wasn’t intended to the case. It could delay or derail settlements. It the consolidation of the law that should be a one-way street. It also provided for the could make a great deal of mischief. govern national market conduct. But you defendant an ability to take its misery and can’t look at the expansion of federal be rid of it in one package rather than have MW: You’re talking about the government forum—not just in CAFA, but also in a case to fight hand-to-hand combat with each as if it’s one government, but under CAFA like Grable [Grable & Sons Metal Prods., member of the class. you have to give notice to a lot of govern- Inc. v. Darue Eng’g & Mfg.] that just came SB: That’s a very realistic point. The law ments. This is a very destructive influence down—without also looking at the sub- by itself doesn’t do anything about estab- over the resolution of complex matters. stantive areas like preemption where you lishing federal common law, but it may in EC: We should draw a distinction here get increasingly heavy-handed claims that fact encourage courts to look at circum- between substantive law and procedure in the federal government standards should stances where there are conflicting issues the context of CAFA. Some of the most dif- preempt state law. So you are seeing con- and try to figure out practical solutions. ficult and challenging class-action litigations solidation on both the procedural forum Helen Hershkoff (HH): Academics I have handled have been situations where side and the substantive side. often say that procedure is a seamless web, there have been multiple state court actions AM: I did a complex litigation study 10 meaning in this context that it is impossible and you’re trying on the defense side to get years ago in which it was anathema to think to understand CAFA without looking at other them all into the federal system. Not neces- of a provision that didn’t presuppose full procedural developments, in particular sarily because it’s a more favorable body adjudication on the merits. You get the feel- those having to do with limitations on imply- of law, but because it is a much better con- ing that people today are saying: Gee, it’s all ing remedies as a matter of common law for text in which to defend a defendant who is about workout*. statutory violations. When facing a multifront war in SI: Well, let’s look at the reality of what we look at CAFA, we can’t many different jurisdic- goes on in the courts. One of the most dis- just look at it as a juris- tions on many different appointing decisions for somebody that dictional statute. One has time tables. From a pro- teaches to first years is Justice David Souter’s to locate it in the broader cedural perspective to decision in Ortiz v. Fibreboard. I take strong context and see it as a the extent that this results issue with the way Justice Souter begins part of a broader shift in in more litigation going the opinion, which is to say, this is a depar- constitutional law and through the MDL process ture from the one-by-one adjudication that approaches to federalism. and the federal process, we perceive to be the norm. Typically in AM: Helen, you have a it is potentially a benefit America, says Justice Souter, you have one great deal of experience from a defense perspective. plaintiff, one defendant; each one has one in public interest litiga- On the substantive side, lawyer. That’s an absurd characterization tion. Are you depressed we still have profound of our legal system. Typically what we have about CAFA? conflicts among the cir- in the U.S. is a complex web that includes HH: Well, on the one Steven C. Bennett ’84 cuits about things like loss bankruptcy, private aggregations and class hand, it’s interesting that causation. I don’t think actions. If you don’t deal with all of that Partner, Jones Day CAFA carves out an excep- we’re in any jeopardy of then you’re just missing the picture of how tion for class actions that have state govern- having a single federal jurisprudence of class law is practiced in this country. mental entities as the defendant. On the action litigation as a result of this statute. AM: With deference to Justice Souter, other hand, now that we’ve got the Supreme AM: Some might not think it’s jeopardy whose entire life was New Hampshire, where Court saying that removal of state law cases to to move toward a single body. In fact, I’ve life is a little different than in the big city, the the federal court counts as a waiver of the heard Sam say that Erie v. Tompkins should vast majority of litigation today, I suspect, is states’ 11th Amendment immunity, it’s not be overruled. That, of course, would put still one-on-one. So are we in the process of quite clear why we need that provision in those of us who are academics out of work. creating a different structure—call it aggre- the Federal Rules of Civil Procedure. We What else is there to teach? Sam, does Evan gation, call it the class action? live in a period of privatization and deregu- make sense? OC: Justice Souter’s point goes to the

38 THE LAW SCHOOL AUTUMN 2006 realm of myth and con- be headed. Litigation SI: Trials are tremendously important, cept of the legitimacy of has become increasingly but the problem is that right now in big courts. It’s what people a matter of administra- cases, we have pseudo-trials—class cer- want to believe about tion. Linda raises the tification of Daubert hearings*, for exam- what courts do. And it’s question, although imple—that increasingly run to be multiweek not a bad thing for the plicitly, whether this affairs. These procedural hearings take on courts to claim their legit- administrative function a character of fighting the merits by proxy. imacy by this notion that ought to be under the One of the things that we are trying to figure we serve people one-on- domain of courts. Out- out in the American Law Institute Aggregate one. Why is that? Because side the U.S., bureaucracy Litigation Project is whether we can parcel unlike the U.S. Congress, assumes these functions. out the components where Mel and Evan which can punt on asbes- Oscar Chase This development raises really have a difference and see if we can try tos, the courts have to Russell D. Niles Professor of Law the fundamental political them without having to try the whole thing hear the case in some question that’s posed by at once and without having to have all the way and have to find a way to resolve it. Oscar’s ideal: how far do we want to depart damages laid on. The hope is that the par- SB: Lingering underneath this is the real from the individual ethos of the U.S. ties can then negotiate on the basis of the divergence in interests in class action litiga- legal system? merits, but instead of calling it a Daubert tion, and that’s compensation on the one EC: From the perspective of a trial law- hearing you’ll call it a trial on an issue. hand and public interest or deterrence on yer, one thing that is underestimated in that EC: This is not a phenomenon unique the other. The Souter model of one-on-one analysis is the prospect that a dispute will to class actions. There is a lot of attention is purely the compensation model. And actually end up in a courtroom. If you hand these days on the vanishing trial. It is almost it’s clear that there is some public interest this over to bureaucrats and you begin impossible to get a civil case though the fed- element written into the rules themselves, with the assumption that it will never be eral system or most state courts to trial. which is part of the whole reform process resolved in a courtroom—talk about unin- AM: The whole management dynamic looking at how you select plaintiffs in the tended consequences that Mel started with. works against trial. A chief judge of a distin- case of private securities litigation. You fundamentally change the dynamic guished urban federal court said to me, “If GM: We are on the verge of a revolu- and not necessarily for the better. any case on my docket reaches trial, I have tionary change in how we conceive of this BN: In Europe, when you have a social failed.” type of litigation. We talked about rejecting problem, the government will deal with it. EC: The ultimate plenary trial on the Erie. We talked about moving from one-on- And as Evan points out, that takes away the merits is a very rare phenomenon. The one adjudication to the idea of workout incentive from both sides to really seriously difference here is, to go back to the Souter being the model. Actually, those things are settle. You have a system in Europe that concept, when class actions are involved, already happening. If you look at federal essentially tilts towards corporate power. what our system has done is to impose an court cases involving state law or even state But what we would do here is something entire additional level of policy-driven judi- law involving the law of several different very different. We’d say, let’s decentralize. cial oversight. Two private parties can go off, states, they are rejecting Erie and are apply- Let’s see if we can privatize the enforcement their lawyers can have a drink in a bar and ing a single nationwide common law. They process. The real analogy is not to adminis- it’s over. You do not have to publish a notice may not say that’s what they are doing, but trative, it’s to letters of marque*. Letters of in the Wall Street Journal, you do not have that is in fact what they are doing. marque once meant we had a private navy. to have a fairness hearing, you do not have LS: That takes us back to the underlying And what we did is we simply licensed the court decide what the plaintiff’s legal question of the class action itself, because people to sail up and down the coast, take fees should or should not be. It is not sub- the very mechanism of the class action prizes, bring the prizes into a prize court, ject to that level of public scrutiny. allows much of this litigation to be brought. have the prize court determine the appro- MW: It’s very dangerous for both sides to At the end of the day, there’s a really serious priate compensation. The profit mode cre- let the government get into the act. Defen- question about whether some of this litiga- ated incentive for a very effective navy. Well, dants will rue it in very short order. When tion should be brought at all. If one looks, at we don’t want to spend the money, and the Carter administration recommended least comparatively, we’re one of the few probably shouldn’t, on that you didn’t even need countries that has this kind of class action. a huge administrative a client to start a class Other countries give much greater control mechanism to enforce action—a lawyer could to either public authorities or to a sign-on the laws that we have in bring the action—nobody registry for a group litigation. the country. So we’ve wanted that. I hope that decentralized it. And CAFA doesn’t lead to a Birnbaum: The hardest problem the defense modern class action morass of engagement lawyer has is to get the court to separate the lawyers are the contem- by state A.G.s, insurance meritorious from the nonmeritorious cases. porary equivalent of commissioners—we can’t There always appears to be some semblance of privateers. They enforce even get coordination in causation for a small group of people, but then the law based on a profit a lot of states between you have large numbers of people who can’t motive. What we’re talk- different regulatory arms establish causation jumping on the class action. ing about now is what of the state. the prize court should GM: Burt, did your HH: I agree with Geoff that we are in the look like in terms of Evan Chesler ’75 historical research show middle of a major sea change. Linda is determining the ultimate Deputy Presiding Partner, whether in letters of pointing the way to which we might compensation. Cravath, Swain & Moore marque cases the priva-

AUTUMN 2006 THE LAW SCHOOL 39 teer got paid on a percentage basis or on a enforcement of law in these areas, using loadstar basis? Feinberg: Yes, we are seeing more and more the individual plaintiff as a symbolic entry use of binding procedures after an aggregate BN: Traditional rule in admiralty was into the courthouse. The notion that this always a percentage. settlement is reached when it comes to issues individual plaintiff runs the case never was GM: That’s very important to think about. of eligibility and compensation among indi- true. So, at some point we’re going to have We’ve been talking about the idea that it’s vidual beneficiaries of the settlement. Once a to confront the notion that the lawyers run good to privatize mass dispute resolution in settlement is reached in an aggregative case these cases. And how we then work out the the U.S. through the judicial system, but at (it need not be a class action, but could be the mechanisms is the very next step in class the same time they never get to trial, so we result of an MDL or regional consolidation), action laws. have sort of a paradox. Does this suggest that you still have the issues surrounding individ- MW: Let me just take issue with the over- we ought to have arbitration as an answer? ual compensation. This is where the lawyers broad statement that my good friend made. What about class action arbitration? can agree to arbitration or some other bind- The PSLRA has introduced institutional MW: It depends on what kind of pro- ing process to allocate proceeds and deter- investors as lead plaintiffs and class reps, cedural protection you put around it. The mine eligibility. It also avoids the situation and they are really taking a hands-on role idea of walking into an arbitration without where plaintiff counsel are perceived to have in managing the lawyers in the case. The discovery with an arbitrator that you really an inherent conflict of interest in allocating recoveries have become much bigger as a don’t know and you know it’s the end of the settlement proceeds among numerous indi- result. But it’s manifestly unfair for a class line—there’s no appellate court that’s really vidual clients. rep to be the standard bearer for the judg- going to do anything about it—is a very ment of the jury as to whether the whole scary prospect. SB: The real question then is whether class should recover. I have seen too many you need to do anything to the rules in situations where the class rep turned out Kenneth Feinberg ’70 Founder, The order to make clear that courts have that to be a blah. I just had a mock trial where Feinberg Group: Actually, when it comes to opportunity available to them, or, whether I watched the deliberations of a mock jury; mass torts, mediation has been much more it’s already there. What I am talking about is they put so much emphasis on the class effective than arbitration. In the class action a court saying at the outset, I’m not certify- rep’s testimony, even if it really had noth- context, the mediator is ing this thing unless there is a process at the ing to do with the merits of the case, that it often designated by the end of the case that will efficiently resolve unduly prejudiced the rights of the absent court to act as a special the claims to compensation. class members. settlement master, with SI: We’ve had that for a long time in HH: A minute ago Sam put employment authority to attempt to some areas of class actions. The B1 cases, on the table. But employment cases raise a secure a voluntary consen- which are the modern prize cases, in effect, different issue for this group—namely that sual resolution of the dis- have had that built in because of compelled certain industries are allowed to privatize pute. This is what Judge Jack Weinstein did in participation. The pre-1991 Title VII cases procedure and opt out of the class action the Agent Orange class action by appointing had that because they had Phase 1, which mechanism. In other words, corporations me. Mediation works best in mass torts where was a liability trial done by the judge, and use private contracts that require work- the litigation has sufficiently matured over the then Phase 2, which was handed over to a ers to waive their class action rights. We’ve years—where there is a litigation track record special master to adjudicate. The area that emphasized a number of important ben- concerning liability, causation and dam- we’ve had trouble was in the tort-like cases. efits that come from class actions—that ages—so that the mediator can use litigation Here it is unclear, for the reasons that you’ve they deter wrongdoing, create account- benchmarks to help forge settlements. identified, Steve, what weight to give to ability mechanisms and compensate the two components: the victims of wrongdoing. SB: The evidence about the efficiency public regarding compo- What does this group of arbitration is quite mixed. Theoretically, nent and the private com- think about allowing it’s very possible that an effective arbitra- pensatory component. certain industries sim- tion system as the backend of a class action One of the difficulties we ply to opt out of the actually might encourage more courts to are having in the class class action mechanism certify class actions: if they knew that at the action law now is that entirely? How will that end of the day, we can resolve a major issue post-1991, we’ve basically affect corporate practices in the case through conventional trial of turned employment cases in the long run? class-related issues, and then when we get into tort cases and so now SI: We talk about to the individual compensation questions, all of a sudden we have a class actions trans-sub- that difficulty can be handled later through great deal of difficulty stantively, but in fact arbitration—it might actually be a good figuring out how to han- we have different areas thing for plaintiffs. dle even the routine Title of law that are covered MW: We are doing it now in the KPMG- VII employment disparate Helen Hershkoff here. Securities cases Sidley Austin settlement where we have a impact case. Joel S. and Anne B. Ehrenkranz make up about half the procedure for the special masters to resolve BN: Taking my pri- Professor of Law class actions in federal certain compensation issues after the vateer theory a little bit courts. Securities, after approval. We did it in virtually every one further, class actions are really an entrepre- the PSLRA, have real clients with real inter- of the life insurance marketing fraud cases. neurial-driven phenomenon, where what ests, and we’ve succeeded in turning them And I would say at least 30 major cases were we’ve done is delegated to a series of private much more into old-fashioned representa- resolved that way that would have been law enforcement officials, called plaintiffs’ tive litigation—that is, you now have one impossible without using that methodology. lawyers, the responsibility of organizing the defendant and one institutional player on

40 THE LAW SCHOOL AUTUMN 2006 the other side and they strong institutions and ing the machine away and substituting state- basically are litigating who claim that the insti- wide class actions? against each other and tutions have treated them BN: Well, we would have to talk about the everybody gets brought shabbily. If you force relative loss of efficiency in moving to 15 or along in their wake. the individuals to con- 20 litigations instead of one significant one. In the areas where you front the institutions on I have a hunch that will cost both plaintiffs don’t have an institution- a single member basis and defendants money. al actor who can emerge, either through traditional SI: An example is the Bridgestone/ the arbitration issue has Souter one-on-one litiga- Firestone case [In re Bridgestone/Firestone, become the critical en- tion or, even worse, on the Inc.] where a national class action was cer- forcement question. In a one-on-one actions of an tified in federal court through an MDL in significant case out of the arbitrator, you’re going to Indiana. It goes up to the Seventh Circuit. Samuel Issacharoff California Supreme Court have a situation where Judge Frank Easterbrook writes a very pow- Bonnie and Richard Reiss Professor last summer, the Discover the institution always erful, thoughtful opinion about how this is of Constitutional Law Bank case [Discover Bank has a huge advantage. If I an invitation to the central planner model v. Superior Court], the had to debate with Linda and this can’t go forward as a national class court said that if the effect of the arbitra- the relative difference between the way action, so the plaintiffs lick their wounds tion is for practical purposes to deny any Continental courts treat this and the way and go running off into 50 state courts. And realistic enforcement mechanism—which the U.S. treats this, Continental courts con- then Bridgestone/Firestone complains: it would be in a consumer small value tinue to force individuals to confront large We’re getting slaughtered by the transaction case—the court would disallow compelled aggregations of power on their own. The costs of being in 50 different jurisdictions. individual arbitration as contrary to pub- U.S. has worked out a mechanism where They settle the case on a national class- lic policy. This is a big issue in the courts individuals can aggregate into classes. And action basis in a state court in Beaumont, right now. by aggregating their power, they can con- Texas. So tell me what the gain was in terms OC: Helen does us all a favor by bring- front large institutions with some relative of the integrity of the system at that point. ing this up because it does put the class degree of power. Are we going to dissolve AM: All right, one anecdote for you, none action issue and the arbitration issue into those social institutions and send individu- for me. Just as a philosophical question: a broader social context. It’s not only labor als back to having to confront large institu- Should New Jersey have a nationwide Vioxx cases, it’s also consumer cases. We’ve all tions of power on their own? class action? I’m referring to the third-party- gotten notices from American Express tell- LS: I don’t disagree with you, Burt. On payer case that was just affirmed by the ing us that we have to arbitrate and we can’t the other hand, it really does go to the intermediate appellate court. have class actions. But you can’t separate fundamental political question of whether SI: If the question is, should Merck be that out from such apparently unrelated these issues are to be decided by courts or accountable to the laws of New Jersey for events as the drop in the number of people by other branches of government. its nationwide conduct, I have no problem in organized labor to about 13 percent of the AM: Burt, that was a subtle paean for with that whatsoever. working population. Or, that while laborer the national class action. Don’t you get the AM: Do you think judges would? I mean, wages have stagnated in the last 15 or 20 feeling you’re on the deck of the Titanic this 50-state law issue has become the years, CEO compensation has gone up 1,000 right now? sword in the back of the plaintiff’s head. percent. This is part of the continuing mar- BN: First of all, no one has ever accused SI: We have to distinguish between ginalization of a certain class of society and me of being subtle. Yes, I’m on the deck of where the battle lines are now and what in the end we are going to rue it. I wonder if something, but no, I don’t think it’s sinking. the points of principle are. It is true that in that California case will survive some kind The truth is, there’s a huge discussion about all big class actions right now, everybody of review under the Federal Arbitration Act the role of courts, how one assures there knows the drill. You fight over manageabil- by the Supreme Court. Who controls the isn’t unfair profiteering or unfair treatment ity and superiority. The way you do that is Supreme Court in the end is going to be as of weak class members. Obviously if you by the plaintiff saying, “We have 50 laws, important as the way we draft these rules. are going to build a machine like this, the but they’re all the same. We have many facts SB: Actually, that points to a much wider machine requires some but they are all the same question, at least in the arbitration area. degree of policing. Rule because at the end of the It’s not really limited to employment. The 23 goes a very long way day the question is, are Supreme Court has been saying ever since to providing that. But the we all human beings or the ’60s: Yes, you can arbitrate RICO, anti- notion of throwing the not?” If you can answer trust, securities law—but on the assump- machine away and sub- that question common tion that rights are being vindicated. The stituting individualized to everybody, then you Green Tree [Green Tree Financial Corp. v. litigation or some form of should certify. And then Bazzle] case a couple of years ago addressed arbitration strikes me as the defendants will come the question: Would that mean arbitration an absolute surrender of back and say, “Oh, no, without class action doesn’t permit effec- any chance of some sort we have 50 laws and they tive enforcement of rights? The court kind of equality between the are so complicated and of punted on that subject. But that’s a live large numbers of indi- so different. If you went issue outside the area of employment. viduals that confront the from New York to New BN: The real issue is how level we want small number of powerful Geoffrey Miller Jersey you wouldn’t even the playing field to be between relatively institutions in the society. Stuyvesant P. Comfort recognize the legal sys- weak individuals who are confronting very AM: What about throw- Professor of Law tem.” And then it’s not

AUTUMN 2006 THE LAW SCHOOL 41 that we’re all human beings. Some of us SI: The issue preclusion point is a fas- because there is this entire other dimension were born on Monday, some on Wednesday, cinating one that is rarely addressed. If we of having to resolve the disputes in 5,000 there’s no commonality at all. So this is the take issue preclusion seriously, it is class- cases versus one case. game we play. My view is, if it’s national wide litigation without the Rule 23 protec- MW: It depends on what forum you’re in. conduct, undifferentiated, let’s deal with it tions. There’s a lot of pressure toward issue If you’re in an MDL forum and the judge is one time and for all as a national case. preclusion right now because everybody coordinating a lot of individual cases, there MW: The verdict against Vioxx didn’t wants the efficiency. There’s an interest- are decisions made along the line by both only cover the personal ing opinion by former sides that give more procedural protection injury aspect of the harm, Judge Robert Parker of that you are picking the right case or cases but there were also con- the Fifth Circuit called to test the waters with it. Let me just show sumer fraud issues that In re Chevron in which you an example. I just coined a new phrase were given to the jury in he says: If you want issue for the IPO cases that I have: a mass of class their questionnaire. And preclusion, you have to actions. We have 310 separate class actions, the jury awarded even try a statistically robust each with its own lead plaintiff, arising out the person who wasn’t sample and you have to of similar conduct, taking place during the given any money for make sure the sampling same period, that we allege to be indus- the personal injury part, mechanism is proper. trywide. As a result of judicial economy money for the consumer AM: Judge Richard we have 310 separate class actions in one fraud part. Is that going Posner’s opinion in Rhone- forum. Who’s at the front of the line for to be collateral estop- Poulenc Rorer [In re Rhone- adjudication and who’s at the back? And pel against Merck with Poulenc Rorer Pharmaceu- how do you settle with defendants fairly to respect to the third-party- Linda Silberman ticals Inc.] is in the take into account this alignment that was payer cases or consumer Martin Lipton Professor of Law same philosophical vein— sort of forced upon us for judicial econ- fraud class action? that you shouldn’t allow omy purposes? These are very challenging AM: It’s a wonderful law school exam an industry to swing on one jury verdict. jurisprudential issues that are both pro- question. Also, it takes you back to the pos- EC: There is one other respect in which cedural and substantive in nature. I think sibility of going to a test-case model where issue preclusion is not just Rule 23 class the courts are probably the best forums you may have a class action based in a state. action without Rule 23. From the perspec- to deal with it. If you do generate collateral estoppel, that tive of trying the cases, when you are dealing OC: But are they? When you talk about certainly shortens the transaction cost for with issue preclusion you have to win every massive class actions, nothing is more mas- succeeding. time and you only have to lose once. In a sive than the asbestos scenario in terms of SB: That’s right in theory at least, so long class action situation, it may be that there’s the number of people harmed, the num- as state courts are willing to play some role only one trial, but you only have to win once. ber of cases and so forth. Justice Helen in coordinating. If you know that in New And that’s a fundamental difference. Freedman in New York County has some- Jersey there are 10 other cases out there and LS: But, Evan, to pick up on Arthur’s thing like 10,000 cases in front of her. These you have a way of taking account of which point, the notion that you’re going to have cases will never be tried. Do we need a new one filed first, which one is in the most a single jury that’s going to decide a critical procedural vehicle? Is there some way that appropriate position to go forward, there’s issue in this national class action and have these people who have suffered real harm no reason why a state court couldn’t host the potential viability, as Posner put it, of and deserve compensation can get it in the a national class action and do just as fine a this company turn on a single jury verdict— legal system that we have? job as federal court. I don’t suffer from the it’s one of the problems with the notion of SI: We have section 524(g) of the bank- myth that every state court judge is inca- having a single nationwide trial and that’s ruptcy code, which says, bring the asbestos pable of figuring out what the law in some why, at the end of the day, cases into bankruptcy other state is. he resists a national class. court. Judge Anthony LS: No, but I want to say a word in favor With respect to issue Scirica in the In re: of federalism and the role of state laws. We preclusion, that’s why Combustion Engineering do have state laws and there are differences we don’t use nonmu- case in the Third Circuit in them. The notion that these should all tual issue preclusion in writes an opinion in be disregarded in the name of a national these cases where there bankruptcy that, if one market seems to be wrong, unless Congress are multiple suits and did not know it was a actually takes the step and decides we potentially inconsistent bankruptcy case, would want these things regulated by federal law. findings. pass for a Rule 23 deci- That doesn’t mean that you can’t have a EC: I’m not necessarily sion. Okay, you want to national class action if you can use, as Mel advocating one over the kick it out of bankruptcy, said before, subclasses. But it’s a mistake other. What I’m saying is we go back to the model to think, yes, there are three groups and that they are two very dif- where you have a private it’s now automatically a manageable class ferent models. It may well Melvin Weiss ’59 claims resolution facility action. As for issue preclusion, you don’t be a far more dangerous, Senior and Founding Partner, set up by the defendants get issue preclusion if the underlying laws treacherous path to put Milberg Weiss Bershad & Schulman and the consolidation are different and there’s a legal issue to be all of the eggs of the reso- of all these cases in the determined. Obviously if it’s a factual issue lution in one basket and try the case once. hands of private lawyers, something that is you might well have nonmutual preclusion I’m just saying it’s not so easy to compare completely nontransparent. These are seri- in some of these cases. them as either/or substitutes for one another ous problems, but it is institutionally irre-

42 THE LAW SCHOOL AUTUMN 2006 sponsible for the courts to justice in the U.S. feel same. During the deliberations, which took throw up their hands and about the legal system? place in the state departments of Germany say: Oh no, this is not the It’s not clear to me that and the U.S., we included a lot more people Johnny-punched-Freddy litigants in large class into the resolution than really had an ability case that we would like to actions, or even in small to get their claims adjudicated because the have in our courts. individual one-on-one companies that they had worked for were HH: You say that cases, feel either a sense no longer in business. Money was being put Oscar’s approach would of consumer satisfaction up by governments as well as companies to be nontransparent, Sam, or—more important—a try to remedy the situation. At the end there but of course that’s only sense of citizen satisfac- was a recognition that without the lawyers, because we’ve designed tion—of trust and secu- and without the ability to spark the resolu- the administrative rem- Burt Neuborne rity—that a democracy tion through litigation, there would have edy in a nontransparent should encourage been no recoveries. Inez Milholland Professor way. We can use our cre- SB: We actually have AM: An interesting illustration of the use of Civil Liberties ativity and imagination to available to us readily at of litigation for political, social and emo- create and establish new forms of adminis- hand and widely used, a system to permit tional objectives. Thank you all.■ trative procedures that could be more trans- much more communication and participa- parent and would deal with some of the tion, and that is the Internet. It is theoreti- problems we currently face. cally possible to have some sort of manda- SI: As long as the political branches are tory information communication system Cheat Sheet not willing to step up to the plate. Look, we that says that if you’re going to have a class CAFA: The Class Action Fairness Act of 2005 have not gotten asbestos reform for good action, we’re going to put every darn docu- was enacted by Congress to reduce “abuses reasons and for bad reasons. We got black ment up on some Web site with somebody of the class action device” that “harmed class lung reform and it turned out to be a way of explaining what’s going on, with a blogging members,” “adversely affected interstate com- passing the liabilities from the private enti- system to allow people to comment on it. merce” and “undermined public respect” for ties to the taxpayers. Maybe we should do SI: Courts are doing that. That’s becom- the judicial system. The act amends Rule 23 of that with asbestos also, just say okay, just ing a routine part of the order and it’s really the Federal Rules of Civil Procedure. have public liability. changing the world in two ways. One is Coupon Settlements: A form of class that clients now are in chat rooms among action settlement in which class members Birnbaum: It’s time to handle asbestos themselves and they are talking about the receive coupons for future purchases of goods through a different system than litigation. It’s lawyers, the settlement, what other lawyers or services from the defendant, but class coun- very costly and erratic. Some people get more are offering them, and so it’s empowering sel typically receives a monetary award in the than they should and others less. An admin- clients. The other is that it’s transformed the form of attorney’s fees. istrative system, even funded privately, would way in which you do business. I was heavily Daubert hearing: A hearing conducted be more effective and efficient. involved with the fen-phen litigation. And by a judge to determine the validity and when we settled on a national basis, we had admissibility of expert opinion testimony. SB: Just to add to Helen’s point on trans- to notify a class of six million people. There Letters of Marque: Written authority parency, you don’t have to view the arbitra- was no way of finding them because many granted by a government to a private person tion system, just because it has traditions got prescriptions from doctors in fly-by- that allows for the seizure of goods or citizens associated with it, as incapable of change. night clinics. We did a national ad campaign from another state. What they amounted to For example, the National Association of that said: Here are the forms, download were licenses for private persons to arm a ship Securities Dealers just recently came out them off this Web site. We had 1.3 million and seize goods from an enemy; such persons with a rule that essentially says that we are hits and close to a million downloads in a were then called “privateers.” going to require arbitrators to issue opin- one-week period. MDL: Multidistrict Litigation is when a num- ions that explain what they are doing. That’s AM: Mel, the Holocaust cases, which you ber of civil actions involving common issues entirely within the power of those who are are deeply involved in, as was Burt, was the are transferred to one particular federal dis- creating these systems. class that never could have been certified. trict court. Cases may be transferred for coor- OC: We haven’t talked about the 9/11 You know it, Burt knows it. What was that dinated or consolidated pretrial proceedings. settlement forum and Ken Feinberg’s work, all about? PSLRA: The Private Securities Litigation but it seems to me that was an imaginative, MW: We had an opportunity to raise an Reform Act of 1995 was enacted by Congress fairly transparent system and if you com- issue that hasn’t been dealt with in 50 years. to amend the federal securities law to reduce pare the World Trade Center bombing in An analysis was made of the treaties that “abusive litigation” and “coercive settlements” 1993, which I believe has still not come to had been entered into that gave us a ray of as well as to provide new rules for auditors to final resolution, with the handling of the hope. It is obvious to all of us that we might detect and disclose corporate fraud. 9/11 disasters, people have been paid. have problems covering all the victims, but Rule 23: The Federal Rule of Civil Procedure SI: Because we are not taking money we used the lawsuits as a mechanism to get that governs class actions. from a defendant to pay for it. Any time that the attention of governments and we were Workout: An agreement or set of agree- we want to take public money and distrib- able to integrate their help into the litiga- ments worked out between a debtor and his or ute it generously, we can figure out the pro- tion process. We settled the Swiss bank case her creditors for payment of debts—usually to cedures, but I’m not sure how much we can as a class action; whereas in the German avoid bankruptcy. generalize from that. slave labor cases, we used an executive HH: We haven’t focused on litigant order approach rather than a class resolu- satisfaction. How do the consumers of tion. But the resolution was basically the photos by leo sorel

AUTUMN 2006 THE LAW SCHOOL 43 Faculty Focus

PORTRAITS OF A LAW SCHOOL: “I’m honored to have been able to hire 18 incredibly talented new colleagues since becoming dean in 2002,” says Richard Revesz. Here, in alphabetical order, is a gallery of these stellar professors: 1) Jennifer Arlen, 2) Oren Bar-Gill, 3) Rachel Barkow, 4) Lily Batchelder, 5) Stephen Choi, 6) Kevin Davis, 7) Cynthia Estlund, 8) Roderick M. Hills Jr., 9) Daniel Hulsebosch, 10) Samuel Issacharoff, 11) Deborah Malamud, 12) Florencia Marotta-Wurgler, 13) Smita Narula, 14) Cristina Rodríguez, 15) Margaret Satterthwaite, 16) Robert Sitkoff, 17) Jeremy Waldron, 18) Katrina Wyman. quium visitor, who will coteach the series this year, his first as an NYU professor. For his part, Nagel confessed that he learned something new about Dworkin when he read the Law School cover story about his old friend last fall. After his federal appeals court clerkship with Judge Learned Hand, Dworkin opted to work for Sullivan & Cromwell rather than clerk for Supreme Court Justice Felix Frankfurter. Nagel imagined an alternate reality, in which Dworkin had pursued a different path. “I’d like to thank Sullivan & Cromwell,” said Nagel, getting a big laugh, “for enriching our philosophical lives and for giving me the friend and colleague with whom it has been such a joy to work.” Hoffmann was equally appreciative of

Frank Henry Sommer Professor of Law Ronald Dworkin, center, holding his commemorative crystal gavel with Dworkin’s contributions. He described how Dean Richard Revesz, left, and 2006 Annual Survey of American Law editor-in-chief Malachi Boyuls. Law’s Empire (Harvard University Press, 1986), Dworkin’s masterwork on the judgment of particularly difficult cases, “offered Annual Survey Honors Dworkin the best explanation for what I was trying to do.” Dworkin’s latest book, Justice in Robes, ome were friends and colleagues; the Jeremy Bentham Professor of Law and breaks new ground and deals with the bal- others were intellectual adver- Philosophy at University College in ance between judges’ personal morality saries of one of the most note- London, has challenged the intel- and their legal reasoning. worthy and frequently cited lectual community is by creating Silvers, Dworkin’s longtime editor at legal philosophers of the past the ground-breaking Colloquium in the New York Review of Books, needed century. All came together to Legal, Political and Social Philosophy, only to list some of the most impressive of S honor Ronald Dworkin when the 63rd which he has run since 1987 with Nagel. Dworkin’s 57 articles—“The Jurisprudence volume of the Annual Survey of American Sager described it as a rare, sometimes of Nixon,” “Women and Pornography” and Law was dedicated to him on April 17. With masochistic opportunity for scholarly assis- “The Threat to Patriotism”—from the past this award for his exceptional role in the tance. He recalled one academic who, after 38 years to show how the works provide a study and practice of law in the United a take-no-prisoners analysis, responded “skeletal history of the times.” States, Dworkin, the Frank Henry Sommer to the colloquium’s attentions by turning The audience chuckled when Posner, Professor of Law, joins the ranks of honor- his back and crouching in a fetal position. whose relationship with Dworkin has been ees such as Supreme Court Justice Antonin “Ronald has a dogged insistence to get to the characterized by what he called “antago- Scalia (2005), Judge Richard Posner of bottom of things,” Nagel said. “His is a ruth- nism and antipathy,” said, “To be an invited the U.S. Court of Appeals for the Seventh lessness of ideas.” skunk at a garden party is an unusual Circuit (2004), Attorney General Janet Reno There has been pain, but also gain. “I experience; one that argues generosity on (1998) and Supreme Court Justice Thurgood believe that everything that I have written Professor Dworkin’s part, or perhaps a spirit Marshall (1983). bears the improving mark of those rigorous of mischief on the part of the editors.” During the dedication ceremony, hosted sessions, and if there is an ounce of egali- “The editors have shown great wisdom by Annual Survey editor-in-chief Malachi tarian good sense in my book on property in choosing Dworkin,” noted Dean Richard Boyuls ’06, Dworkin’s colleagues—Univer- and my subsequent writings, it is Ronald Revesz. “I was so pleased when they asked, sity Professor Thomas Nagel; Judge Posner; Dworkin’s responsibility,” says Dworkin’s ‘Do you think this would be okay?’ I thought, Professor Lawrence Sager, who has since former student Waldron, a frequent collo- this is more than just okay, this is great!” ■ become dean of the University of Texas School of Law; Professor Thomas Scanlon of Harvard University; Lord Hoffmann of the House of Lords; Robert B. Silvers, coeditor of the New York Review of Books; and then-Columbia, now-NYU University Pro- fessor Jeremy Waldron—reminisced about “Ronnie’s” long and illustrious career. The portrait that emerged was of a man as intellectually relentless as he is charming. “He is a person single-handedly swimming against the tide to keep up and raise the standards of our collective political life,” commented Scanlon. One of the ways Dworkin, who is also Richard Posner, left, Thomas Nagel, center, and Jeremy Waldron were just some of those praising Dworkin.

AUTUMN 2006 THE LAW SCHOOL 45 FACULTY FOCUS

It’s All Academic etting an entry-level teaching job at an accredited law school isn’t an easy G task—only about 110 of the more than 1,000 applicants each year succeed. But the Law School is beating the odds. According to the recent Entry Level Hiring Report by Professor Lawrence Solum of University of Illinois College of Law, 12 job-seekers with NYU J.D.s found teaching spots in 2006—representing the fourth highest placement number among all law schools. An additional nine candidates with NYU Terry Maroney graduate law degrees, fellowships or acting assistant professorships were hired as well. New hires found David Garland will use his fellowship to study the death penalty and why it persists in American society. positions at schools such as Cardozo School of Law (Margaret Lemos ’01), NYU School of Law (Florencia Marotta-Wurgler Garland Gets a Guggenheim ’01), USC Law School (Shmuel Leshem (LL. M. ’02, J.S.D. ’05)) and Vanderbilt University ast April, David Garland became the understand the persistence of the death Law School (Terry Maroney ’98). most recent Law School professor to be penalty in America, explain the system’s The credit goes to the two-year-old L awarded a fellowship by the John Simon “strange forms and peculiar characteristics” Academic Careers Program (ACP) run by Guggenheim Memorial Foundation. With and examine how the system actually func- Crystal Olsen Glynn and Jacob D. Fuchsberg this honor he joins the ranks of Ronald tions in American culture and society. Professor of Law Barry Friedman, who also Dworkin, Thomas Franck, Stephen Holmes, “David is one of the world’s best sociolo- directs the Furman Academic Program. Thomas Nagel, William E. Nelson and John gists working in the criminal justice field,” Glynn and Friedman help candidates orga- Phillip Reid. says Professor Bryan Stevenson, a nation- nize their scholarship, CVs and credentials Garland, the Arthur T. Vanderbilt Pro- ally recognized expert on capital punish- for the annual American Association of fessor of Law and a professor of sociology, ment and director of the NYU School of Law Schools (AALS) hiring conference in will use his award to pursue his sociologi- Law’s Capital Defender Clinic in Alabama. Washington, D.C. The ACP also runs a “job cal research on capital punishment and “His writings on the American death penalty camp” each fall to demystify the hiring pro- American society. He says he will try to have been brilliantly illuminating.” ■ cess. Maroney, who defended her paper, examining the effects of mood disorders and brain damage on an individual’s compe- tence to stand trial, before Professors Oren Weiler’s Inaugural Lecture: Bar-Gill, Rachel Barkow and David Garland at the last job camp, says: “I received impor- “The Binding of Joseph” tant commentary from faculty and other candidates and my paper eventually got to For his inaugural University Professorship the level it needed to be. Doing the moot job lecture, Joseph Weiler chose to explore a biblical theme, as he had in his 2002 inau- talk prepared me to think on my feet while gural speech as the Joseph Straus Professor at the AALS hiring conference.” of Law. His talk, “The Binding of Joseph,” fo- “You can’t enter the market without years cused on an oft-overlooked passage of Gen- of preparation to make yourself a viable esis in which Jacob sends his son Joseph to check on his brothers, putting him in harm’s candidate,” says Sam Buell ’92, a former spe- way. Utilizing episodes from Oedipus Rex, cial attorney for the Department of Justice’s ancient and modern biblical and theological Enron Task Force, who contacted the ACP scholarship, and modern notions of sacrifice, after deciding to pursue a career in teach- Weiler proposed a radical interpretation of ing. “I’d liken the legal market for teaching the narrative: Jacob may be a reckless father for consciously putting his son in danger, to the NFL draft, or qualifying for the PGA but his limitless faith coupled with self-skep- Tour.” With the help of the ACP training, ticism and humility make him an admirable Buell made the cut. This fall, he will teach model for the religious character. Securities Regulation and Criminal Law at Washington University School of Law. ■

46 THE LAW SCHOOL AUTUMN 2006 Cassese Named Golove Gives First Hiller Family a Judge; Noble Foundation Speech Reelected iller Family Foundation Professor of Sabino Cassese and Ronald Noble, both Law David Golove delivered his timely law professors from the NYU community, H and provocative inaugural lecture last recently won major appointments in or- spring, “A Constitutional Law of Foreign ganizations abroad. Affairs for the 21st Century.” Golove, who is Cassese, a Global Visiting Professor also director of the J.D./LL.M. Program in of Law, joined the Constitutional Court of Italy on November 9, 2005, five days after International Law and a faculty codirector of his appointment by then-President Carlo the Center on Law and Security, examined Ciampi. A professor of administrative law instances in U.S. history when the executive at the University of Rome-La Sapienza branch has overreached during wartime and and the former director of its Institute of Public Law, Cassese also served as Italy’s made comparisons to the counterterrorism minister for public administration. He is tactics of the Bush administration. a prolific scholar, specializing in adminis- Take the Bush administration’s deci- trative law history, the European Union’s sions to eavesdrop on U.S. citizens with- administrative structure and the role of out warrants, to utilize torture and extraor- independent administrative authorities. Last September, Ronald Noble, an dinary rendition in intelligence gathering, NYU School of Law professor on leave, and to detain prisoners indefinitely with- was appointed to a second five-year term out formal charges. Golove argued that as Interpol’s secretary general. The vote, James Polk’s provocation that began the by the Interpol General Assembly, was unanimous. “I know Ronald Noble to be 1846 Mexican-American War and Franklin if not to defer outright,” he said. “If he can’t a tireless worker, a leader and a visionary Delano Roosevelt’s disregard for the 1930s make the case to Congress, then we should who is deeply committed to the goals of Neutrality Acts that led to U.S. involve- be doubtful that violating the laws of war is Interpol,” said Jackie Selebi, the organi- ment in World War II were precedent-set- really a good idea.” zation’s president. Noble has served as ting examples of emboldened imperial war After the lecture, Golove took questions both assistant secretary and undersecre- tary for enforcement for the U.S. Treasury, powers, but that the current administra- from the audience. At the end, a young man deputy assistant attorney general for the tion has far exceeded them. “This adminis- raised his hand and asked why Congress Department of Justice and president of tration’s approach is like a perfect storm in can restrain the president, but isn’t sub- Interpol’s Financial Action Task Force. which developments in a variety of areas ject to the same short-term checks itself. come together to achieve a radical depar- Congress’s decisions are subject to scrutiny ture from past practices,” said Golove. through public debate, Golove explained, For the president and his administration trying not to smile too broadly. The ques- to act without the authorization of Congress tion came from his 13-year-old son, Lewis, during a time of endangered national secu- whom he calls his “most acute critic.” Says rity not only denies the public a chance Golove: “I drive him to school every morn- to debate a critical topic, said Golove, but ing. I have a captive audience and run all implies that the action itself is question- my ideas past him, and this is what he does Noble: Associated Press Associated Noble: Sabino Cassese Ronald Noble able. “Congress would be inclined to give to me every single time!” A fitting way to [the president’s] views substantial weight, end a discussion of checks and balances. ■

A First: Writing Clinic for Clinicians

ore than 60 clinical law teachers from Workshop participants were divided across the country convened this spring into small groups so that their work could M at NYU for the first Clinical Writers’ be thoroughly reviewed and critiqued in Workshop. Sponsored by the Clinical Law the day-long workshop. Barbara Fedders Review (founded by NYU, the Clinical Legal ’97, a clinical instructor at Harvard Law Education Association and the Association School’s Criminal Justice Institute, was of American Law Schools), the workshop was part of a group that focused on the collat- created to give busy clinicians a rare oppor- eral consequences of convictions. She pre- tunity to focus on academic writing skills. sented a draft of a paper on youths required Those skills are increasingly impor- to register as sex offenders. “I had some real tant, said one of the workshop’s facilita- questions about whether what I was doing tors, Jane Aiken ’83, the William M. Van was going to work, whether it made sense, Cleve Professor of Law at the Washington whether it had coherence and integrity and University School of Law, as more clinical whether anybody would want to publish Coeditors of the Clinical Law Review Professors law teachers pursue tenure-track positions it,” she said. “The workshop was just great— Randy Hertz of NYU, left, and Katherine Kruse of where publishing is necessary for success. inspiring and motivating.” ■ the University of Nevada-Las Vegas.

AUTUMN 2006 THE LAW SCHOOL 47 FACULTY FOCUS

playing exercises. There was electricity in Remembering Chester Mirsky the air as students argued motions and presented evidence. We had many wonderful students including Malcolm Spector ’94 (a noted sociologist before attending law school), who later became one of Chet’s closest friends and a great source of support during Chet’s battle with cancer. Chet helped me launch and sustain the monthly Fortunoff (now Hoffinger) Criminal Justice Colloquium. He attended every session, even though it meant he wouldn’t get home until after midnight. Sometimes he stayed the night at our home. I loved critiquing the colloquium with him over a late-night brandy. Chet leaves an indelible imprint on the Law School. With Harry Subin, he was cofounder of the Law School’s first clinic. From that seed, the NYU clinics grew into the top clinical law program in the country. He also leaves behind some first-rate Chester Mirsky with Dean Richard Revesz at the end-of-the-year faculty dinner in May 2002. scholarship, including two books with Mike McConville, a federal criminal procedure James B. Jacobs, Chief Justice Warren E. ished in the controversy, meeting every book with Harry Subin and Mega-Mall on Burger Professor of Constitutional Law and criticism with more evidence. Their study is the Hudson with David Porter. Most impor- the Courts, fondly recalls his friend and col- now regarded as a classic in the field. tant, Chet leaves his passion for justice and league Chester Mirsky, professor of clinical Chet was an inspiring teacher with his strategies for criminal defense in the law emeritus, who died on March 8, 2006. superb oral advocacy skills; he was fast, hearts and on the minds of hundreds of agile and articulate. With students, he was New York University School of Law gradu- het and I met in September 1982 when friendly, even avuncular. He organized the ates who will carry forth his ideals and pass I came to NYU from Cornell on a “look criminal procedure course around role- them on to their students and protégés. ■ C see” visit. We became friends almost immediately and shared our professional and personal lives for the next 20-plus years. Gulasekaram Wins Ladas Memorial Award Chet was brilliant and charismatic. He overflowed with ideas. Politically, he was a cting Assistant Professor of Lawyering in Expressive Works,” published in the “lefty,” but more iconoclast than ideologue. Pratheepan Gulasekaram received Washington Law Review in 2005. In the He liked being controversial and even rel- A the Ladas Memorial Award from the paper, he argues that if trademark law, ished conflict. However, he was warm and International Trademark Association at its precedent and the First Amendment are likable, even lovable. He was constantly annual May gathering in Toronto. properly analyzed and interpreted, creative in motion, usually talking with his hands, The award, which includes a cash prize of works using trademarks and trademarked often excoriating some recent outrage, $2,000, goes to the best paper on trademark products for humor, cultural criticism, par- hypocrisy or irony. law or an issue related directly to trademarks. ody or shock value should be protected, and When I signed on to NYU, agreeing Gulasekaram won for “Policing the Border that trademark owners who sue the creators to revitalize the criminal justice research Between Trademark and Free Speech: of such works “should rarely, if ever, prevail center, the dean and several colleagues Protecting Unauthorized Trademark Use in such actions.” ■ encouraged me to nominate a visiting criminologist to help launch our program. That’s how Mike McConville came to NYU and changed Chet’s life. Mike immediately recruited Chet to collaborate on a study of indigent criminal defense services in New York City. Their book-length empirical study, Criminal Defense of the Poor in New York City (1986), was highly critical of the NYC Legal Aid Society, one of the liberal establishment’s most sacred cows. The LAS leadership, board members and friends, even members of the Law School faculty railed against Chet and Mike—and sometimes me by association. The denunciations and criticisms energized Chet and Mike. They flour- Professor Pratheepan Gulasekaram, standing left, with guests at the International Trademark Association gala.

48 THE LAW SCHOOL AUTUMN 2006 The Great Stonewall of China

By JEROME A. COHEN latory innovations but even to the handling This op-ed appeared in the Wall Street of individual criminal cases. Journal on April 15, 2006. Nothing better illustrates the current stalemate at the top than the pending case iven the Bush administration’s long of Zhao Yan, an able Chinese staff member list of foreign policy priorities, and of the Beijing Bureau of the New York Times. G widespread American concern about Mr. Zhao was detained on September 17, U.S.-China business and security problems, 2004, by the Ministry of State Security— Chinese President Hu Jintao may believe China’s version of the Soviet KGB. He was his government’s repressive criminal jus- detained for allegedly leaking state secrets tice system will get light scrutiny during to a foreign organization, a charge that his forthcoming visit to Washington. He is could result in a long prison sentence, pos- likely to be disappointed. sibly even the death penalty. The U.S. has too much at stake to ignore Mr. Zhao was suspected of informing abuses in China’s courts—and American the Times, before other media learned of business counts on Beijing realizing its it, that former President Jiang Zemin was promise to develop a genuine rule of law. about to step down from his remaining post Accolades for The Bush administration has rightly spo- as head of the Military Affairs Commission. ken out on behalf of victims of a system that The newspaper published the report, which Amsterdam is out of sync with China’s economic and turned out to be accurate, and reportedly social progress. Reformers within the ranks infuriated at least one top leader. But the niversity Professor Anthony Amsterdam of the Communist Party and government Times denied that Mr. Zhao had been one of received the Outstanding Scholar Award who are struggling to bring the judicial sys- its sources. U from the Fellows of the American Bar tem up to world standards have welcomed Although this case, like others said by Foundation in Chicago on February 11. this international support. the police to involve “state secrets,” has Amsterdam has said that he was clerking China’s conservative leaders have been almost totally non-transparent (for for Supreme Court Justice Felix Frankfurter increasingly relied on criminal and admin- a long period Mr. Zhao was denied access in 1961 when “a sense of justice woke up istrative punishment to suppress rising to a lawyer or anyone else), it became clear inside of me.” He took on school desegra- demands for social justice, honest govern- that the investigators had turned up no sig- tion, First Amendment and civil rights cases, ment, political participation and religious nificant evidence to support their suspicion. and, in 1972, won a Supreme Court case freedom, especially among those who feel The only item cited to “prove” his involve- overturning all death penalty statutes. The left behind by the country’s rapid mod- ment was a brief memo written by him Court later reaffirmed the constitutionality ernization. In these circumstances, and about a leadership power struggle that had of capital punishment, and now Amsterdam except for a belated effort to rein in a death nothing to do with the report in question advises capital defendants’ lawyers. Former penalty process that is notoriously out of and that had been illegally seized from the Law School Dean Norman Redlich (LL.M. control, the nation’s leaders have refused Times’s files. ’55) wrote in his nomination, “Amsterdam to approve a host of urgently required Yet by any interpretation of China’s has written, or edited, more briefs in oppo- reforms. Actually, the leadership is badly ambiguous and flexible criminal proce- sition to the death penalty than can be divided about law reform as well as other dure code, the time limit for continuing to listed here.... I cannot think of anyone more important aspects of political reform. This detain Mr. Zhao was about to expire. At that deserving of the [award].” lack of consensus extends not only to pro- point, the police, rather than release him Amsterdam joined the Law School in 1981, posed constitutional, legislative and regu- for lack of evidence, resorted to a familiar as the director of the Clinical and Advocacy Program, and played a pivotal role in the inception of the first-year lawyering course. His scholarship includes research on lawyering theory, civil rights and criminal procedure. Says Professor Randy Hertz, current director of the Clinical and Advocacy Program: “What is perhaps most astonishing about Tony is that his brilliance as a scholar is fully matched by his extraordinary talents and accomplishments as a teacher, public interest lawyer for those most desperately in need of help, and mentor and adviser to law students, practicing lawyers and a host of others. He has been—and continues to be—a beacon of hope for subordinated clients and a shining example for generations

AUTUMN 2006 THE LAW SCHOOL 49 FACULTY FOCUS

technique for extending their custody of a suspect. They charged him with another offense, defrauding a friend, not normally a matter of concern for the secret police. This started the clock running again. At long last, under a hail of criticism from abroad but under evident command from on high, the police recommended prosecution on both the state secrets and fraud charges; and the procurator issued an indictment on both counts. Yet, once again, the case encountered long and unexplained delays, this time in holding the trial. Finally, on March 17, the last working day before the ultimate deadline for a timely trial, the Beijing Intermediate Court issued a surprise decision approv- ing an unusual request by the procurator to withdraw the indictment on the ground that it needed to supplement investigation of the God, Government and You fraud count. Amazingly, the court order said nothing about the impact of this decision on By Noah Feldman building and refused to take it down, even the state secrets count. This op-ed appeared in USA Today when the federal courts ordered him to. Defense counsel immediately asked the on October 17, 2005. The two sides fight it out on a very basic judge in charge whether the court’s decision level in debates about when life begins— also meant withdrawal of that count, and he ichael Newdow, a California atheist, the issue in the abortion and stem cell was told that it did. Under Chinese law this has gained plenty of notoriety over the research debates. And when it ends—the should have resulted in Mr. Zhao’s release, or M past few years. He got a case all the issue that engulfed the nation in the Terri at least a more relaxed restraint under house way to the U.S. Supreme Court contend- Schiavo case. Tell me whether you think arrest or bail. Yet nothing has happened ing that children in general—his daughter religion should play a role in government in the intervening weeks, despite defense in particular—must not recite the words decisions, and I’ll tell you where you come efforts to highlight the apparent lack of legal “under God” in the Pledge of Allegiance in out on these core debates. authority to continue holding Mr. Zhao. school. Why not? Because he believes the Even the ever-controversial debate over The matter is obviously out of the realm words, which were added in 1954, violate same-sex marriage is really about religion of the courts. Yet in this case the political the separation of church and state. and government. Opponents of same-sex leadership seems to be in extraordinary You may have thought Newdow had marriage say that marriage has a traditional disarray, incapable of agreeing upon what gone away. After all, the high court threw religious meaning as the union of one man it should tell the judiciary to do, as it nor- out the case because he doesn’t have cus- and one woman. They don’t want the gov- mally does in important cases. When the tody of his daughter. But he’s back, making ernment to change that. Supporters say Foreign Ministry was asked for clarification, the challenge again on behalf of the parents that the religious definition of marriage has it claimed to be uninformed and surprised. of other children. A lower federal court has no bearing on the purely legal question of Later its spokesman would only say that the already ruled in his favor. whether everyone should have equal access foreign press had misconstrued the situa- Newdow is once again raising hackles to a benefit given by the government. tion in predicting that the court order would and crystallizing just how much a quintes- These hard questions, which reach the lead to Mr. Zhao’s release. Since then, there sential question—one the Framers of the U.S. Supreme Court so often, are lightning has been nothing but a wall of silence. Constitution thought they had nailed—has rods for debate because they go to the very President Hu will soon be exposed to returned to tear at the very definition of heart of who we are as a nation. potential questioning by sophisticated what it is to be an American. It’s a question American audiences. This time they may that’s more divisive today than partisan pol- Is There an Answer? not accept the Chinese leadership’s custom- itics or even religious beliefs: How much of Actually, the Framers had a pretty good ary hypocritical response that “the case is a role should religion play in public life? one, not that either side is reading their under consideration by the judicial authori- intent right. Both like to claim that the ties” and therefore discussion would not be The Divide Constitution is on their side and want to appropriate. Or will Zhao Yan join the ranks The country is split between two camps. enlist the Founding Fathers for their pre- of so many other forgotten Chinese prison- On one side are those who, like Newdow, ferred position. ers because our officials, media, business think that government should be secular, The Newdow-leaners, or “legal secular- representatives, think tanks and universi- and that the laws should make it so. On the ists,” point out that God is conspicuously ties allow President Hu to stonewall? other are those who believe that common absent from the Constitution, and that the values derived from religion should inform First Amendment prohibits an establish- Cohen is an NYU law professor specializing our public decisions just as they inform our ment of religion even as it guarantees “the in China and an adjunct senior fellow for private lives. An extreme example is for- free exercise thereof.” They conclude that Asia at the Council on Foreign Relations. He mer Alabama judge Roy Moore, who put religion and government must be separated is a consultant to the New York Times in the up a 2½-ton granite monument to the Ten by a high protective wall. The Moore sym- Zhao Yan case. Commandments in the state Supreme Court pathizers, or “values evangelicals,” counter

50 THE LAW SCHOOL AUTUMN 2006 that the words “separation of church and ciary is the closed nature of the system now state” also do not appear in our founding Bench Unfair used in New York to elect [Supreme Court] document. Reminding us that the Founders’ judges.” Fourteen years later, the system America was almost entirely Christian—and Judge-Picking for selecting trial court judges is still closed. 95% Protestant—they conclude that Judeo- And in five of New York State’s 12 judicial Christian values are the true basis for our Process Now districts, there is not a single minority national project. Supreme Court justice. By James E. Johnson and In Manhattan, 44% of sitting justices are So, Who’s Right? Cristina Rodríguez minorities. But Manhattan’s record is the Both sides are only half right. The Framers This op-ed appeared in the New York exception, not the rule: Persons of color believed to a man in the importance of Daily News on May 3, 2006. serving as Supreme Court justices in this the liberty of conscience, and they barred one county make up 92% of the statewide a national established religion in order to ew York’s system of selecting trial court total of minority justices. protect that value. Obsessed with taxes, judges rewards influence, insiders and And the closed system has failed to they thought that an official religion would N cronyism. Predictably, that system fails bring about gender diversity. In 2002, the infringe on religious liberty by spending to produce a bench with racial and gender New York State Committee on Women in tax dollars for religious purposes. They also diversity, which are the prerequisites for fair the Courts cited statistics showing that the knew they could never agree on a national decision-making and equal opportunity. Supreme Court had a lower percentage of religion, given their own diverse denomina- New York is one of 33 states that elects women on the bench than any other court tions. But so long as no money was involved its general jurisdiction trial court judges in New York State, except for the upstate and the government was not coercing any- in contestable elections. Every single one county courts: 17% statewide. one in religious affairs, they had no great of the other 32 states allows candidates to Continued support for New York’s objection to religious symbols in the pub- compete for their party’s nomination (or a unconstitutional status quo runs counter lic sphere. Thomas Jefferson excepted, all place on a nonpartisan election ballot) by to the goals of democracy. The time has the early presidents declared public days filing notice, paying a small fee or gather- come to create a judicial selection system of Thanksgiving and prayer—even James ing signatures directly among party voters. that places judicial qualifications ahead of Madison, author of the First Amendment. Not so in New York. Although the New York political patronage and opens the door to If we were serious about getting back to Constitution guarantees that “the justices... racial and gender diversity. the Framers’ way of doing things, we would shall be chosen by the electors [i.e., the vot- adopt their two principles: no money and ers] of the judicial district in which they are Johnson is the chairman of the board of direc- no coercion. This compromise would allow to serve,” justices are selected through a de tors of the Brennan Center for Justice at NYU plenty of public religious symbolism, but it facto appointment system controlled by School of Law. Rodríguez is an assistant pro- would also put an end to vouchers for reli- political party insiders. fessor at NYU School of Law and serves on gious schools. God could stay in the Pledge, What happens when a good old boys the Brennan Center’s board of directors. but the faith-based initiative would be over, network controls who ultimately serves on and state funds could reach religious chari- the state’s highest trial courts? Consider ties only if they were separately incorpo- the ordeal of Surrogate’s Court Judge rated to provide secular social services. Margarita López Torres, the plaintiff who The public could logically embrace this successfully challenged New York’s judi- modest proposal, and the zealots on both cial selection system. sides should think it over. Secularists want The Puerto Rico-born López Torres all Americans to feel included as citizens, but refused to do the party leaders’ bidding, right now, many evangelicals feel excluded and therefore was repeatedly thwarted in by the limits on their religious expression. her efforts to earn the Democratic nomina- Meanwhile, values evangelicals should rection to the office of Supreme Court justice. ognize that state funding of religion means In January, a federal court struck down the their own tax dollars are going to support judicial selection system, ruling that it vio- radical religious teachings that they abhor. lated the rights of New York’s voters and Our nation today is more religiously candidates like Judge López Torres. diverse than ever. No longer Judeo-Chris- According to the court, Judge López tian (if we ever were), we are now Judeo- Torres “demonstrated...that indisputable Christian-Muslim-Buddhist-Hindu-agnos- qualifications for the job and immense tic-atheist. That means we need a new popularity among the candidate’s fellow church-state solution to reconcile our reli- party members are neither necessary nor gious differences with our common faith in sufficient to get the party’s nomination. America. The Framers’ own views can lead Something different is required: the impri- the way—and we should follow. matur of the party leadership.” A closed, de facto appointment system Feldman, author of Divided By God: means that the composition of the bench America’s Church-State Problem—and What will fail to reflect the racial diversity of our We Should Do About It, is a professor at the state. Back in 1992, the New York State Task New York University School of Law and a fel- Force on Judicial Diversity warned that a

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the military for human rights abuses. Still new faculty not ready to get completely back “on-track” they joined small law firms in Philadelphia before moving to Washington, D.C., where Additions to the Roster Estlund worked at the high-powered union- side labor law firm Bredhoff & Kaiser. The Law School is pleased to welcome seven eminent Balancing competing urges to stay with new professors to its full-time faculty and to introduce the pack or go her own way is one of the things that Estlund does best, according to a distinguished group of 38 visiting faculty and fellows her husband. She also can maintain “a clear- eyed view of the law as a system of gover- to our community. These impressive scholars come nance, power and order,” while not losing sight of what’s right and wrong, he says. from as near as uptown Manhattan and as far away as In 1989, they jointly made the leap into academia, landing at the University of Texas Seoul. Their work is as diverse as their geography; they School of Law. There Estlund taught property and labor and employment law and became specialize in everything from torts to taxes. an associate dean for academic affairs. In 1998, Estlund and Issacharoff took offers to visit and then stay at Columbia Law School. Estlund Cynthia Estlund Working Together: How Workplace Bonds taught and served as vice dean for research. Strengthen a Diverse Democracy (Oxford The move to NYU offers her an academic Catherine A. Rein University Press). In it, she argues that the environment that she calls “a better fit,” and Professor of Law workplace has become the most important a fresh start as she and Issacharoff face their s a visiting professor last spring, Cynthia site of cooperation, sociability and com- first year as empty-nesters. Their children, Estlund did something that her col- munication among people of diverse back- Jessica, 19, and Lucas, 18, will both be at col- A leagues have only fantasized about: She grounds. She also hopes to expand her recent lege. Says Estlund: “We’ve been fortunate banned laptops in the classroom. “She came article “Rebuilding the Law of the Workplace to find a ‘track’ that allows us to follow our in as a complete outsider and tried something in an Era of Self-Regulation” (Columbia Law own intellectual fancy, to lay our own tracks, new that was likely to completely bug the stu- Review 2005) into a book. you might say.” dents. And they went with it,” says Deborah Estlund, 49, was born in a small town Malamud, AnBryce Professor of Law. in Wisconsin. Her late father, Bruce, sang Challenging the status quo is typical in big bands, then became a newspaper for Estlund, who will join NYU as a profes- man until the financial pressures of rais- sor this fall. In her scholarship “she raises ing three children nudged him into public serious questions as to whether the current relations. Her mother, Ann, 71, was a free- labor law system will continue to work in this lance writer. Estlund attended Lawrence country,” says Malamud. And her creative University in Appleton, Wisconsin. During thinking has earned her the respect of her college she held jobs in the school’s cafete- peers. “Professor Estlund has done impor- ria, as a research assistant in an insurance tant work exploring the limits of labor law company, as a restaurant hostess and even doctrine and integrating First Amendment as an apple-picker. Upon graduating in 1978 theory into the law and politics of the work- with a summa cum laude degree in gov- place,” says Professor Samuel Estreicher, ernment, she landed a fellowship to study the director of the Center for Labor and government programs for working parents Employment Law. in Sweden. She lived for two years in an Since entering law school, Estlund’s urban commune, became fluent in Swedish, professional and intellectual interests have worked in the antinuclear-power movement centered on labor and employment law. “I and studied sociology. “I was impressed by liked the idea of representing people who the role that organized labor had played in had their own goals and some power to building a humane society in Sweden and pursue them, but who needed legal help,” across much of Europe,” she says. she says. But recent decades have not been Returning to the United States, she kind to unions or to labor law. In her last entered Yale Law School, where she met her traditional labor law piece, “The Ossification husband, Samuel Issacharoff, now 52, a con- of American Labor Law” (Columbia Law stitutional law expert at NYU. Earning her Review 2002), Estlund discusses the multiple J.D. in 1983, she clerked for Judge Patricia barriers to renewing and reforming the labor M. Wald of the D.C. Circuit. While clerking, laws. “It’s a bit of a eulogy,” she says of the “we realized that we’d become altogether too paper. “It’s about the many ways in which boring,” Estlund says. So she and Issacharoff law reform could happen and does happen took off for a six-month stint in Argentina, in other legal regimes, but doesn’t happen in becoming involved in the newly demo- labor law.” In 2003, she published the book cratic government’s efforts to prosecute

52 THE LAW SCHOOL AUTUMN 2006 Roderick M. Hills Jr. Higginbotham of the U.S. Court of Appeals for the Fifth Circuit. After the clerkship, William T. Comfort, III Montoya landed a job teaching history at Professor of Law the University of Colorado, and Hills followed his wife again—teaching at the law ick Hills, 42, may very well be the only school and practicing at the Law Office of professor who has had to find a home for Jean Dubofsky, where the lawyers worked R his farm animals (goats, a sheep, a pony, primarily on appellate briefs. There he sec- chickens and his horse, Reflector) before ond-chaired, and won, the famous gay civil taking a job at the Law School. Should New rights litigation Romer v. Evans. He went on Yorkers find that odd, the quick-witted Hills, to teach at Michigan in 1994, where Montoya an expert in federalism and constitutional also became a professor. “It was a challenge law, quips: “Thank God we here in Michigan for both of us to be working towards tenure are not governed by a bunch of blue-state while raising our two daughters,” Hills says. New Yorkers who don’t understand the “But it helped that our work overlapped so importance of livestock.” Seizing an oppor- much: Maria’s book was on 19th century tunity to teach by example, he adds: “That’s struggles for land in the American West, so what I mean by federalism. The cultural she was writing on local political corruption divergence between different regions makes and property law—two of my favorite top- it disastrous to attempt to impose a single ics. We read each other’s drafts and learned system of legislation on the nation.” from each other’s research.” Hills, who taught for 12 years at the Uni- “Having spent 12 years in a medium-size versity of Michigan Law School, joins NYU college town,” says Hills, “we’re ready to live in September to teach Land Use Regulation in, and expose our daughters to, the new and The Administrative and Regulatory State. environment of a major city.” He is no doubt The son of prominent D.C. Republicans—his also looking forward to having a new city father, Roderick M. Hills Sr., was the former and state government to examine through chairman of the U.S. Securities and Exchange the lens of federalism. Montoya, 42, will Commission (1975-77) and counsel to Pres- teach history at NYU. Their children, Emma, ident Gerald Ford; his mother, Carla Hills, 14, and Sarah, 12, presumably will have fewer was secretary of the Department of Hous- chores since they will no longer have to feed ing and Urban Development during the and care for Reflector and the gang. Ford administration and U.S. Trade Repre- sentative under George H.W. Bush’s administration—Hills eschewed politics, making a Florencia name for himself in constitutional law. His Marotta-Wurgler research focuses on the costs and benefits Assistant Professor of Law of decentralizing public power. “His learning The second of four children, Hills spent and practical knowledge range across every his earliest years in Los Angeles before mov- rofessor Florencia Marotta-Wurgler ’01 level of government, from local governments ing to Washington, D.C., when he was 10. As was online buying a used copy of a to state governments to the national govern- a teen, Hills played with the Peabody Youth P biography of Russian intellectual Lou ment,” says Richard Pildes, the Sudler Fam- Chamber Orchestra. “I was a super cello Andreas-Salome, when an idea for a research ily Professor of Constitutional Law. “I know nerd in high school,” says Hills, who began paper struck her. “I said, ‘Wait a second. I just of no one else who contributes on the great his undergraduate studies at Yale University gave my credit card to a stranger who lives constitutional issues of our time and who majoring in music. He eventually switched in Sweden. How do I know that I’m going to also attends local zoning hearings, just out of to history, with an emphasis on British intel- get the book?’ What if the seller disappears intellectual curiosity and a desire to under- lectual history and German idealist philoso- in the middle of the night? Do buyers pro- stand the practical workings of government.” phy, earning his B.A. in 1987. After gradua- tect themselves?” recalls Marotta-Wurgler, Hills’s recent work hints at his range. tion, he enrolled in the Committee on Social who will teach Contracts and e-commerce In his forthcoming essay, “Compared to Thought, an interdisciplinary program in beginning this fall. “And what about those e- What? Tiebout and the Comparative Merits the humanities at the University of Chicago. contracts that the buyer is required to click of Congress and the States in Constitutional He’d intended to go for his Ph.D., but quit to on, but rarely reads?” Federalism,” he tackles the issue of gov- follow his then-fiancée, Maria Montoya, to Marotta-Wurgler, 32, set out to deter- ernment subsidies for industry. In another Yale. While she studied history, he entered mine whether online sellers who don’t dis- upcoming book chapter called “Sex, Drugs, Yale Law School, reluctantly at first. “I had close their contracts before the transaction God and Federalism,” Hills examines the no interest in being a lawyer at the time,” he offer worse terms than those who do. She outcome of the 1648 Peace of Westphalia to says. There were too many lawyers already collected and read over 515 software license determine the role that federalism played in his family. His parents had founded the agreements for products sold online. About in defusing conflicts over religion and cul- California law firm of Munger, Tolles & Hills half of the contracts in her sample were ture. Professor Don Herzog of the University in 1962, and two of his three sisters were law- made available to the buyer on the seller’s of Michigan Law School hails the piece as yers. But, “once I got to law school, I loved it.” Web site. The other half went against the Hills’s “best work yet,” predicting that “this After earning his J.D. in 1991, he basic principles of contract law, in that will be a gigantic piece of scholarship.” clerked in Dallas, Texas, for Judge Patrick the buyer was not able to read the terms

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Online Shopping Behavior” to examine Smita Narula buyer behavior online. Born Maria Florencia Isabel Marotta, Assistant Professor of she and her two younger brothers were Clinical Law raised in Buenos Aires by parents who, she ou won’t find Coca-Cola in Professor says, couldn’t be more different from one Smita Narula’s refrigerator—Narula, another. Her mom, Silvana, 56, is an artist; Y 33, a faculty director of the Center for her dad, Horacio, 58, is an engineer who Human Rights and Global Justice (CHRGJ), spurred her intellectual curiousity. “When won’t buy it because the bottling process I was seven, he’d come home at night and in her native India usurps the natural water read me the theory of relativity.” supply. Nor will you see a diamond engage- When it came time for Marotta-Wurgler ment ring on her finger—her husband, to go to university, she didn’t feel comfort- Richard Green, 36, “had to find something able with the European system, in which that doesn’t involve child labor abuses (like students declare their career path from the production of diamonds), armed con- the get-go. “I was interested in a lot of flict or other human rights violations,” she things,” she says, with a slight Argentinian says, with self-deprecating humor. accent, so she pursued a liberal arts educa- Narula simply stands by her beliefs, tion in the United States at the University wherever they lead her. Though her family of Pennsylvania, graduating in 1996 with a is considered upper caste—“It goes against major in economics. Marotta-Wurgler traces me to even identify which caste; I don’t her fascination with economics back to her believe in them,” she says—Narula has Argentinian upbringing, during which the made the cause of discrimination against peso was constantly devalued against the the so-called lowest caste, the Dalits, her dollar. “One day the price of the bus went own. India officially abolished the prac- up so high that I couldn’t afford the ticket tice of untouchability in its 1950 constitu- in the afternoon and had to walk home,” she tion, but the Dalits are still segregated from recalls with a laugh. the upper castes, still live in extreme pov- Eager to learn how to conduct original erty and are forbidden to intermarry, hold empirical economic research, she became a research analyst in 1996 at the National Bureau of Economic Research, an economics think tank in Cambridge, Massachussetts. until after he or she purchased the product. For two years, she worked on projects on The result of her examination, described medical costs and aging. “I liked doing in her yet unpublished paper “Are ‘Pay economic analysis,” she says, “but thought Now, Terms Later’ Contracts Worse for there’s this other angle that I want to explore Buyers? Evidence From Software License that is more typically done by legal analysts.” Agreements,” stunned her colleagues. The That’s when she moved to New York to hidden or “pay now, terms later” contracts attend NYU. She excelled at the Law School, offered relatively more buyer-friendly terms quickly finding her niche in contracts law. than those that consumers were forced to After graduation, Marotta-Wurgler became accept in advance. “While many professors an associate at Davis Polk & Wardwell. She have written about electronic contract for- left after a year and a half to teach. “Some mation at a theoretical level and speculated people love the adrenaline rush of meeting about its consequences, she’s really the first clients and doing deals. I’m more reflective. person who’s tried to discover what’s actu- That’s the way I’m wired.” ally going on in this area,” says Law School In June 2003, she got a Fordham fellow- Vice Dean Clayton Gillette. ship to teach Corporations at Fordham Law In a companion paper, “Competition School and help run the Center for Corporate, and the Quality of Standard Contracts: An Securities and Financial Law. Marotta- Empirical Analysis of Software Agreements,” Wurgler left Fordham in June 2004, when her Marotta-Wurgler, an e-contracts expert who alma mater offered her the Leonard Wagner paradoxically wrote in longhand until law Fellowship in Law and Business. school, looked at whether online sellers with Things fell into place in her personal life a dominant market share take advantage of that year, too, when she met Jeffrey Wurgler. their position by imposing worse terms on In an odd twist, he had worked in the office the buyer. There, too, she found that monop- next to hers during her years at the National olists did not offer unusually harsh terms, Bureau of Economic Research, but they had though they did charge more. She is cur- never crossed paths. She and Jeffrey, 33, who rently working on a paper tentatively titled teaches behavioral finance at NYU’s Stern “Is There an ‘Informed Minority’ of Standard School of Business, married in 2004 and are Form Contract Shoppers? Evidence from raising Lucy, their Norfolk terrier puppy.

54 THE LAW SCHOOL AUTUMN 2006 property or even drink from the same well and to coteach the International Human as those of higher castes. In 1999, Narula Rights Clinic. This year, she was made an spent months in India for Human Rights assistant professor of clinical law and a Watch (HRW) interviewing Dalits about faculty director of the CHRGJ. Professor their plight. The result: her award-winning Philip Alston, the chair and faculty direc- book, Broken People: Caste Violence Against tor of the CHRGJ, says of Narula: “There India’s Untouchables. For her work, as well are few people who are as well connected as her role in bringing together human and able to put students in contact with rights activists in India to form the National that network.” Campaign for Dalit Human Rights, a former In 2005, Narula and her clinic stu- chief justice of the Supreme Court of India dents published “The Missing Piece of the awarded her the Human Rights Award for Puzzle,” examining the role that caste dis- Outstanding Research and Writing. crimination plays in the current conflict in Because of Narula’s exposé and the Nepal. Many of the recommendations in work of the campaign, the Dalits were put the report have been raised in parliamen- on the agenda at the 2001 World Conference tary meetings of the European Union and Against Racism, held in South Africa, says been incorporated into the mandate of the Sam Zarifi, research director of the Asia U.N. in Nepal. Along with Jayne Huckerby, Division at HRW. “What sets her apart,” he CHRGJ’s research director, Narula and says, “is that she combines the passion of her students are now concentrating on a an activist with the dispassionate analysis report critiquing the use of racial profiling of a top academic lawyer.” and lethal force in the shoot-to-kill policies Take the case of the estimated 2,000 that various governments have enacted or Muslims massacred in a bloody three-day authorized in the wake of 9/11. slaughter in the state of Gujarat, India, in Narula’s scholarship similiarly takes 2002. Government officials portrayed on timely social issues. In a recent article the incident as a spontaneous riot that in the Columbia Journal of Transnational occurred in retaliation for an earlier attack Law, Narula asks whether corporations on Hindus that was blamed on Muslims. and international financial institutions Narula traveled to India for HRW to inter- can be held accountable for violations of view hundreds of survivors and police. Her the right to food and other social and eco- report, “We Have No Orders to Save You,” nomic rights under international law. concluded that the Indian government Such focus and intensity is typical of actually engineered the killings, having Narula, says her husband of three months; little bit of both. “She is among a hand- Muslims cut and set on fire with kerosene they were married at the U.N. Chapel last ful of scholars in the United States who lamps. Her report made waves in the inter- June. “She approaches her students, her have managed to combine very thorough national community. In 2005, the United writing, her activism all the same way,” he and nuanced scholarship with timely and States barred Narendra Modi, the Gujarat says. “Fully engaged.” pathbreaking analyses of the most press- chief minister, from visiting. ing issues confronting practitioners in this Narula was born in Delhi to Sudershan, area,” says Professor Philip Alston, who now 65, the director of medical services Margaret heads up the CHRGJ. for the United Nations, and Hans, now 70, Satterthwaite In the three years since returning to who worked for UNICEF and is retired. Assistant Professor of her alma mater to teach, she has generated Subject to their parents’ frequent trans- several important human rights reports fers, Narula and her brother spent their Clinical Law and articles. In 2004, Satterthwaite and earliest years in Delhi, Jakarta and Kabul. o watch Margaret Satterthwaite field CHRGJ researchers, in conjunction with When Narula was nine, the family moved emails in her office, dressed conserva- a committee of the Association of the Bar to New York City, where she attended the T tively in a crisp white button-down shirt of the City of New York, released a hefty U.N. International School. She earned a and navy pantsuit—funky blue/brown plas- legal report called “Torture by Proxy: combined bachelor’s and master’s degree tic glasses not withstanding—one would International and Domestic Law Appli- at Brown University in international rela- never suspect that she once was a rebellious cable to ‘Extraordinary Renditions.’” The tions and international development, teen punker. Then again, nothing about this report concluded that “extraordinary ren- graduating magna cum laude at the age assistant professor of clinical law, who also dition”—sending suspected terrorists to of 20. She went on to get her law degree holds a master’s degree in literature and countries where they risk being tortured at Harvard, where she was the editor of once combed the streets of Haiti investigat- under interrogation—is not authorized by the Harvard Human Rights Journal, and ing human rights abuses, is predictable. any publicly available statute, regulation became interested in caste discrimina- “An unconventional career path? Is it?” or executive finding and violates inter- tion. After law school, she joined HRW. “I Satterthwaite ’99 asks about herself. “I cer- national law binding on the U.S. Satter- feel my relative privilege very strongly,” tainly didn’t want to be a lawyer initially,” thwaite is expanding that research into a she said. “Any measure of privilege brings she concedes. “I wanted to be an activist.” scholarly piece, “Extraordinary Rendition: with it responsibility.” These days, as a faculty director of Testing the Limits of Human Rights Law,” Narula came to NYU in 2003 to the Center for Human Rights and Global which is expected to be published this become the executive director of CHRGJ Justice (CHRGJ), Satterthwaite, 37, is a winter in the George Washington Univer-

AUTUMN 2006 THE LAW SCHOOL 55 FACULTY FOCUS

sity Law Review. In “Fate and Whereabouts She returned to teach at the Law School Unknown: Detainees in the ‘War on Ter- in the fall of 2003, and in January 2006 ror’” (CHRGJ Dec. 2005), Satterthwaite became a faculty director at the CHRGJ and looked at a related issue: the enforced an assistant professor of clinical law. She disappearances of terrorist suspects— also settled down, marrying her partner, detainees who are held in secret locations Alison Nathan, a visiting assistant profes- by the U.S.—many of whom were allegedly sor at Fordham Law School, last spring. “I involved in the 9/11 attacks. thought I’d have a couple more years work- Satterthwaite was raised in Maryland ing in human rights,” she says of the latest and Virginia by her divorced mom, Sara, 63, turn in her career path, “but this was my who worked in a series of “pink-collar jobs,” dream job. It allows me to combine advo- such as dental hygienist. As a teenager, she cacy with scholarship and teaching.” says, “I was politically aware and felt like high school was this world of trying to look good and going to proms.” She fell into a Robert Sitkoff group of activists and jumped at the oppor- Professor of Law tunity to enter the New School’s Eugene t’s clear from the outset of any of Professor Lang College a year early. She took to New Robert Sitkoff’s classes that he has an York City, and soon became involved in I unbridled passion for trusts and estates Amnesty International (AI). (T&E). And by the end of the semester many Satterthwaite earned her B.A. in 1990, of his students do, too. The energetic 32-year- majoring in literature and gender studies, old belts out songs about the class material, then headed to California, where she worked impersonates other law professors and has as an editorial assistant in a publishing com- created his own superhero, Fiduciary Man. pany before entering a Ph.D. program in lit- “I get really worked up and excited in erature at the University of California at Santa class. I just get lost in the moment. Whatever Cruz. Her intention was to become a college it takes to engage the students in the mate- University Press. In 2005, Sitkoff coauthored professor, but she left after earning her M.A. rial,” says Sitkoff, who begins at the Law Wills, Trusts, and Estates (Aspen 7th ed.), the to follow her activist passion: “I realized that School in the fall. Sitkoff’s enthusiasm leading casebook in the field. Sitkoff has also the thing that really excited me was human earned him the Dean’s Teaching Award in been appointed as the reporter, or principal rights work.” Moving to Washington, D.C., in 2002 at Northwestern University School drafter, for the Uniform Law Commission’s 1994, she directed AI’s campaign on gay and of Law, as well as the student-voted title of effort to create a uniform statutory business lesbian rights before joining a human rights Outstanding Teacher of a First-Year Course trust act. “These various initiatives will shape organization called Street Law. She also had (2001). One student evaluation said: “This the field of T&E for decades to come,” says the opportunity to travel to Haiti, where she was my best class since gym.” John Langbein, Sterling Professor of Law at was an investigator for the Haitian National While T&E is traditionally taught from Yale Law School and one of the most revered Truth and Justice Commission; she learned a historical perspective, Sitkoff’s approach scholars in the field. “What Sitkoff is doing Kreyol and investigated the human rights has an economic and empirical bent, mir- is exploring the trust as a mode of economic abuses that occurred during president Jean- roring his scholarly orientations. In one of organization rather than in its dimension as Bertrand Aristide’s exile from 1991 to 1994. his most influential papers, “An Agency a gratuitous transfer.” The work she did in Haiti, with a team led Costs Theory of Trust Law” Cornell ( Law Sitkoff is the eldest of two sons raised by an impressive, Haitian lawyer, made her Review 2004), Sitkoff draws on the agency on Long Island by his mother, Deborah, a realize the importance of a law degree. cost literature of corporate law to develop an former school social worker, who died She was accepted into NYU on a Root- economic theory of trust law. Since that arti- while Sitkoff was a teenager, and his father, Tilden-Kern scholarship, and did two sum- cle, agency cost analysis has become routine Samuel, 64, a retired T&E lawyer. “My father mer internships—one representing Haitian in the literature of trust law. With coauthor was my first trusts and estates professor,” he asylum-seekers and the other working Max Schanzenbach, Sitkoff published “Juris- says. “Apparently, when I was a toddler, I’d for a human rights organization in Port- dictional Competition for Trust Funds: An pick up my toy phone and say: ‘Hello cli- au-Prince. After law school, Satterthwaite Empirical Analysis of Perpetuities and Taxes” ent,’” Sitkoff recalls. A few years later he was completed two clerkships—one with Judge (Yale Law Journal 2005)—the first empiri- typing wills for his dad. Betty B. Fletcher of the Ninth Circuit, and a cal assessment of the effect of abolishing In 1996, after earning a B.A. with honors second at the International Court of Justice the rule against perpetuities. This study, from the University of Virginia, he attended in The Hague. Between clerkships she was which was featured in news media such as the University of Chicago Law School. From a Furman Fellow at Human Rights First. In the Wall Street Journal, found that from the the get-go, “I was captivated by legal doc- 2002, she worked for the U.N. Development mid-1990s through 2003, roughly $100 bil- trine,” he says. “Then when I took a trusts Fund for Women, becoming interested in lion in trust assets poured into the states that and estates class, it became absolutely clear the plight of women migrant workers—a abolished the rule. Their latest study, “Did that this was the area for me.” And the terri- focus that has been the subject of her cur- Reform of Prudent Trust Investment Laws tory within T&E that he wanted to explore rent and previous scholarship, including Change Trust Portfolio Allocation?” is forth- was pretty much uncharted: “That was dou- “Crossing Borders, Claiming Rights: Using coming in the Journal of Law and Economics. bly exciting.” Graduating from law school Human Rights Law to Empower Women These studies, along with several new ones in 1999, he landed a clerkship with Chief Migrant Workers” (Yale Human Rights and now in progress, will form the core of a book, Judge Richard A. Posner of the U.S. Court of Development Law Journal 2005). Sitkoff’s second, to be published by Yale Appeals for the Seventh Circuit. Posner vali-

56 THE LAW SCHOOL AUTUMN 2006 dated Sitkoff’s research agenda by encour- down two of my chairs, so I’m lucky he’s gence of political philosophy, legal philoso- aging his interest in T&E, “so all the pieces coming to NYU,” jokes Dworkin. phy and political theory. “I’m as comfortable came together. ” So, does Waldron’s much-heralded teaching historical political theory—Locke, In September 2000, just three days after appointment mean he is finally set to inherit Hobbes, Aristotle—as I am teaching mod- his 26th birthday, Sitkoff became an assistant the unofficial mantle of the world’s top legal ern constitutional jurisprudence or as I am professor of law at Northwestern University, philosopher from Dworkin? Not according abstract political philosophy,” he says. the youngest on the faculty. “The only deci- to Waldron. “I think that’s nonsense,” he says. Even as a teenager, Waldron had an inter- sion that was easier” than going into legal “First of all, Dworkin shows no signs of giv- est in law and history. He earned degrees in academia, he says, “was marrying Tamara.” ing away the mantle. And things don’t work philosophy and law from New Zealand’s He was at a friend’s barbecue one sum- like that. Everyone works in his own areas. University of Otago, and went to Oxford in mer during law school when he met Tamara, People may use that phrase but it would be 1978 to do graduate work. He first read about 33, who worked in the Chicago public school wrong.” Professor Liam Murphy agrees: “He Dworkin in a 1977 Time magazine profile system. In May 2001, they went on their first doesn’t need to inherit Dworkin’s mantle. drawn to his attention by his mentor and date. Three weeks later it was obvious to He’s famous in his own right.” “philosophical godmother,” Professor Gwen both that they would marry. They tied the A lively, animated teacher, Waldron is a Taylor of the University of Otago in New knot in March 2003 (their rabbi and Judge highly prolific writer of books and academic Zealand. She had written to H.L.A. Hart for Posner both officiated), and last winter their papers. “He’s not just writing more than advice on whom Waldron should study with first child, Deborah Eve, was born. Says some of us, he’s writing more than most of at Oxford. Hart wasn’t taking new students Sitkoff of the dramatic changes in his life: us!” Murphy says, laughing. Waldron, who but suggested Dworkin, and the relation- “These are wonderful, exciting, happy times.” made his mark at 35 in the area of property ship began. “He was very glamorous, quite rights with the book The Right to Private intimidating intellectually, but a good per- Property, isn’t reticent about policy issues, son to work with,” Waldron recalls. Dworkin Jeremy Waldron either, taking strong, sometimes controver- would, typically, shred Waldron’s papers— University Professor sial stands on judicial review (should be courteously, of course—and Waldron says or a scholar who’s been described as a weakened); torture as a way of eliciting infor- he now owes a great debt to Dworkin for his dynamo, a live wire, an enormously ener- mation (should be banned absolutely); and rigorous workings-over. Dworkin, in turn, F getic intellect, Professor Jeremy Waldron multiculturalism (wrong and silly). His stud- remembers Waldron then as “engaging, had a quite uneventful upbringing. He was ies take him to the very center and conver- informal, funny, very fast and quick.” raised in New Zealand’s Invercargill, a small From 1980 to 1982, Waldron was a fel- city in a farming district—“the southern- low at Lincoln College, Oxford. Anxious most city in the British Empire!”—where his to get on a tenure track, he decided to father, an Anglican clergyman, served in the quit Oxford and go to the University of same parish for Waldron’s entire childhood. Edinburgh in Scotland. He stayed there Indeed, Waldron didn’t leave New Zealand until 1987, when he left for the Boalt Hall until he was 25. School of Law. Nearly 10 years later, he and But since then, Waldron, 52, often con- his companion, Carol Sanger, then a law sidered one of the world’s leading contem- professor at Santa Clara Law School, were porary political philosophers, has rocketed recruited separately by Columbia Law through the academic world—to Oxford, School. “I didn’t like New York so much, so to Edinburgh, to Berkeley, to Princeton, to I succumbed to an offer from Princeton and Columbia, and now this fall, to NYU. “In the Carol accepted Columbia.” But he wasn’t area of legal philosophy,” he says, “NYU has happy at Princeton, and after just one year a hugely successful, vigorous intellectual he moved to Columbia. He stayed for “a community. In legal theory, it has people glorious nine years”—just last year he was like Ronald Dworkin, Tom Nagel, Liam named University Professor. Murphy, Lewis Kornhauser, David Richards, Waldron has several projects in the Sam Issacharoff, David Garland, Philip works, including collecting historical writ- Alston and my countryman Ben Kingsbury. ings on the rule of law. That will be the It’s a very rich community.” topic for a course he will teach in the spring. Waldron has visited the Law School This fall, he’ll help conduct the demanding before, presenting papers at the Colloquium Colloquium in Legal, Political and Social in Legal, Political and Social Philosophy, Philosophy with Nagel and Dworkin. run by Dworkin and Nagel. Indeed, his rela- One thing Waldron will be doing less of tionship with Dworkin dates back to Oxford, this year is administrative work. He ran a cen- where Dworkin had been his academic ter on law and philosophy at Columbia and adviser. But though they’ve remained close chaired the University Senate Committee on through the years, Waldron hasn’t always Libraries and IT there. He says that he won’t followed in his mentor’s footsteps. He miss the grinding committee work and that wasn’t tempted by the world’s leading legal he’s happy that he will be able to partake of philosophy chairs that had been Dworkin’s— the classical music, opera and travel that he the Chair of Jurisprudence at Oxford and loves. But also, he says, his new schedule the Quain Professor of Jurisprudence at will give him more time to focus—“on the University College London. “He turned core activity of teaching and writing.” ■

AUTUMN 2006 THE LAW SCHOOL 57 FACULTY FOCUS

has taught economics full time at Goucher on law and sports and write about collective Visiting Faculty College, Wellesley College, the University of bargaining in sports and entertainment. Michigan and the University of Wisconsin- Among Harper’s publications are the Omri Ben-Shahar Milwaukee, and as a visitor or adjunct at books Employment Discrimination and Omri Ben-Shahar is the Kirkland and Ellis Bard College, Towson State University, the Employment Law, Employment Discrimina- Professor of Law and Economics at the University of California, Berkeley and the tion Law, and Employment Law (all West University of Michigan Law School and University of Utah. From 1997 to 1999, he Publishing, 2004), all cowritten with NYU the founder and was the director of the Center for Advanced School of Law Professor Samuel Estreicher. director of the Olin Macroeconomic Policy at the University of He has contributed articles to the Boston Center for Law and Wisconsin-Milwaukee. College Law Review, the George Washing- Economics. In Fall After graduating from the University of ton Law Review, 2006, Ben-Shahar Michigan Law School, he clerked for Judge the Michigan Law will visit NYU to Robert H. Henry of the U.S. Court of Appeals Review, the San teach contract law. for the Tenth Circuit. Buchanan has pub- Diego Law Review, He will also pursue lished articles in the Journal of Economic the University of his research inter- Issues, the Tax Law Review, Tax Notes and Pennsylvania Law ests, which include the Virginia Tax Review. He was previously Review, the Virginia Omri Ben-Shahar precontractual lia- in residence at NYU in Spring 2006. Law Review, the bility, products liability in pharmaceuticals William and Mary and the legal limits of bargaining power. Bruce Green Law Review and the Michael Harper Ben-Shahar’s work in contract law An expert in the areas of legal ethics, crimi- Yale Law Journal. has been published in the American Law nal law and criminal procedure, Bruce Harper received his A.B. in economics and Economics Review, the Journal of Law, Green is the Louis Stein Professor of Law at from Harvard University and his J.D. from Economics and Organization, the Journal of the Fordham University School of Law, and Harvard Law School, both magna cum Legal Studies, the University of Chicago Law the director of its Louis Stein Center for Law laude. He clerked for Judge J. Skelly Wright Review and the Yale Law Journal, among and Ethics. Green will teach a course in proof the U.S. Court of Appeals for the District other publications. He is currently working fessional responsibility and a seminar on of Columbia Circuit before working as a on a book, Contracts without Consent, and ethics in criminal advocacy in Spring 2007. staff attorney and director of the student his article of the same name was the subject After earning his A.B. in English from internship program at the Center for Law of a recent symposium published by the Princeton University and his J.D. from and Social Policy in Washington, D.C. University of Pennsylvania Law Review. Columbia Law School, Green clerked for A Yankees fan, Harper plans to take Before joining the faculty at Michigan, Judge James L. advantage of his time at NYU to attend a few Ben-Shahar taught law and economics at Oakes of the United games. How has he managed to live so long Tel Aviv University, was a research fellow States Court of in Boston as a partisan of a New York team? at the Israel Democracy Institute, served as Appeals for the Sec- Says Harper: “I am a natural dissident…. I a panel member of Israel’s Antitrust Court ond Circuit and for would not have survived long in a totalitar- and clerked for the Supreme Court of Israel. U.S. Supreme Court ian society, but I am thick-skinned enough Justice Thurgood to survive in Boston.” Neil Buchanan Marshall. For four “I had always felt like a round interdisciplin- years he worked Robert A. Kagan ary peg in a square economics hole, and I saw as an assistant U.S. Robert A. Kagan, a professor of political sci- Bruce Green that the interests and methods of legal schol- attorney for the ence and the Emanuel S. Heller Professor of ars were very well suited to my own scholarly Southern District of New York. While teach- Law at the University of California, Berkeley, approach,” says Neil ing at Fordham, Green has served as a con- will teach a class, The Administrative and Buchanan, a long-time sultant and special investigator for the New Regulatory State, and a graduate semi- economics professor York State Commission on Government nar, The Social-Scientific Study of Legal who became a lawyer Integrity, as associate counsel to the Iran/ Institutions, while visiting in Fall 2006. He in 2002 and has taught Contra prosecutor and as a member of the also plans to work on a collaborative empir- at the Rutgers School New York City Conflicts of Interest Board. ical study, funded by the Environmental of Law-Newark since Green has published more than 50 arti- Protection Agency, of emissions control for 2003. As a visitor to the cles in such publications as the Columbia diesel vehicles. Law School in the 2006- Law Review, the George Washington Law Kagan, who earned an A.B. from Har- 07 academic year, he Review, the Georgetown Law Journal and vard University, a J.D. from Columbia Law Neil Buchanan will teach two classes— the Vanderbilt Law Review. School and a Ph.D. in sociology from Yale Contracts for International LL.M. Students University, is a former director of Berkeley’s and Income Taxation—and two seminars, Michael Harper Center for the Study of Law and Society. A “Distributive Justice and the Law” and “What A professor of law and Barreca Labor fellow of the American Academy of Arts and Do We Owe Future Generations?” Relations Scholar at Boston University Sciences, Kagan has written or cowritten five After earning an A.B. in economics from School of Law, Michael Harper teaches books, including Adversarial Legalism and Vassar College, Buchanan received an A.M. labor law, employment law, employment American Government: The American Way of and a Ph.D. in economics from Harvard discrimination law, administrative law, Law (Harvard University Press, 2001). He has University, where he was a National Science sports law and entertainment law. In Fall coedited seven other books, edited or coed- Foundation Graduate Fellow. Buchanan 2006, he will visit NYU to teach a seminar ited two journal symposia and published

58 THE LAW SCHOOL AUTUMN 2006 articles in such journals as the Law & Society Distinguished Visiting Chair at the Law tion to Intellectual Property, Intellectual Review, the Michigan Law Review and the Department of the European University Property in Cyberspace, Digital Copyright Stanford Law Review. Institute in Florence, Italy, in 2003 and has and Intellectual Property Theory. At Berkeley, Kagan has taught numerous been a visiting professor at the University of In addition to teaching at UT, Reese has courses, including Responses to Injustice: Paris-I (Panthéon-Sorbonne), the Institut been a visiting professor at Stanford Law Legal Claims and Regulation; Environmen- d’Etudes Politiques de Paris, the University School and, through tal Politics, Policy and Law; and Law, Society of Geneva and the University of Lausanne. the Joint Interna- and Politics. Kagan, tional IP Law Sum- who began his Christopher Leslie mer Program, at the career as a private A specialist in antitrust and business law, University of Victoria practitioner, served Christopher Leslie, a professor at the Illi- and Oxford University. as assistant to the nois Institute of Technology’s Chicago-Kent Reese is the coauthor chairman of the College of Law, will visit NYU in Spring 2007. of Internet Commerce: Federal Price Com- He will teach a class on antitrust law and a The Emerging Legal mission in Wash- seminar on antitrust law and intellectual Framework (Founda- R. Anthony Reese ington, D.C., in 1971. property rights while working on antitrust tion Press, 2006) and is More recently, he research involving “the intersection of anti- currently collaborating on the forthcoming Robert A. Kagan has been a visitor at trust law and intellectual property rights, Copyright, Patent, Trademark and Related the Center for Advanced Study in the Behav- including how antitrust law should address State Doctrines. He has published articles ioral Sciences, the Netherlands Institute for invalid patents.” in the Berkeley Technology Law Journal, the Advanced Study, Ohio State University and Leslie, who has been a visiting professor Boston College Law Review and the Stanford Oxford University. at Stanford Law School and the University Law Review, among other publications. of Texas School of Law, earned a B.A. in eco- Reese received his B.A. in Russian lan- Mitchel Lasser nomics and political science from the Uni- guage and literature from Yale University in “It is impossible to come to NYU as a com- versity of California, Los Angeles; an M.P.P. in 1986. From 1986 to 1988, he taught English paratist and not be excited about working public policy from Harvard University’s Ken- for the Yale-China Assocation in Tianjin and with the remarkable scholars here,” says nedy School of Government, where his con- Hunan. Reese earned his J.D. from Stanford Mitchel Lasser, a professor at Cornell Law centration was in science and technology Law School in 1995, and subsequently School specializing in European Union public policy; and clerked for Judge Betty B. Fletcher of the law, comparative constitutional law and a J.D. from the Uni- U.S. Court of Appeals for the Ninth Circuit. judicial process. “The strength and depth of versity of California, He worked as an associate at Morrison & the community is truly unique.” Lasser, who Berkeley. He clerked Foerster in San Francisco from 1996 to 1998 serves at Cornell Law School as the director for Judge Diarmuid and, since 1999, has served as special coun- of graduate studies and as codirector of the O’Scannlain of the sel for the firm. Cornell Summer Institute of International U.S. Court of Appeals and Comparative Law in Paris, will visit for the Ninth Circuit, Catherine Sharkey NYU in Fall 2006. and worked as a lit- Catherine Sharkey is an associate profes- He is currently at work on Comparative igation associate at sor at Columbia Law School specializing Christopher Leslie Law in Flux: The Judiciary at the Intersection Pillsbury Madison in torts, punitive damages, class actions, of Legal Systems, a monograph. His previ- & Sutro and Heller Ehrman, both San Fran- remedies, product liability and empirical ous monograph, Judicial Deliberations: A cisco firms. legal studies. She has taught courses such Comparative Analysis of Judicial Transpar- The coauthor of Gilbert Law Summaries: as Torts, Modern Remedies, Products Lia- ency and Legitimacy, was published by Antitrust (West Group, 2004), Leslie has bility, and Tort Reform and the American Oxford University Press in 2004. He has also also published articles in numerous publi- Tort System. Sharkey published articles in the American Journal cations, including the Harvard Civil Rights- will make her first visit of Comparative Law, Archives de philoso- Civil Liberties Law Review, the Ohio State to the NYU School of phie du droit, the Cornell Law Review, the Law Journal, the Texas Law Review, the Law in Fall 2006. Harvard Law Review, UCLA Law Review and the Wisconsin Law Sharkey earned Revue trimestrielle de Review. He currently serves on the executive a B.A. in economics droit civil and the Yale committee of the Section on Antitrust Law from Yale University, Law Journal. and Trade Regulation of the Association of an M.Sc. in econom- After earning a B.A. American Law Schools. ics for development in French literature from Oxford Univer- Catherine Sharkey from Yale University, R. Anthony Reese sity and a J.D. from Lasser went on to Intellectual property specialist R. Anthony Yale Law School, where she served as exec- receive a J.D. from Reese will visit NYU in the 2006-07 aca- utive editor of the Yale Law Journal. She was Harvard Law School, demic year; he is the Thomas W. Gregory a Rhodes Scholar from 1992 to 1994 and a Mitchel Lasser an M.A. from Yale’s Professor of Law at the University of Texas at Temple Bar Scholar in 1999. Department of French Literature and a Ph.D. Austin, and focuses on copyright, trademark She clerked for Judge Guido Calabresi from Yale’s Department of Comparative and Internet aspects of intellectual property of the U.S. Court of Appeals for the Second Literature. As a Fulbright Scholar in France law, as well as Russian legal history. At the Circuit and Justice David H. Souter of the in 1993-94, Lasser researched the French University of Texas School of Law, Reese U.S. Supreme Court. She later worked as a civil judicial system. He was the Fulbright teaches Copyright, Trademark, Introduc- Supreme Court and appellate litigation asso-

AUTUMN 2006 THE LAW SCHOOL 59 FACULTY FOCUS

ciate at the law firm of Mayer, Brown, Rowe European Law, the University of Chicago sciences and a Ph.D. in economics from the & Maw in New York City from 2000 to 2002. Law Review and the Yale Law Journal. California Institute of Technology and a J.D. Sharkey joined the Columbia Law School from the University of Southern California faculty in 2003 after a year as a John M. Olin Kenji Yoshino Law School. She was a senior tax consultant Jr. Fellow at its Center for Law and Economic Kenji Yoshino, who will visit in the 2006-07 with Ernst & Young for four years. Studies. She has served as a cochair of the academic year, is a professor of law and the She has published articles in the Faculty Clerkships and Judicial Relations former deputy dean of intellectual life at American Economic Review, the Virginia Committee and as a member of the Faculty Yale Law School. He specializes in constitu- Law Review and Appointments Committee. tional law, antidiscrimination law, law and the Yale Journal of Sharkey is a senior editor of the Journal literature, and Japanese law and society. Health Policy, Law of Tort Law, and has published articles in the Besides teaching a freshman hon- and Ethics. She New York University Law Review, the UCLA ors seminar at NYU with Professor Carol is working on a Law Review and the Yale Law Journal. Gilligan, Yoshino plans to pursue “two project about jury During her undergraduate years at major projects: one on the relationship verdicts and post- Yale University, Sharkey also excelled ath- between equality and liberty in American trial outcomes, and letically: She played on the all-American constitutional law, and one on the role a project on the women’s lacrosse second team and was a of utopian imagination in law.” He adds, legal implications Kathryn Zeiler finalist for the National Collegiate Athletic “Given the comparative dimension of some of “willingness to Association’s Woman of the Year Award. of my work, the cosmopolitan nature of the pay/willingness to accept gaps” in light of school and city are also a draw.” recent findings concerning endowment James Whitman After receiving his J.D. from Yale Law effect theory. James Whitman, the Ford Foundation Pro- School in 1996, where he was the articles edi- fessor of Comparative and Foreign Law at tor of the Yale Law Journal, Yoshino clerked Yale Law School, will teach Comparative for Judge Guido Returning Visiting Law during his Fall 2006 visit. He will also Calabresi of the U.S. Faculty work on an article concerning the nature of Court of Appeals for “consumerism in global context.” the Second Circuit. The Gruss Visiting Professor of Law, Before joining the Yale Law School fac- He earned a B.A. in Moshe Halbertal is a professor at ulty in 1994, Whitman was an associate pro- English and Ameri- Hebrew University of Jerusalem, and a fel- fessor at Stanford Law School. He has also can literature and low at the Hartman been a Robbins Senior Fellow at the Boalt language from Har- Institute of Advanced Hall School of Law; a Jean Monnet Fellow vard University in Jewish Studies. His at the European University Institute in 1991 and, in 1993, an scholarship focuses Kenji Yoshino Florence, Italy; a Berlin Prize Fellow at the M.Sc. in manage- on hermeneutics and American Academy in Berlin; and a fellow ment studies from Oxford University, where the interpretation of at the Max Planck Institute for European he was a Rhodes Scholar. Jewish law. Much of Legal History in Frankfurt. Yoshino, the author of Covering: The his scholarship is con- Whitman received a B.A. in comparative Hidden Assault on Our Civil Rights (Random cerned with the ques- literature summa cum laude from Yale Uni- House, 2006), has published articles in the tion, “What can we Moshe Halbertal versity, an M.A. in European history from New York Times, the Stanford Law Review learn from Jewish law Columbia University, a Ph.D. in intellectual and the Yale Law Journal. about the concept of law?” Halbertal, who history from the University of Chicago and has also served as the Gruss Professor at the a J.D. from Yale Law School, where he was Kathryn Zeiler Harvard and University of Pennsylvania senior editor of the An associate professor of law at George- law schools, received the Michael Bruno Yale Law Journal. He town University Law Center, Kathryn Award, given to pioneering Israeli scholars later clerked for Judge Zeiler is also the codirector of George- under the age of 50, in 1999. His books have Ralph K. Winter of the town’s Law and Economics Workshop been published to critical acclaim both in U.S. Court of Appeals Series. During her visit to NYU in the Israel and the United States. for the Second Cir- 2006-07 academic year, Zeiler plans to Arthur Miller is nationally recognized cuit. Whitman’s books collaborate with Professor Kevin McCabe, for his work on court procedure; he has include The Legacy of an expert in experimental economics written or cowritten more than 40 books Roman Law in the Ger- at George Mason University, on several on the subject. As the Bruce Bromley man Romantic Era: economics experiments. One concerns Professor of Law James Whitman Historical Vision and the ways in which third-party insurance at Harvard Law Legal Change (Princeton University Press, affects both compensation for injuries and School, he has also 1990), Harsh Justice: Criminal Punishment the “incentives for potential defendants to gained acclaim for and the Widening Divide Between America take efficient precautions.” Another will his work on the and Europe (Oxford University Press, 2003) study the influence of legal reform on the right of privacy. and The Origins of Reasonable Doubt: Theo- “behavior of market actors before damages Miller, who will be logical Roots of the Criminal Trial (Yale Uni- are incurred by potential plaintiffs.” teaching the first- versity Press, forthcoming). Whitman has Zeiler earned her B.S. in business from year course Proce- also published articles in numerous jour- Indiana University, an M.S. in taxation from dure this fall, has Arthur Miller nals, including the Columbia Journal of Golden Gate University, an M.S. in social also made a name

60 THE LAW SCHOOL AUTUMN 2006 for himself as a television host. He had his Faculty in Estate Transactions: Cases and Materials on own show, Miller’s Court, for eight years Land Transfer, Development and Finance and has moderated numerous PBS series. Residence (Foundation Press, Miller has an active law practice; he has 2002), both of which argued cases in all of the 13 U.S. Circuit Bernard Grofman he coauthored. Korn- Courts of Appeals, as well as in the U.S. A political science and social psychology gold has published Supreme Court. He currently serves as an professor at the University of California, articles in the Cornell adviser to the American Law Institute’s Irvine, and an adjunct professor of econom- Journal of Planning project on Principles of the Law of Aggre- ics, Bernard Grofman plans to pursue sev- and Urban Issues, the gate Litigation. Miller previously visited eral research projects during his Fall 2006 Real Estate Law Jour- NYU in the fall of 2005. visit to NYU. nal and the Texas Law In the fall of 2006, Daniel Rubinfeld, “Some deal with the interactions between Review. He received Gerald Korngold the Robert L. Bridges Professor of Law and law and social science in defining standards a B.A. in history and professor of economics at the University of for equal protection of racial and political a J.D. from the University of Pennsylvania, California, Berke- minorities,” he says, “and some with ways where he edited the University of Pennsyl- ley, will visit NYU to make use of mathematical social choice vania Law Review. for the fifth time. theory to model the evolution of legal juris- Korngold anticipates a fruitful year. “NYU He will teach quan- prudence.” will provide me with a unique opportunity,” titative methods Grofman earned a B.S. in mathematics he says, “since I am interested in interna- and antitrust law from the University of Chicago, and an M.A. tional, interdisciplinary and theoretical as and economics. and Ph.D. in political science from the same well as ‘real world’ issues and approaches.” A leading law institution. He is the coauthor of Minor- and economics ity Representation and the Quest for Voting Stephen Macedo scholar, Rubinfeld Equality (Cambridge University Press, 1992), Stephen Macedo is the Laurance S. Rock- Daniel Rubinfeld has written arti- the editor of Political Gerrymandering and efeller Professor of Politics and the Univer- cles on antitrust and competition policy, the Courts (Agathon Press, 1990) and the sity Center for Human Values at Princeton law and economics, voting rights and fed- coeditor of Quiet Revolution in the South: University, as well as the center’s director. eralism. He has also cowritten two eco- The Impact of the Voting Rights Act, 1965-1990 Macedo, who will be in residence at NYU in nomics textbooks with M.I.T. professor (Princeton University Press, 1994), which 2006-07, plans to complete a book on “the Robert Pindyck, Microeconomics (Mac- won the Richard Fenno Prize of the Legisla- moral significance of the American national Millan, 1989) and Econometric Models and tive Studies Section of the American Political community and its future,” in addition to a Economic Forecasts (McGraw-Hill, 1976). Science Association. piece on the effects of a country’s partici- Rubinfeld is a former deputy assistant He has published pation in international organizations on its attorney general for the Antitrust Divi- articles in the Amer- domestic politics (the latter with Princeton sion of the U.S. Department of Justice. ican Journal of Polit- Professor Robert Keohane). Geoffrey Stone, who will visit in Fall ical Science, the Macedo is the coauthor of Democracy 2006, is the Harry Kalven Jr. Distinguished Journal of Law and at Risk: How Political Choices Undermine Service Professor of Law at the University Politics, Legislative Citizen Participation, and What We Can Do of Chicago Law School. A graduate of the Studies Quarterly About It (Brookings Institution Press, 2005) Wharton School of Business, Stone has a and the Texas Law and the author of Diversity and Distrust: J.D. from the University of Chicago. After Review, among oth- Civic Education in a Multicultural Democ- Bernard Grofman clerking for Judge J. Skelly Wright of the ers. Grofman has racy (Harvard University Press, 2000) and U.S. Court of Appeals been an expert witness in redistricting and The New Right v. the Constitution (Cato Insti- for the District of voting rights cases in more than a dozen tute, 1986). Columbia and Justice states, and his work on voting rights has He received his B.A. from the College William J. Brennan Jr. been cited in 11 U.S. Supreme Court cases. of William and Mary; master’s degrees of the U.S. Supreme from the London School of Economics and Court, he returned Gerald Korngold Oxford University; to the University of Shortly after finishing a nine-year stint and an M.A. and Chicago Law School as the dean of the Case Western Reserve Ph.D. from Prince- as a professor in 1973. University School of Law, Gerald Korngold ton. As the found- He served as dean will visit NYU for the 2006-07 academic year. ing director of the Geoffrey Stone from 1987 to 1993 and A law professor at Case since 1987, Korngold Program in Law as provost of the University of Chicago became the Everett D. and Eugenia S. and Public Affairs at from 1993 to 2002. A preeminent First McCurdy Professor of Law at the school Princeton and chair Amendment scholar, Stone wrote about in 1994, and he also served as the interim of the Princeton the effects of war on the First Amendment dean of Case’s Weatherhead School of Project on Univer- Stephen Macedo in Perilous Times (W.W. Norton, 2004), Management in 2004. sal Jurisdiction from which received the L.A. Times Book Award Korngold, who specializes in property 2000 to 2003, Macedo led a project to study and the Robert F. Kennedy National Book and real estate law, plans to spend time at universal jurisdiction and helped produce Award. During his visit, Stone will teach NYU working on articles and on new edi- the Princeton Principles on Universal Juris- First Amendment Rights of Expression tions of the books Cases and Text on Prop- diction (Princeton University Publications, and Association. erty (Aspen Publishing, 2004) and Real 2001), which was disseminated by the U.N.

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Jack Mintz Scheffler, who received his A.B. from law, constitutional law, After seven years as president and chief Harvard University and a Ph.D. from contracts, criminal law, executive officer of the C.D. Howe Institute, Princeton University, won Guggenheim and health law, jurispru- an independent policy National Endowment for the Humanities dence, labor law, pat- think tank in Toronto, Fellowships, a University of California ents, property and torts, Jack M. Mintz will be President’s Research Fellowship in the to name a few subjects. in residence at NYU in Humanities and a visiting fellowship at Epstein has been Spring 2007. He plans Oxford University’s All Souls College. In the Peter and Kirstin to return to his own 2004 he was elected a fellow of the American Bedford Senior Fellow research, including a Academy of Arts and Sciences. Scheffler at Stanford Universi- Richard Epstein book on fiscal federal- serves as the chair of the advisory board ty’s Hoover Institution ism in Canada. of the Kadish Center for Morality, Law and on War, Revolution and Peace since 2000. A Mintz is a pro- Public Affairs. former editor of the Journal of Legal Stud- Jack Mintz fessor of business ies and the Journal of Law and Economics, economics at the University of Toronto’s Eugene Volokh he is now a director of Chicago’s Olin Pro- Joseph L. Rotman School of Management, Eugene Volokh, the Gary T. Schwartz Pro- gram in Law and Economics, which applies as well as codirector of the International fessor of Law at the University of Califor- economic research findings to the analysis Tax Program at the university’s Institute nia, Los Angeles, earned a B.S. in math and of legal problems. His most recent book is of International Business. He is the computer science from UCLA at age 15. He How Progressives Rewrote the Constitution author of Most Favored Nation: Building a graduated first in (Cato, 2006). Framework for Smart Economic Policy (C.D. his class from UCLA The leading scholar of violence risk Howe Institute, 2001), the coauthor of School of Law at 24 assessment, John Monahan is the John S. Taxation of Virgin and Recycled Material: and joined the fac- Shannon Distinguished Professor of Law Analysis and Policy (Canadian Council ulty two years later. and a professor of psychology and psychi- of Ministers of Environment, 1995) and He has taught free atric medicine at the University of Virginia Dividing the Spoils: The Federal-Provincial speech law, copy- School of Law. While visiting in Fall 2006, Allocation of Taxing Powers (C.D. Howe right law, the law he plans to study the use of social science Institute, 1992), and the founding editor- of government and research by courts, and the legal regulation in-chief of International Tax and Public religion, criminal of treatment for mental disorders. Eugene Volokh Finance. In 2005 the British magazine Tax law and a seminar Monahan, who visited the Law School Business named him the 27th most influ- on firearms regulation. in 2000 and 2004, has also been a visiting ential tax expert in the world. During his Spring 2007 visit to NYU, he scholar at the American Academy in Rome, Mintz received a B.A. in economics from will deliver the second annual Friedrich Harvard Law School and All Souls College, the University of Alberta, an M.A. in eco- A. von Hayek Lecture in Law. A top con- Oxford. He has nomics from Queen’s University in Kingston, stitutional scholar, Volokh has written The been a Guggenheim Ontario and a Ph.D. from the University of First Amendment and Related Statutes Fellow, and has Essex in Colchester, England. (Foundation Press, 2005), The Religion held fellowships Clauses and Related Statutes (Foundation at the Center for Samuel Scheffler Press, 2005) and Academic Legal Writing Advanced Study in Samuel Scheffler, the Class of 1941 World (Foundation Press, 2004). He has published the Behavioral Sci- War II Memorial Professor of Philosophy nearly 50 law review articles and more than ences and at Stan- and Law at the Uni- 75 op-ed pieces in numerous publications. ford Law School. versity of California, Volokh clerked for Judge Alex Kozinski The founding presi- John Monahan Berkeley, teaches in of the U.S. Court of Appeals for the Ninth dent of the Ameri- both the philosophy Circuit and Justice Sandra Day O’Connor can Psychological Association’s Division of department and the of the U.S. Supreme Court. In 2005, the Los Psychology and Law, Monahan is also a two- Jurisprudence and Angeles and San Francisco Daily Journals time winner of the Manfred Guttmacher Social Policy Pro- named Volokh one of the top 100 lawyers in Award of the American Psychiatric Associa- gram of the Boalt California. Volokh is an academic affiliate tion for his books The Clinical Prediction of Hall School of Law. with Mayer, Brown, Rowe & Maw. Violent Behavior (1982) and Rethinking Risk During his visit Assessment (2002). Samuel Scheffler in the coming aca- Gerald Rosenfeld, the CEO of Roth- demic year, Scheffler plans to work on a Returning Faculty schild North America, new book. He has already published The in Residence will be in residence in Rejection of Consequentialism (Clarendon the coming academic Press, 1982), Human Morality (Oxford Richard Epstein, who will make his sec- year as a director of the University Press, 1992) and Boundaries and ond visit to campus in Fall 2006, is known for School of Law’s Lead- Allegiances (Oxford University Press, 2001). his research and writings on a broad range ership Program in Law He has written articles on topics such as of constitutional, economic, historical and and Business. Last year terrorism, egalitarian liberalism, the value philosophical subjects. At the University of he was a senior fellow of equality, and morality and self-interest, Chicago Law School, where he is the James at the NYU Pollack and is an advisory editor of Philosophy and Parker Hall Distinguished Service Profes- Center for Law and Gerald Rosenfeld Public Affairs. sor of Law, he has taught communications Business. Rosenfeld

62 THE LAW SCHOOL AUTUMN 2006 will also teach Professional Responsibility American national identity and domestic was a professor of law at the University and Ethics for both School of Law and Stern debates over international law. of Cape Town and the University of the School of Business students. An investment Cohen received his J.D. magna cum Witwatersrand, as well as director of banker for more than 25 years, Rosenfeld laude from NYU in 2003. A member of the the Centre for Applied Legal Studies at has been an adjunct professor of finance Order of the Coif, Cohen was awarded the Witwatersrand. He continues to teach tax, at Stern since 1992. He has a B.C.E. in civil Maurice Goodman competition and constitutional law as an engineering from the City College of New Memorial Prize for honorary professor at the University of York, a master’s in engineering mechanics outstanding schol- Cape Town. Davis is cowriting a book on from the City University of New York and arship and char- lawyering in South Africa and the broader a Ph.D. in applied mathematics from NYU. acter. He received lessons in terms of global human rights. Rosenfeld is a fellow of the American Acad- his B.A. in history emy of Arts and Sciences. and international Richard Goldstone studies from Yale Richard Goldstone retired in 2003 from the University, where Constitutional Court of South Africa and is Alexander Fellow he was awarded chancellor of the University of Witwaters Harlan Grant Cohen 2006-07 the Sturley Prize rand. From 1994 to 1996, Goldstone was in English History and the International chief prosecutor for the International Crim- Jeanne Fromer Security Studies Senior Essay Prize in inal Tribunals for the former Yugoslavia and When she visits NYU in the 2006-07 aca- 1998. He received an M.A. in history from Rwanda. He has also served as cochairman demic year, Alexander Fellow Jeanne Yale in 2000. Cohen has also clerked for of the Independent International Commis- Fromer plans to “explore informational Judge Wilfred Feinberg of the U.S. Court of sion on Kosovo, chairman of the Commis- aspects of patent law and to begin con- Appeals for the Second Circuit and worked sion of Inquiry Regarding Public Violence structing a theory as a litigation associate at Cleary Gottlieb and Intimidation, and president of the of statutory design Steen & Hamilton. National Institute for Crime Prevention based on the informa- Cohen has published pieces in the and the Rehabilitation of Offenders. Judge tional obligation that Berkeley Journal of International Law, the Goldstone has received many human rights statutes convey their New York University Law Review and the awards and has lectured on human rights meaning to the pub- Yale Journal of International Law. and South African constitutional issues at lic.” Fromer received universities around the world. He was a a B.A. in computer global visiting professor of law in 2003-04. science summa cum Global Visiting laude from Columbia Leslie Green Jeanne Fromer Professors of Law University’s Barnard Leslie Green is a professor of law and phi- College and an S.M. in electrical engineer- Victor Ferreres Comella losophy at Osgoode Hall Law School at ing and computer science from the Massa- Victor Ferreres Comella is a professor of York University in Toronto. He is a regular chusetts Institute of Technology. At M.I.T. constitutional law at the Pompeu Fabra visiting professor at the University of Texas she was a National Science Foundation University in Barcelona, Spain. He graduated at Austin School of Law. A former fellow of Graduate Research Fellow. from the University of Barcelona, Faculty of Oxford’s Lincoln College, he has also taught Fromer earned a J.D. magna cum laude Law, and holds a doctorate from Yale Law at Queen’s University in Ontario and at from Harvard Law School, where she was School. He has been a visiting professor at the Boalt Hall School of Law. Green works the articles and commentaries editor of the law school of Puerto Rico University and mainly in jurisprudence and in related areas the Harvard Law Review and the editor the European Humanities Institute in Minsk, of political philosophy, as well as in sexuality and symposium articles coordinator of the Belarus. A book based on his doctoral thesis and the law. He is the author of The Authority Harvard Journal of Law and Technology. won the Francisco Tomás y Valiente Prize in of the State (Oxford University Press, 1988) Fromer was a fellow at Yale Law School with Constitutional Law, awarded by the Spanish and coeditor of Law and the Community: Professor Jack Balkin’s Information Society Constitutional Court. The End of Individualism (Carswell, 1989). Project, and has clerked for Judge Robert D. Sack of the U.S. Court of Appeals for the Dennis Davis Gérard Hertig Second Circuit and Justice David H. Souter Dennis Davis is a judge of the High Court Gérard Hertig is a professor of law at the of the U.S. Supreme Court. of South Africa and judge president of Swiss Federal Institute of Technology Zurich, South Africa’s Competition Appeal Court. where he oversees the postgraduate intel- Furman Academic Before his appointment to the bench, Davis lectual property program. He was previously Fellow 2006-07

Harlan Grant Cohen Harlan Grant Cohen returns for a second year as a Furman Fellow and as coordinator of the Furman Program. His scholarship focuses on the history and theory of international law. His current projects include an attempt to rethink the sources of international law and an exploration of the relationship between Victor Ferreres Comella Dennis Davis Richard Goldstone Leslie Green

AUTUMN 2006 THE LAW SCHOOL 63 FACULTY FOCUS

include “Impact of E-Commerce on Allo- cation of Tax Revenue Between Developed and Developing Countries,” first published in Tax Notes International and updated in the Journal of Korean Law; “Law and Taxa- tion of Corporate Merger and Division in Korea,” in the Journal of Korean Law; “Instability of the Concept of Dependent Agent Permanent Establishment”; and “A Gérard Hertig Wolfgang Kerber Martti Koskenniemi Annette Kur Strategic Approach for Capital Importing Countries Under the Arm’s Length’s Prin- a professor of administrative law and direc- Gentle Civilizer of Nations: The Rise and Fall ciple,” in Tax Notes. tor of the Centre d’Etudes Juridiques Euro- of International Law 1870-1960 (Cambridge péennes at the University of Geneva Law University Press, 2001) are leading works in Ziba Mir-Hosseini School. His recent publications include “An the theory and history of international law. Ziba Mir-Hosseini is a research associate of Agenda for Reform: Company and Takeover Koskenniemi is a codirector of the Institute the London Middle East Institute and the Law in Europe” with Joseph A. McCahery in for International Law and Justice’s Program Center for Islamic and Middle Eastern Law, Reforming Company and Takeover Law in in the History and Theory of International both at the School of Oriental and African Europe (Oxford University Press, 2004); “On- Law at New York University. Studies at University of London. An anthro- Going Board Reforms: One Size Fits All and pologist by training, Mir-Hosseini is a free- Regulatory Capture” in the Oxford Review Annette Kur lance researcher and consultant with inter- of Economic Policy; The Anatomy of Corpo- Annette Kur is a senior member of the ests in law, religion and gender. rate Law, A Comparative and Functional research staff and unit head at the Max She is the author of two well-received Approach, with Reinier Kraakman, et al. Planck Institute for Intellectual Property, books; her new one, Islam and Democracy (Oxford University Press, 2004); and “Four Competition and Tax Law in Munich, and in Iran: Eshkevari and the Quest for Reform Predictions about the Future of E.U. Securi- an associate professor at the University (I.B. Tauris, 2006), cowritten with Richard ties Regulation” with Ruben Lee in the Jour- of Stockholm. She serves as an execu- Tapper, deals with the reform movement nal of Corporate Law Studies. tive committee member and president- in Iran and Islamic family law and gender elect of the Association for Teaching and issues. Mir-Hosseini has also codirected Wolfgang Kerber Research in Intellectual Property, and (with Kim Longinotto) two award-winning Wolfgang Kerber is a professor of economics as a representative of the Max Planck feature-length documentary films on con- at Philipps University of Marburg, Germany. Institute in the World Intellectual Property temporary issues in Iran: Divorce Iranian In recent years, his main fields of research Organization’s Standing Committee on the Style (1998) and Runaway (2001). have been European and international Law of Trademarks, Industrial Designs and competition policy, and multilevel legal Geographical Indications. She has lectured Carlos Rosenkrantz systems and regulatory competition. Kerber on trademark law, intellectual property law Carlos Rosenkrantz is a professor at the has been director of the Walter Eucken and private international law at Munich University of Palermo Law School, Buenos Institute in Freiburg and professor of eco- University, the Munich Intellectual Property Aires, Argentina, and a visiting professor nomics at the Ruhr-University Bochum. Law Center and the Swedish School of at the Pompeu Fabra University in Barce- His most recent publications include arti- Economics, Helsinki. Kur is a member of lona, Spain. He also is affiliated with the cles in the European Journal of Law and the foreign faculty at Santa Clara University Centro de Estudios Institucionales, a legal Economics, the Journal of Competition Law and the author of books and numerous and political policy institute. For more than and Economics and the Journal of European articles in the fields of national, European 10 years, Rosenkrantz has been integrally Public Policy and World Competition. and international trademark, international involved in the Argentine constitutional jurisdiction, and unfair competition and reform process and the reform of private Martti Koskenniemi industrial design law. law and private procedure. In the 1980s, Martti Koskenniemi, a member of the United he served on the commission headed by Nations’ International Law Commission, is a Chang Hee Lee the late Carlos Nino, the chief architect of professor at the Academy of Finland. Before Chang Hee Lee is a professor of law at Seoul constitutional reform in Argentina. Rosen- taking a position as a professor of inter- National University, where he has taught krantz also served as chief adviser to former national law at the University of Helsinki taxation since 1997. He has also taught President Alfonsin during the Argentine in 1995, he was the counselor for legal taxation as a visiting professor of law at Constitutional Convention in 1994. ■ affairs at the Ministry for Foreign Affairs Harvard University of Finland. He has represented Finland in and the University numerous international bodies, among of Tokyo. He has them, the U.N. General Assembly and the published a trea- Security Council. He also litigated at the tise of more than International Court of Justice. Koskenniemi a thousand pages is a highly respected international law on Korean tax law, scholar. He has written many publications; and several dozen among them From Apology to Utopia: The articles. His rep- Structure of International Legal Argument resentative publi- (Cambridge University Press, 2006) and The cations in English Chang Hee Lee Ziba Mir-Hosseini Carlos Rosenkrantz

64 THE LAW SCHOOL AUTUMN 2006 the amount of in-home printing she will Faculty Scholarship choose to do if she has a printer at home, thus underestimating the value to her of Each year, we highlight some of our faculty’s notable owning a printer. Such underestimation of value and of use will also lead the con- scholarship. Here we feature four works that examine sumer to underestimate the number of ink cartridges she will purchase over the life of topics as diverse as aggressive sales tactics and the the printer. For instance, the consumer may estimate that she will need 50 ink cartridges, development of constitutional law in early America. when in fact she will need 100 cartridges. The argument is that under these assumptions a seller offering printers only will find Bundling and Consumer it hard to compete with a seller who bundles printers and ink, that is, who, through tech- Misperception nological compatibility constraints and/or intellectual property protection, forces con- oren bar-gill explains how competitive bundling sumers who bought its printers to also pur- in response to consumer misperception can have chase its ink cartridges. The competitive advantage of the bun- far-reaching economic effects. dling seller can be explained as follows. In a competitive market a seller offering only printers will have to price its printers at the marginal cost of a printer, say $1,000. Consumers who buy printers from this seller will know that they will have to buy their ink from another seller at the marginal cost of ink, say $10. Accordingly, the total cost of printing perceived by a consumer purchasing a printer from the printer-only seller is $1,500 (i.e., $1,000 + 50 × $10). (The actual, as opposed to perceived, total cost of printing is $1,000 + 100 × $10 = $2,000.) Now consider a bundling seller. This seller may offer the same (or equivalent) printer at a below-cost price of $500 and cover its losses by charging $15 per ink cartridge. The total cost of printing perceived by a consumer purchasing a printer from the bundling seller is $1,250 (= $500 + 50 × $15). (The actual, as opposed to perceived, total cost of printing is $500 + 100 × $15 = $2,000, as in the no-bundling case. In a competi- We all like to think of ourselves as smart shop- action taken by sellers. It can be instigated tive market, the total price collected by the pers, but consumers often misjudge the true by sellers. And it can be mitigated by sellers. bundling seller cannot exceed the total cost, value of products and services they buy. As This essay takes consumer mispercep- $2,000 [= $1,000 cost of a printer + 100 ink Oren Bar-Gill points out in this excerpt of his tion as given and studies one common strat- cartridges × $10 cost of an ink cartridge].) essay “Bundling and Consumer Mispercep- egy employed by sellers facing such misper- Given consumer underestimation of ink tion,” published in the University of Chicago ception: the bundling strategy. “Bundling” usage, sellers in a competitive market must Law Review (Volume 73, Winter 2006), sellers in this essay is used in a somewhat broader bundle printers and ink. can take advantage of this confusion by pack- sense than is conventional in the antitrust Overestimation of value and of use can aging items of different value together to make and industrial organization literatures. I similarly induce a bundling response by them more attractive to consumers. The effect define the bundling of products A and B sellers. Consider the health club market. of such strategic bundling can be beneficial or to include any case where a consumer Sellers can charge a per-visit fee. Sellers can detrimental to consumers and to state policies, purchasing product A from seller X has a also offer a one-year subscription, which depending on the nature of the misperception sufficiently strong incentive to purchase can be viewed as an intertemporal bundle to which sellers are responding. product B from the same seller. In a second (access to the club in period 1 is bundled significant departure from the antitrust and with access in period 2). For consumers onsumer misperception of the costs industrial organization literatures, I focus who overestimate the number of visits they and benefits associated with a prod- on bundling by sellers operating in com- will make to the health club, the bundle/ uct or service is prevalent. It can petitive markets. subscription will be the preferred option. be the product of imperfect infor- Consider first consumer misperception Accordingly, in a competitive market, health mation or imperfect rationality (or about the value of a product. To fix ideas, clubs who fail to offer subscriptions will be C both). It can be independent of any assume that a consumer underestimates at a disadvantage. AUTUMN 2006 THE LAW SCHOOL 65 FACULTY FOCUS

The welfare implications of bundling bundling reduces welfare, regulation that printer and of an ink cartridge, respectively. depend on the type of misperception that discourages bundling may provide a valu- The consumer thus expects to pay a total triggers the bundling response. Absent bun- able tool for policy-makers. price of P = pp + 100 × pi. Competition guar- dling, underestimation of value leads to too It is important to emphasize at the outset antees that the total price P equals the total little trade. In the printers and ink example that the proposed account of bundling, and cost to the seller, namely, P = pp + 100 × pi = this means that too few printers will be pur- of the pricing of the bundle and its compo- 2,000. This competitive pricing condition is chased. Bundling, with its accompanying nents, as a response to consumer mispercep- satisfied by per-product marginal cost pric- backloaded pricing, generates an underesti- tion is not offered as an exhaustive or even a ing: pp = 1,000 and pi = 10. But it is also satis- mation of cost that offsets the underestima- dominant account. There are other impor- fied, for example, by pp = 0 and pi = 20 and tion of value. Bundling restores efficiency. tant explanations for the bundling strategy by pp = 2,000 and pi = 0. Overestimation of value, on the other hand, that have nothing to do with consumer Consumer heterogeneity breaks the leads to excessive trade. Bundling exac- misperception. In particular, many bundles indifference between the infinity of possible erbates this inefficiency. Absent bundling can be justified on cost-saving grounds. price combinations. Consider two types of with per-product marginal cost pricing, the Moreover, many observed bundles can be consumers: high-use consumers, who will overestimation of value is partially offset by explained by a combination of the misper- buy 110 cartridges on average, and low-use the overestimation of cost. Bundling, with ception-based and cost-based accounts. consumers, who will buy 90 cartridges on its accompanying front-loaded pricing, average. Assume an equal number of high- eliminates this beneficial offsetting effect. Analysis and low-use consumers. The pp = 0, pi = 20 The bundling strategy has distributional When consumers misperceive the costs or price pair is unattractive to high-use con- effects as well. When bundling is a response benefits of one product, competition may sumers. These consumers expect to pay 2,200 to underestimation of value and of use, high- force sellers to bundle this product with under this pricing scheme, and will thus be value/use consumers end up cross-subsidiz- another product. I allow for separate pric- quick to choose a seller offering a more bal- ing low-value/use consumers. When bun- ing of the two products, but show that the anced price combination. Specifically, high- dling is a response to overestimation of value competitive response to consumer misper- use consumers will prefer per-product marginal cost pricing, under which they expect to pay 2,100. Conversely, the pp = 2,000 and Sellers often respond to consumer pi = 0 price pair is unattractive to low-use consumers. These consumers expect to pay misperception by bundling the 2,000 under this pricing scheme, and will thus prefer per-product marginal cost pric- misperceived product with another, ing, under which they expect to pay 1,900. accurately valued one. Heterogeneity will thus lead sellers to price both their printers and their ink cartridges at marginal cost. Perhaps more importantly, and of use, low-value/use consumers end up ception will often entail a single price. It is elastic demand also breaks the indifference cross-subsidizing high-value/use consum- important to note that an effective bundle between the possible price combinations ers. The welfare implications of these distri- can exist even when two (or more) distinct and leads to marginal cost pricing. butional effects depend on the identity of the products are separately priced. This bundle high-value/use and low-value/use groups. can be sustained through technology (i.e., Underestimation of Misperception of value is not the only compatibility constraints), law (i.e., con- Value/Use type of misperception that can trigger a tractual obligation or intellectual property Now assume that consumers are myo- bundling response. Price misperception rights) or simply economic or psychological pic and systematically underestimate the can similarly force bundling of the product switching/transaction costs. amount of printing they will do and thus the whose price is misperceived and another Consider a competitive market for print- number of ink cartridges that they will buy. product whose price is accurately perceived. ers. Assume, however, that once a consumer How does consumer misperception affect The efficiency implications are straightfor- buys a brand X printer she can buy ink car- the above result that competition will lead ward. Bundling exacerbates the overcon- tridges only from X (as a matter of techno- to per-product marginal cost pricing? sumption problem created by underestima- logical compatibility). How will sellers price For expositional clarity, I return to the tion of price. When overestimation of price their product? Or, more accurately, how unrealistic benchmark market where con- leads to underconsumption, bundling alle- will they price their two bundled products: sumers are homogeneous with respect to viates this inefficiency. printers and cartridges? their printing practices. Absent consumer The main goal of this essay is to argue Take a specific example. Let the cost of a misperception, any price combination sat- that competitive bundling in response to printer be $1,000 and the cost of an ink car- isfying pp + 100 × pi = 2,000 can persist in persistent consumer misperception is both tridge be $10. Assume that the seller knows a competitive market. What if consumers predicted in theory and observed in prac- that an average consumer will buy 100 car- mistakenly believe that they will need 50 ink tice. While mainly descriptive, the analysis tridges over the life of the printer. (Inelastic cartridges, rather than 100 cartridges—the in this essay has normative and prescrip- demand is assumed for expositional sim- true number of cartridges that they will use? tive implications. I show that bundling has plicity.) The total per-consumer cost is thus Compare the perceived attractiveness of the both efficiency and distributional conse- $2,000. If consumers are homogeneous in three price pairs considered above. With quences. The feasibility of bundling can their printing practices, and fully aware of the pp = 2,000, pi = 0 pricing scheme the either increase or reduce welfare, depend- their expected use of the printer, then a con- consumer will perceive a total price of 2,000. ing largely on the type of misperception tinuum of printer-ink price pairs is possible. With the pp = 1,000, pi = 10 pricing scheme that triggers the bundling response. When To see this, let pp and pi denote the price of a the consumer will perceive a total price of

66 THE LAW SCHOOL AUTUMN 2006 1,500. And with the pp = 0, pi = 20 pricing scheme the consumer will perceive a total price of 1,000. Since sellers get the same total price under the three pricing schemes, they will choose the pp = 0, pi = 20 scheme. The preceding analysis focused on the pricing of printers and ink, taking the existence of the printer-ink bundle as given. But the formation of bundles in itself is an endogenous deliberate strategy. A main theme of this essay is that the bundling strategy is an effective, often inevitable, response to consumer misperception. The optimal pricing analysis demonstrated the domi- nance of the pp = 0, pi = 20 scheme. This pricing scheme cannot survive without effective bundling of printers and ink. Absent such bundling, a consumer who received a free printer under the pp = 0, pi = 20 scheme will buy ink at the marginal cost of pi = 10 from an independent ink seller. Foreseeing this dynamic, no one will adopt the free printer- “Please make a note—last year’s $39.95 value will be this year’s $49.95 value.” expensive ink tactic. © The New Yorker Collection 1996 Frank Cotham from cartoonbank.com. All Rights Reserved. cartoonbank.com. All Rights from Cotham Frank 1996 Collection Yorker New © The Making the pp = 0, pi = 20 scheme viable, of printing to the average consumer. The total perceived attractiveness of the three price however, is an attractive prospect. As shown value of printing to the average consumer pairs considered above. With the pp = 2,000, above, if viable, this scheme dominates all is thus 100v. Since the total cost of printing pi = 0 pricing scheme, the consumer will other pricing schemes. Specifically, it domi- is 2,000 (recall that the cost of a printer is perceive a total price of 2,000. With the pp = nates the pricing scheme that inevitably 1,000 and the cost of an ink cartridge is 10), 1,000, pi = 10 pricing scheme, the consumer emerges absent bundling, the pp = 1,000, pi it is efficient for a consumer to purchase a will perceive a total price of 2,500. And with = 10, marginal-cost pricing scheme. Sellers printer whenever 100v > 2,000 or v > 20. With the pp = 0, pi = 20 pricing scheme the con- thus have a powerful incentive to bundle underestimation of value/use, the perceived sumer will perceive a total price of 3,000. printers and ink. Indeed, sellers employ total value of printing is 50v (< 100v). Under Since sellers get the same total price under technological compatibility constraints cou- the pp = 1,000, pi = 10, marginal-cost pricing the three pricing schemes, they will choose pled with intellectual property protection to scheme the average consumer perceives a the pp = 2,000, pi = 0 scheme. secure effective bundling of printers and ink. total price of printing of 1,500, and will thus The optimal pricing scheme with over- What are the welfare implications of purchase a printer whenever 50v > 1,500 or estimation of use—pp = 2,000, pi = 0—is dia- the bundling of printers and ink cartridges v > 30. In particular, efficient purchases will metrically opposite to the optimal pricing and specifically of the pp = 0, pi = 20 pric- not occur whenever 20 < v < 30. scheme with underestimation of use—pp = ing scheme that such bundling entails? It Bundling cures this problem. With bun- 0, pi = 20. The bundling of printers and ink, may seem, at first blush, that there are no dling coupled with the pp = 0, pi = 20 pricing however, is equally necessary to support this welfare implications. After all, under all scheme, the average consumer perceives a very different pricing scheme. Absent such three pricing schemes—pp = 2,000, pi = 0; total price of printing of 1,000, and will thus bundling, the consumer would purchase pp = 1,000, pi = 10; and pp = 0, pi = 20—the purchase a printer whenever 50v > 1,000 or v a printer at the marginal cost of pp = 1,000 average consumer ends up paying the exact > 20. Efficiency is restored. The underestima- from an independent printer seller and then same amount: 2,000. But the three pricing tion of value is perfectly offset by the underes- pick up free ink from the seller offering the schemes are not welfare neutral. timation of total price. Bundling in response pp = 2,000, pi = 0 scheme. Anticipating this First, while the average consumer will to underestimation is welfare enhancing. dynamic, no one will adopt the expensive end up paying the same amount under printer/free ink tactic. As with underesti- the different schemes, some consumers Overestimation of mation of use, here too sellers have a strong will benefit and some consumers will lose. Value/Use incentive to make the pp = 2,000, pi = 0 Specifically, low-use consumers benefit What would be the market response to the scheme viable, by bundling printers and ink. from a move to the pp = 0, pi = 20 pricing opposite kind of misperception—to over- Arguably, effective bundling with pp = 2,000, scheme, while high-use consumers lose estimation, rather than underestimation, pi = 0 pricing can be more easily achieved, as from such a move. This distributional effect of value/use? While overestimation is less compared to effective bundling withp p = 0, pi can be seen as either good or bad, depend- likely in the printer-ink context, I continue = 20 pricing (as was needed with consumer ing on the identity of the high-use and low- with this example for ease of exposition. underestimation of use). All sellers need to use consumers, but it is not welfare neutral. Again, I return to the unrealistic bench- do is to price discriminate, in the sale of ink, A second welfare implication derives mark market where consumers are homo- between consumers who purchased their from the distortion in the number of print- geneous with respect to their printing prac- printer from the same seller and consumers ers that consumers buy. Underestimation of tices. Assume that consumers mistakenly who purchased their printer from a differ- value/use naturally leads to the purchase of believe that they will need 150 ink cartridges, ent seller. (Of course, ink arbitrage must also too few printers, at least absent bundling. To rather than 100 cartridges—the true number be prevented: A person who purchased a see this let v denote the per-cartridge value of cartridges that they will use. Compare the printer from an expensive printer/cheap ink

AUTUMN 2006 THE LAW SCHOOL 67 FACULTY FOCUS

seller must not be allowed to buy a million Policy Implications alone price, an inclusive price that adds ink cartridges at the low price and then resell The preceding analysis suggests that sell- the average cost of ink over the life of the most of these cartridges to consumers who ers often respond to consumer mispercep- printer, consumers will be less inclined to purchased their printer from another seller.) tion by bundling the misperceived product buy cheap printers that are bundled with What are the welfare implications of (or component) with another, accurately expensive ink. If a mortgage lender or a the bundling of printers and ink cartridges, perceived product (or component). The credit card issuer is required to calculate this time with the pp = 2,000, pi = 0 pricing analysis further suggests that such bundling for the consumer and explicitly state the scheme? As before, while the average con- can be either welfare reducing or welfare total (or expected) interest and fee pay- sumer will end up paying the same amount enhancing. When bundling exacerbates the ments over the life of the loan, then con- under the different schemes, some consum- adverse effects of consumer misperception, sumers will be more likely to balance this ers will benefit and some consumers will lose. regulation designed to discourage bundling total cost information against the short- The distributional implications, however, are may be desirable. term perks offered by the lender or issuer the reverse of those resulting from the pp In noncompetitive markets the anti- on a bundled product. = 0, pi = 20 scheme adopted in response to trust prohibition on tying serves as a direct underestimation of value/use. High-value/ unbundling policy. One possibility is to Conclusion use consumers benefit from a move to the extend this prohibition against bundling Bundles are everywhere. Durables are bun- pp = 2,000, pi = 0 pricing scheme, while low- to competitive markets. In at least two con- dled with parts and service. Subscriptions— value/use consumers lose from such a move. texts such an extension may have already e.g., magazine subscriptions and health Now to efficiency: While bundling occurred. First, where a base-good seller club subscriptions—can be characterized increased efficiency when adopted in operating in a competitive market (for the as an intertemporal bundle. Diagnostic response to underestimation of value/use, base good) attempts to bundle the base services are bundled with treatment ser- the opposite is true when bundling responds good with aftermarket parts or service, the vices. Products are bundled with selling to overestimation of value/use. To see this, Supreme Court has suggested that antitrust services (e.g., showrooms and knowledge- let v denote the per-cartridge value of print- tying law may apply (Eastman Kodak Co. v. able salespersons). Michael Spence, in a ing to the average consumer. The total value Image Technical Services Inc., 504 US 451, seminal contribution, argued that almost of printing to the average consumer is thus 479 (1992)). Second, the Magnuson-Moss every product “should be thought of as a 100v. Since the total cost of printing is 2,000 warranty legislation of 1975 restricts sell- bundle of characteristics.” In the modern (recall that the cost of a printer is 1,000 and ers’ ability to bundle warranted goods with world economy these bundled character- the cost of an ink cartridge is 10), it is effi- other goods regardless of the level of com- istics should be broadly defined to include cient for a consumer to purchase a printer petition in the relevant market. Given the contractual provisions and potentially whenever 100v > 2,000 or v > 20. severity of this remedy, however, it should independent products. With overestimation of value/use the per- probably be used, if at all, only in extreme The motivations for bundling are numer- ceived total value of printing is 150v (> 100v). cases where the bundling practice is obvious: from leveraging of monopoly power to Overestimation of value/use naturally leads ously harmful and where alternative poli- product differentiation to simple cost sav- to the purchase of too many printers even cies are ineffective. ing. This essay explored another motivation under marginal cost pricing. Under the pp = A less blunt unbundling policy is to pro- for bundling. It presented bundling as a 1,000, pi = 10, marginal-cost-pricing scheme, mote competition on each component of strategic response to consumer mispercep- the average consumer perceives a total price the bundled product. If a consumer who tion. The welfare and policy implications of printing of 2,500 and will thus purchase a bought a printer from seller A can buy ink of bundling depend on the motivation for printer whenever 150v > 2,500 or v > 16.6. In cartridges from seller B, seller A would not the observed bundling. Monopoly leverag- particular, inefficient purchases will occur be able to set low (below marginal cost) ing is bad. Cost saving is good. Bundling in whenever 16.6 < v < 20. While overestimation printer prices and high (above marginal response to consumer misperception can produces inefficiency even absent bundling, cost) ink prices. This example suggests stan- be either good or bad. bundling exacerbates this inefficiency. With dardization as a potential solution to the This essay provided some tools for the bundling coupled with the pp = 2,000, pi = 0 bundling problem. policy-maker to identify misperception- pricing scheme, the consumer will purchase Looking at intertemporal bundling, the based bundling and to ascertain when a printer whenever 150v > 2,000 or v > 13.3. use of bundling tactics can be discouraged such bundling is welfare reducing. It then Namely, the range of inefficient purchases by reducing switching costs. The legal guar- considered various regulatory responses increases from 16.6 < v < 20 without bun- antee of cell phone number portability is and unbundling policies. The difficulty dling to 13.3 < v < 20 with bundling. an example of a policy aimed at increasing in identifying the motivation (or motiva- Without bundling, marginal-cost pricing competition by reducing switching costs. tions) for an observed bundle, coupled leads to overestimation of the total price in Limiting sellers’ ability to use early termina- with the difficulty in evaluating the wel- addition to the overestimation of value. And tion penalties in subscription contracts is fare implications of bundling even when two overestimations are better than one: The another example of a competition-fostering its underlying motivation is revealed, overestimation of the total price partially off- unbundling policy. suggests regulatory caution. For this rea- sets the overestimation of value, thus reduc- Disclosure regulation may also serve son the most attractive unbundling poli- ing the inefficiency. With bundling, sellers as an unbundling policy. If sellers bundle cies are those that facilitate the smooth front-load the entire cost of printing onto printers and ink in response to consumer operation of markets—through reduced the price of the printer, preventing overes- misperception about future use, regula- switching costs and the provision of timation of total price by the consumer. By tion requiring sellers to provide “total cost information—rather than the more heavy- removing the beneficial offsetting effect of of ownership” information may effectively handed policies that directly prohibit price overestimation, bundling exacerbates prevent bundling. If a seller must adver- bundling or attempt to fix the price of the the excessive trade problem. tise, in addition to the printer’s stand- bundle or its components. ■

68 THE LAW SCHOOL AUTUMN 2006 What has been overlooked in both the lit- Crimes and Constitutions erature and the Supreme Court’s decisions is what the separation of powers requires when rachel barkow examines the disturbing impli- the government proceeds in a criminal action. cations of ignoring separation-of-powers con- Criminal cases could be viewed in one of three ways. One approach would be to treat cerns in criminal matters. separation of powers questions in criminal cases no differently than they are treated in administrative law cases. As in the administrative law context, some blending of powers would be permitted to allow the federal government to respond more readily to criminal matters, while at the same time, other checks would take the place of the constitutional separation of powers to ensure that the government does not abuse its power. A second alternative would be to distinguish criminal matters from administrative ones. Because state power is at its apex in the criminal context and the consequences of abuse are so high—an individual could lose his or her liberty or even life—this view would require strict adherence to separation of powers to make sure that the state acts appropriately against an individual. Current law follows a third way. Criminal cases are not distinguished from administrative law cases, so the separation of powers is often relaxed to allow a blending of powers when the government claims it is necessary in the name of Just when our nation is debating the limits Instead of relying on separated powers as the expediency. Indeed, the Court has been even of executive power in a time of war, Rachel primary means of protection against govern- more permissive in the criminal context than Barkow looks at the separation of powers ment abuse, they proposed other checks on it has in cases involving nonpenal laws. But from a unique angle, that of criminal law. state power. For example, the Administrative unlike the administrative law context, where Her paper “Separation of Powers and the Procedure Act (APA) requirements of notice agencies must adhere to the structural and Criminal Law” was published in the Stanford and comment, of separation between law process protections of the APA and their Law Review (58 Stan. L. Rev. 989 (2006)) and enforcers and adjudicators, and of judicial decisions are subject to judicial review, the won the AALS Section on Criminal Justice’s review were designed to perform the same government faces almost no institutional Outstanding Paper Competition 2006. In this functions as the Constitution’s separation of checks when it proceeds in criminal matters. summarized excerpt, Barkow argues that we powers safeguards, but without hamstring- The only safeguards come from the individ- should pay more attention to maintaining a ing the government’s ability to respond rap- ual-rights provisions of the Constitution, but strict separation of powers in criminal mat- idly to the nation’s problems. those checks act as poor safeguards against ters because no other structural or proce- The Supreme Court has accepted this structural abuses and inequities. dural checks provide the same protection. compromise for administrative agencies. The current arrangement therefore takes While the Court has rejected some insti- the worst possible approach to separation t is a familiar premise that the Constitu- tutional arrangements that strayed too far of powers in the criminal law. The protection separates legislative, executive and from the constitutional separation of pow- tion provided by the separation of powers judicial power to prevent tyranny and ers, it has allowed considerable blending of is relaxed, but nothing takes its place. As a protect liberty. By preventing any one executive, judicial and legislative power in result, the potential for government abuse branch from accumulating too much regulatory agencies. At the same time, the is, ironically, higher in the criminal context authority, the separation of powers aims Court has taken an expansive reading of the than in other regulatory spheres. I“not to promote efficiency but to preclude APA to check government abuse. This perverse state of affairs has been the exercise of arbitrary power.” The price of Scholars have filled volumes analyzing overlooked in the literature because schol- separation is that it makes it more difficult the relationship between the separation of ars have failed to treat criminal law as a for the federal government to act—whether powers and the administrative state. Some separate category for analysis. Instead, for good or bad purposes. have argued that the Court’s allowance questions involving the oversight of the The rise of the administrative state put a of blending promotes good government administrative and regulatory state have spotlight on this cost of the separation of pow- and accords with the Constitution. Others tended to dominate the discussion of sepa- ers. New Dealers in favor of a more efficient have claimed that the existing administra- ration of powers. So, the conventional wis- and active federal government argued for a tive state flouts the basic structure of the dom has been that whatever theory works relaxation of the division of powers to allow Constitution and that the Court has been for the administrative state should work agencies to combine government functions too permissive of government schemes that for anything else too. And because most in order to address social and economic ills. combine powers. scholars have supported a flexible or func-

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tional approach that allows the concentration of powers recognizes and addresses It could be argued, however, that the tion of different powers in one actor in the this threat of discriminatory enforcement. It extent of federal criminal law expansion, regulatory sphere, they have failed to see a requires not only that the executive and legis- like the extent of the growth of the admin- problem with that same approach when it is lative branches agree to criminalize conduct, istrative state, was unexpected. But even if applied to criminal matters. but also includes the judiciary as a key check it could be shown that, as in the context of This article breaks from that tradition on the political branches. Before anyone can the administrative state, there has devel- and argues that the existing approach to be convicted, he or she is entitled to judicial oped over time a greater need for the fed- separation of powers in criminal matters process. Federal judges, with life tenure and eral government to take an active role on cannot be squared with constitutional the- salary protections, have the independence crime, it still does not necessarily follow that ory or sound institutional design. Although that enables them to check both the legisla- separation of powers restrictions should the administrative state has structural and ture and the executive and to assure fair and be relaxed when it comes to crime. That is process protections that can justify some impartial decisionmaking in a given case. because there are critical functional differ- flexibility in the separation of powers, those Even these protections were inadequate ences between the two settings. checks are absent in the criminal context. to the Framers, however. Because separa- And in their absence, it is critically impor- tion of powers is concerned, among other he greatest historical development when tant to maintain a strict division of powers. things, with conflicts of interest, judges were it comes to the separation of powers is T the rise of the administrative state. That development provides the main rationale The current arrangement therefore for adopting a functional approach to sepa- takes the worst possible approach to ration of powers questions. In response to the Depression and a government structure separation of powers in the criminal that seemingly failed to prevent it, reformers increasingly turned to expert agencies law. The protection provided by the that would combine functions and address important social and economic problems. separation of powers is relaxed, but The underlying idea is that an active, unim- peded government can produce beneficial nothing takes its place. results for society. The Court ultimately accepted these This approach would lead to different out- not deemed sufficient protection against the arguments and has long allowed adminis- comes in the Court’s major separation of possibility of state abuse in criminal cases trative agencies to flout the separation of powers cases dealing with criminal matters because of their potential partiality toward powers by combining executive, legislative and would result in a rethinking of its accep- the government. The Constitution therefore and judicial powers. But the courts’ acceptance of unreviewable prosecutorial discre- provides in Article III—the article establish- tance of the administrative state and its tion over charging and plea bargaining. ing the judicial role in government—that blending of powers was conditioned on the the trial of all crimes must be by jury. The availability of judicial review and a host of ne of the animating features of the jury’s unreviewable power to acquit gives it procedural and structural checks. These Constitution is its preoccupation with the ability to check both the legislative and checks are absent in the criminal sphere. O the regulation of the government’s executive branches. criminal powers. Even before the adoption of Added to these many protections are the gencies conducting formal adjudica- the Bill of Rights, the Constitution provided numerous protections for criminal defen- tions must obey various structural protection for the rights of those accused of dants in the Bill of Rights. A rules designed to ensure impartiality. crimes through its structural provisions. Thus, when it comes to criminal justice, The individual at the agency who presides Article I establishes express limits on the the separation of powers is divined not just at the hearing must be impartial and must legislative exercise of judicial power. It pro- from the fact that Articles I, II and III sepa- be separated from individuals at the agency hibits bills of attainder, which would allow rate legislative, executive and judicial power. who perform investigative and prosecuto- Congress to identify those specific individu- Rather, there are many additional textual rial functions. ALJs and anyone else at the als affected by any given piece of legislation indications that separating functions is criti- agency involved in the decision-making before passing it. It also aims to prevent cally important when the federal government process are prohibited from having ex parte the legislature’s ability to target individuals uses its criminal powers. Under the scheme communications related to the merits of the for criminal punishment through the pro- established by the Constitution, each branch proceeding, and the agency’s decision must hibition on ex post facto laws. And it limits must agree before criminal power can be be based on the evidence in the record. The Congress’s authority to suspend the writ of exercised against an individual. Congress APA also imposes various process require- habeas corpus, which is a key protection must criminalize the conduct, the executive ments, including notice to interested par- for individuals against unlawful detention. must decide to prosecute and the judiciary ties, an opportunity for interested parties These provisions expressly deal with legisla- (judges and juries) must agree to convict. to submit evidence and arguments, and tive interference with the judicial function, The Constitution’s provisions addressing a chance for interested parties to submit but what if the legislature works with the crime and the separation of powers reflect proposed findings and to make exceptions executive to single out disfavored minorities the fact that the Framers weighed the need to tentative agency decisions. In all formal for prosecution? That is, suppose the laws are for federal government efficiency against proceedings—rulemakings and adjudica- generally applicable, but they are enforced the potential for abuse and came out heav- tions—the agency must issue a decision on only against unpopular groups or political ily in favor of limiting federal government the record with a statement of its findings enemies of the party in power. The separa- power over crime. and conclusions.

70 THE LAW SCHOOL AUTUMN 2006 When agencies proceed through informal rulemaking instead of formal rulemaking or formal adjudication, they must issue a notice of their proposed rules and give the public an opportunity to comment. As in formal proceedings, the agency’s decision must be based on the facts in the record, and the agency must disclose the evidence on which it relied in reaching a decision. The agency must consider the comments received, and explain why it rejected arguments made in the comments. All agency proceedings—formal or informal, rulemaking or adjudication—are subject to extensive judicial review. Decisions made in even the most informal adjudica- tions are subject to judicial oversight to ensure that the agency’s action is not arbitrary and capricious. Agencies must give reasons if they change course from case “Let me give you a lesson in American history: James Madison to case, and there must be support for the never intended the Bill of Rights to protect riffraff like you.” agency’s decision in the administrative record. If there is evidence in the record no structural separation of adjudicative and Indeed, because prosecutors need not that undermines the agency’s position or if executive power, and defendants have no make the terms of their plea bargains avail- © The New Yorker Collection 1990 J.B. Handelsman from cartoonbank.com. All Rights Reserved. cartoonbank.com. All Rights from Handelsman J.B. 1990 Collection Yorker New © The a party or commenter raises a serious objec- right to a formal process or internal appeal able to the public through publication and tion to the agency’s proposal, the agency within the agency. In addition, in the course because prosecutorial law enforcement is must offer reasons why those arguments of bargaining with a defendant over charges, largely exempt from open government laws do not hold sway. Thus, unlike the judicial the prosecutor can engage in ex parte con- like FOIA, a defendant might not even know rubber-stamping associated with rational- tacts with the police and investigators, and that another similarly situated defendant basis review, courts take a “hard look” at the defendant need not be given access to received a particular deal. Nor may defen- the agency’s explanation to provide a check the information on which the prosecutor dants be aware that a prosecutor is diverging against arbitrary implementation. relies—that is, the prosecutor’s evidence of from office policy. Unlike an administrative Oversight laws—such as the Freedom the defendant’s guilt. agency’s policies, the prosecutor’s policies of Information Act (FOIA) and the Federal The Supreme Court is of the view that a are not openly disclosed to the public and Advisory Committee Act (FACA)—grant prosecutor’s charging and plea bargaining are not subject to arbitrary and capricious the public additional access to information decisions are largely off-limits from judicial review for reasoned consistency. about the agency decision-making process, review. Furthermore, while judges oversee Nor is the lack of structural oversight in which provides further protection against prosecutors to make sure that pleas are the federal criminal process limited to pros- arbitrary agency action or agency decisions knowing and voluntary and have a factual ecutors. Even when Congress created the based on improper influences. basis, their inquiries are cursory. Sentencing Commission, a federal crimi- This oversight regime of judicial review Thus, instead of being subject to the nal agency modeled in crucial respects and structural constraints has been crucial hard-look review that other agencies face after traditional administrative agencies, it to the Court’s acceptance of broad delega- when they seek to impose fines or penalties failed to subject the commission to key APA tions of legislative and judicial power to or to require action of some kind, prosecu- requirements. executive agencies. tors enjoy a presumption of regularity and There is, then, a sharp incongruity Notably, these protections do not apply face only a cursory judicial inquiry of their between the treatment of discretion in the to the actions of key governmental officials discretionary decisions to enter plea agree- administrative context and the criminal and agencies exercising criminal power, ments. Moreover, though a defendant has context. The Court accepted the constitu- particularly prosecutors. Because of the the right to reject a plea and take his or tionality of the administrative state against operation of a broad federal criminal code her case to trial, that option fails to police the backdrop of structural and procedural and prosecutors’ leverage over plea bar- structural abuses of power. Indeed, a defen- protections that protect against the dangers gaining, the only process—judicial or other- dant takes a big gamble in exercising even of combining powers under one roof and of wise—that most defendants receive comes this limited power of review, because if the allowing one branch of government to exer- from prosecutors. In the course of reach- defendant is found guilty, he or she is sub- cise disproportionate authority. Because ing a negotiated disposition, the prosecu- ject to harsher punishment. those protections are lacking in the context tor effectively acts as an adjudicator who Without judicial oversight to speak of or of criminal matters, the same arguments in decides what the appropriate punishment any internal constraints, the potential for favor of flexibility do not apply. for the defendant is. Despite the signifi- arbitrary enforcement is high. Prosecutors The structural and procedural checks cance of prosecutorial power, prosecutors need not treat similar cases similarly for supplied by the APA are not the only mecha- operate with little oversight or regulation. purposes of plea bargaining, and they need nisms for checking government abuse that The same prosecutor who investigates a not explain why they agreed to reach a deal are absent in the criminal context. Political case can make the final determination with one defendant but refused to do so with oversight mechanisms provide a key check about what plea to accept. There is therefore another defendant guilty of the same crime. on administrative agencies, but they do not

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work as effectively when it comes to criminal enforcement. How Early New Yorkers In the typical regulatory context, groups line up on both sides of the issue and, if any- Created an Empire of Law thing, there are more powerful forces operating to check too much government interven- daniel hulsebosch takes us back to revolutionary tion. The political process is more skewed when it comes to crime, particularly fed- America to investigate the unique context that eral legislation aimed at substantive crime inspired the Federalist Papers—and to explain definition and sentencing. Neither criminal defendants nor judges—the two main tar- how New York became the Empire State. gets of criminal punishment legislation— have much sway on the political process. While the targets of regulation are weak, proponents of more expansive criminal laws are not. Prosecutors have an incentive to request broader criminal laws and longer, mandatory sentences because those laws make it easier for them to obtain defendants’ cooperation in plea bargaining. Groups with a stake in the expansion of prisons—including rural communities, corrections officer unions and private prison companies—are powerful forces in favor of longer sentences. Victims’ rights groups similarly endorse longer sentences and more expansive criminal laws. The public is also generally supportive of harsher criminal laws and is easily mobi- lized by politicians or interest groups to get behind “tough on crime” initiatives. Because the targets of regulation are weak and the voices in favor of broader laws and longer punishments are powerful, the political system is biased in favor of more severe punishments. There are few forces that can counter the government when it How is political authority created and well have been its constitutional culture. overreaches on crime. then sustained over time? In Constituting Decades of political and legal turmoil gen- The scheme of separated powers is Empire: New York and the Transformation erated a new understanding of constitution- designed to do just that. The Constitution of Constitutionalism in the Atlantic World, alism that New Yorkers published in books makes it difficult for the state to act in crimi- 1664–1830 (University of North Carolina that circulated across the new United States nal cases against individuals and members Press, 2005), Daniel Hulsebosch examines and beyond. The institutional matrix for this of groups disfavored by the majority. All the imperial context of the Federalist Papers, creativity was empire, and the catalyst was three branches must agree to allow a crimi- which he argues failed to rally support for an intra-imperial struggle that culminated nal conviction, and the judiciary plays a the federal Constitution but soon became in the American Revolution. Afterward, particularly significant role because of its its “user’s manual.” He also explains that the New Yorkers remained central to the recon- relative insulation from the political imbal- invention of U.S. constitutional law was influ- figuration of constitutional resources that ance described above. enced by British constitutional ideas, boiled culminated in a new genre of law, constitu- The impediments to action provided by down in the dynamic melting pot of the New tional law, as the province moved from the the separation of powers check state abuse World. In this excerpt from the book’s intro- periphery of Britain’s Atlantic empire to the and preserve the interests of individuals duction, Hulsebosch describes colonial New center of a new continental one. and local and political minorities. This York and the seeds of constitutional law. By the middle of the eighteenth cen- argument for separation of powers is there- tury, New Yorkers operated on the edge of a fore the classic representation reinforcing etween the British takeover of vast ocean marketplace and their province theory for judicial review. Thus, arguments the place the Dutch called “New helped connect the British Isles and the for dismantling this scheme on the basis of Netherland” in 1664 and New York’s West Indies. Commerce linked the colonies efficiency grounds—that the state is ham- emergence as the “empire state” in and British port cities, and most New Yorkers strung in its ability to proceed in criminal the early nineteenth century, the had no reason to imagine a world without cases—disrupt the very core of why we have province was transformed from a those ties. From this perspective, New York separation of powers in the first place. The B modest trading outpost on the edge of the was much like Bristol, its trading partner inefficiency associated with the separation Atlantic world into a bustling entrepôt and on the west coast of England: both mea- of powers serves a valuable function, and, exporter of goods, people and culture. New sured their distance from London by sailing in the context of criminal law, no other York’s most important cultural export in the time; only the unit of measurement, weeks mechanism provides a substitute. ■ early years of the American republic may versus days, differed. But diversity and spe-

72 THE LAW SCHOOL AUTUMN 2006 cialization engendered conflict among the George Washington’s reference to New York an exceptional break with the past. They provinces, such as between the continen- City as “the seat of the empire” in 1785 when accept the framers’ claim to have estab- tal colonies and the West Indies. And New he received the golden key to the city, then lished Novus Ordo Seclorum at face value York was itself regionally diverse: the city the Confederation’s capital. A seat of empire rather than ask why the framers wished to and its dependent hinterland; the Hudson was geographically central, commercially distance themselves from some, but not Valley, with its large manors and commer- vibrant and internationally formidable. all, legacies of the British Empire—why cial farming; Albany, a hub for Indian trade; Rome was the classical model, London they wished to see themselves as founders. eastern Long Island, a place of farms and its contemporary successor. Washington Returning the Constitution to the context fishing villages close in space and identity invoked the prospect of an American empire of imperial resistance, rebellion and state to New England; scattered western settle- to urge city residents to resist Antifederalist constitution-making reminds us that the ments; forts and trading posts even farther localism, which he thought threatened “to founders looked backward as well as for- west in land still governed, to all intents and sap the Constitution of these States” and ward. In both directions they saw empire. purposes, by the Iroquois. Although they “destroy our national character.” In 1785 While crown officials and parliamentary were not royal subjects and had no formal it was unclear whether New York would legislation were gone, the legacies of British representation in the province, the Iroquois become the seat of an empire, for it was rule—its legal institutions, practices and made New York different from other crown too early to tell whether the Confederation languages—remained as the raw materials dominions. On the other hand, New York would succeed as one. This was the issue— for the American constitutions. shared with its neighbors a reliance on slave “the fate of an empire, in many respects, Now “empire” has negative connota- labor. There was a large slave population in the most interesting in the world”—that tions. Modern empires are seen as expan- New York City—20 percent of its population Alexander Hamilton framed for New York sive and exploitive. According to the con- in 1740—and a small but significant num- voters two years later in the first Federalist. ventional historiography, the United States ber of slaves throughout the countryside. New York’s unusually rich debate over the has, except for an aberrant moment in the They, like the Native Americans, were not federal Constitution reflected its geopoliti- late nineteenth century, been free of impe- members of the colony’s political culture, cal importance and tradition of articulate rial ambition. Since the Second World War, but they too affected its constitution before political opposition. In turn, New York’s historians have shifted focus away from and after independence. This regional and ratification literature helped translate the even the incontestably imperial aspects of demographic diversity produced rival- tropes of imperial and provincial power into its colonial history. But new interpretive ries as well as connections, a sense that American constitutionalism. models within the academy and skepticism New York was a separate jurisdiction, and about nationalism outside it allow us to reminders that it was enmeshed in a larger he recovery of the imperial origins of return to the eighteenth century and recover Empire. The Indians had long observed that American constitutionalism is not only the imperial strand of American constitu- the province’s main river flowed up through T a matter of historical interest. Although tional history. The renaissance of Atlantic the mountains as well as down to the sea. legal scholars often declare that American history and imperial studies reminds us New Yorkers’ perspectives shifted likewise, constitutions are living documents that that the American colonies were much like north and south, east and west, into the adapt to changing times, even those who the other British provinces across the ocean: continent and across the Atlantic. This oscil- eschew reliance on the framers’ original Each was protective of its autonomy while lation between the local and cosmopolitan intent try to identify historically legiti- participating fully in Atlantic trade and cul- defined what it meant to be provincial and mate restrictions on constitutional mean- ture. Historians have begun to recover the generated conflicting constitutional visions among colonial New Yorkers. New York was both representative and Substantive notions of liberty traveled unusual. Colonists elsewhere in the British North America were at least as protective of well, like negotiable instruments, and their local liberties as the provincial elite in New York. Likewise, there were competent became transatlantic currency that could imperial officeholders in several of the other be traded anywhere English was spoken. colonies. Yet no other colony had as coher- ent a group of imperial agents as that based in New York after 1750. More important, in no ing. Some fundamental meanings were political, social and economic connections other colony were the provincial elite and the encoded long ago, and each generation that integrated the Atlantic and the individ- imperial agents so well balanced as in New must work within or against them. The first ual empires within it. Constitutional culture York during the last quarter century of impe- American constitutions, state and federal, was a crucial means of integration. From its rial rule. That tension between a corps of offi- were drafted after two centuries of coloni- beginning, the British Empire could not have cials trying to reform imperial administra- zation in which British legal culture struc- expanded so successfully without the inte- tion and a provincial elite jealous of its local tured relationships between province and grating symbols of English constitutional power, in a marchland colony full of oppor- metropolis, among provinces and within liberty, and constitutionalism would not tunities and threats, made New York’s path to each province. Consequently, the constitu- be so strong a force in the modern United revolution indirect and not inevitable. tional ideas and practices of the first British States without that imperial legacy. But the After the Revolution, New York remained Empire still influence American constitu- Empire was also marked by legal pluralism a strategic port and became a headquar- tionalism today. and polyvalent authority. Relationships that ters for continental expansion. It was then Most Americans, however, equate today appear vertical were then horizontal, that people began calling it the “empire the founding with the writing of the fed- as the Empire was a collection of competing state.” That nickname probably derives from eral Constitution and view that event as power centers rather than a pyramid of sov-

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ereignty. Who governed what? The answer turned on who asked whom, when and why. The Empire’s legal architecture was baroque but unfinished: ornate in some areas, rude in others. Most adhered to no single theory of the Empire or its constitution; legal integration remained a controversial goal. As the Empire spread, the resources of English constitutionalism became more malleable. What had served integration soon disguised diversity behind familiar terms. The failure to create a unifying constitution—a legal environment that could account for and contain disputes within the Empire—contributed to its disintegration. Some officials in eighteenth-century New York recognized that a special category of imperial law was necessary to bind the Empire. In a legal world with no imperial or British law superior to the local law of its “Remember, gentlemen, we aren’t here just to draft a constitution. parts, these officials tried to manufacture We’re here to draft the best damned constitution in the world.” one, carving out a space either within the

common law tradition or separate from it he evolving definition of “constitution” is the distinction between unwritten and writ- Reserved. cartoonbank.com. All Rights Steiner from Peter 1982 Collection Yorker New © The in which to administer imperial policy. The analyzed throughout my book. For now, ten constitutions. Much of the English con- common law had served this purpose in T it is helpful to think of constitutions not stitution was written. Although no single medieval England, as royal judges central- as documents but rather as relationships document captured all English constitu- ized justice in toward the crown and away among jurisdictions and people mediated tionalism, there was an evolving canon of from local customary courts. But although through highly charged legal terms. Before great documents. Magna Carta (1215), the England had become Great Britain, and and after the Revolution, a constitution was Petition of Right (1628) and the Bill of Rights Great Britain the British Empire, the domi- a way of thinking about, and practices for (1689), for example, were on everyone’s list, nant constitutional resources within those carrying out, the project of government and while the Levellers’ Agreement of the People extended territories remained English, par- never depended on a single institution of (1648) was on few. These documents were ticularly the common law. This was now a enforcement. Instruments and rules were not exhaustive. Commentary in treatises, hybrid resource of institutions and rhetori- not enough. Well-understood practices, essays and judicial reports fleshed out their cal strategies plastic enough to bolster cen- resting on a shared commitment to the soci- significance, as did oral tradition. Beyond tral control or defend local autonomy, espe- ety that the constitutions serve, are needed the documents and the commentary were cially when the common law became closely to make a constitution work. The premise the institutions that interpreted and applied identified with the “liberties of Englishmen” of Anglo-American constitutionalism has them, the practical conventions that gave in the seventeenth century. Overseas, pro- always been that constitutions are largely constitutions life. Collectively, these docu- vincial New Yorkers used those compo- self-enforcing through a mixture of popu- ments, ideas and practices formed the nents upholding local autonomy success- lar acceptance and deft administration. Empire’s constitutional culture. fully, forcing the imperial agents to search However, constitutional ideas and prac- This culture was not sealed off from the for a separate imperial law. But the agents’ tices resting on this premise varied across rest of Anglo-American culture. Control over attempts to create it helped precipitate space at any given moment and changed it was decentralized; no one held a monopoly rebellion, and today they are forgotten. A over time. Britons in New York before the on constitutional meaning. There were no generation later, American lawyers created Revolution, and Americans after, struggled constitutional law casebooks or professors constitutional law—a category of law with to define constitutions to accommodate of constitutional law. There was no genre distinctive procedures, vocabulary, style of and shape British legal culture as it traveled of constitutional law. Early modern English- reasoning, institutions of enforcement and with colonists abroad. The focus here is on speakers also conveyed more than strictly education, and emotional atmosphere—to the way people experienced constitutions legal meanings when they employed consti- bind the states together. In so doing, they rather than on constitutional theory. It is tutional scripts. Modern Americans some- succeeded where the British imperial futile to classify Anglo-American constitu- times do the same, slipping political visions agents had failed and figure prominently tionalism as, for example, either republican into well-crafted legal interpretations. Early among those whom Americans call found- or liberal as historians and political philoso- moderns did so explicitly because the legal ing fathers. Other jurists built on this phers understand those terms. Most people had not been divorced from the political. foundation of federal constitutional law to believed that a constitution should protect Constitution-talk was a legalist idiom that revise state common law and make it more both the public interest and individual highlighted arguments not just about courts integrative, too. When the founders cre- liberties. Similarly, early modern constitu- and legislatures and executives but also the ated a new republic, they did so in dialogue tions were not simply descriptive blueprints fate of political society. Consequently, con- with their own colonial past, forging tighter for government or lists of prescriptive ide- stitutional culture provided a primary lan- bonds than the old imperial administra- als. A constitution could be either or both, guage for constructing the British Empire, tors had even imagined: “a more perfect depending on who invoked it and for what revolting against it and writing the new Union.” purpose. Too much has also been made of American constitutions.

74 THE LAW SCHOOL AUTUMN 2006 Conventional wisdom tells us that the subjects and governors adapted British legal and connected white Americans to their American revolutionaries rejected the prin- sources for their purposes. Where before British past. But overland migration, which ciple of legislative supremacy along with law was defined in terms of jurisdiction— only with nationalist hindsight can be called parliamentary regulation and carefully dis- who had the power to determine right and internal, had always separated British North tributed authority between local and central wrong and what were the boundaries of that America from Britain, American consti- governments, now called the doctrine of power?—now it was conceived as jurispru- tutional culture from British. That move- Federalism. However, if we change the pre- dence, a rational system of rules that bound ment, which was a behaviorist expression revolutionary image of the British Empire, governments and private parties. The juris- of radical notions of liberty and property, the new Union looks different, too. Instead dictional lines that defined the ancient infuriated the British imperial agents while of dual, limited governments emerging constitution were difficult to police abroad. also making some of them rich from land from an omnipotent sovereign, provincial In contrast, short, powerful statements of speculation. Frustration fell away after the Britons moved from a fluid constitutional fundamental law traveled well across space. Revolution, and mobility became the coun- environment to a much more structured and For the colonists to claim English liberties, try’s most important capital investment; constraining one. If “federal” means diffuse they had to conceive of them as an abstract without it, the Union’s greatest resource— authority, government became less federal jurisprudence operative in all of the crown’s land—remained worthless. And without after the Revolution because there were dominions, not as a system of licenses to sue ties of cultural identity, foremost among fewer legitimating ideas and institutions for in territorially bounded courts. Substantive which was constitutional identity, much of Americans to draw upon than for Britons a notions of liberty traveled well, like nego- that land might not have become part of the generation earlier. Indeed, the American tiable instruments, and became transatlan- United States. People moved west; their gov- constitutional doctrine of federalism en- tic currency that could be traded anywhere ernors called them American; lawmakers tailed just this concentration of authority. English was spoken. This jurisprudence of incorporated them into the Union; because Centripetal, not centrifugal, forces charac- liberty could be used many ways. It could that incorporation offered the settlers the

© The New Yorker Collection 1982 Peter Steiner from cartoonbank.com. All Rights Reserved. cartoonbank.com. All Rights Steiner from Peter 1982 Collection Yorker New © The terized the Revolution and its constitutional be imperial and integrative here, provincial prospect of equal citizenship, they accepted settlement. Soon legitimate constitutional and disintegrating there; liberating in one it. In retrospect it is manifest destiny. At the power operated at only two levels: the fed- place and enslaving in another—liberating time it was a speculative project, a kind of eral government and the states, with local and enslaving in some places at the same political speculation. The hard fact of mobil- authority subsumed beneath the latter. time. To understand the legal culture of the ity—of popular disregard for jurisdiction in The shift from British constitutionalism old Empire and the early United States, we the traditional sense of legal boundaries of to American constitutional law also tended must understand the intellectual transfor- both liberty and power—was a fundamental to submerge the political dimension of constitutions. Politics became more clearly sep- Constitutional law became an integrating arated from law, although the two existed on a continuum. And in the first two gen- force far stronger than any under the erations of the republic, state legislatures enjoyed something very near to supremacy. British Empire. The first party system, which emerged in the 1820s, represented the high-water mark of mation in the idea of law on which colonial fact of early American constitutionalism. It state political power. But partisan politics, resistance was premised: the shift from contributed to the Revolution, and it shaped and the large internal improvement projects jurisdiction to jurisprudence, the rules in a all the American constitutions. The states party-led states undertook, soon sparked a legal system to the rule of law, English liber- existed in a market for people that turned backlash, and voters demanded new state ties to American liberty. The centerpiece of on legal incentives called rights and liber- constitutions to restrain government. Those this transformation was the creation of the ties, and the federal government struggled nineteenth-century state constitutions clar- new, separate category of constitutional law, to maintain the perception, true in most ified the line between ordinary politics and which was an integrating force far stronger places at most times but fictional in all once constitutional law, but they also showed than any under the old Empire. The funda- in a while, that it exercised authority over all that constitution-writing remained a spe- mental legal tension of empire was between the people. Here was the radical potential cial form of politics. the rule of law and the expansion of rule, a of “we the people.” The relentless mobility So there was a transformation in consti- striving toward universals of government of the people proved as momentous as their tutionalism in the early United States, but it and rights on the one hand and toward increasing participation in the electorate was not a shift from descriptive to prescrip- increasing territorial jurisdiction on the and occasional performances of their power tive constitutions. Instead, Americanization other. The American founders’ resolution in parades and mobs. The people went involved the reorganization of the sources was to attempt to control a space by law that where they were told not to go and encoun- of a constitution, new institutions of could not possibly be controlled by men. tered Native Americans unschooled in the enforcement and a new conception of law The expansive space could not be con- legitimating language of Anglo-American as a hierarchy of substantive genres rather trolled by traditional means because the liberty. They conquered the continent less than, as in England, a collection of courts people moving across it would not submit with violence than with the confidence and procedures for resolving disputes, each to such control. This relentless mobility with which they carried forward notions of jostling with the others for preeminence but was the paramount expression of popular constitutional liberty forged in the matrix most arranged horizontally rather than ver- sovereignty in America, and it expressed of empire. That, too, is what was meant by a tically. This new conception of law did not more than traditional “customs in common.” government of laws rather than of men. ■ develop directly out of English legal ideas Popular constitutionalism, which was per- but passed first through a stage that might formed in petitions, protests, parades and Copyright © 2005 by the University of North be called imperialization in which colonial mobbing, continued after the Revolution Carolina Press, www.uncpress.unc.edu

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in the stateless world of the eighteenth-cen- Saving Fish by Privatizing tury beaver hunters. In fact, their modern- day descendants in northern Quebec and Marine Fisheries Labrador don’t either—they’re regulated by several levels of government. Focusing too katrina wyman argues that politics has impeded narrowly on the role of economic factors means that we have an incomplete picture economic forces, leading to devastation in the of why we have private property. In addition, world’s oceans. it leaves us without a good understanding of why efforts to introduce private property in situations where it would be helpful have Why haven’t ITQs—individual transfer- the benefits of mapping out hunting terri- stalled. To make progress in implementing able quotas—caught on in the global fish- tories, in which only family members could private property in areas of the world where ing industry? They would seem to be the hunt for beaver. For example, hunting ter- it is needed to promote economic develop- answer to overfishing and the dwindling of ritories would allow hunters to hunt at a ment, or avoid environmental degradation, marine fisheries worldwide. That is a ques- more leisurely pace, because they would we need to deepen our understanding of tion that drew Professor Katrina Wyman not have to compete with other hunters. In how private property develops. to write “From Fur to Fish: Reconsidering addition, the families who controlled terri- “From Fur to Fish” is divided into two the Evolution of Private Property,” which tories would have an incentive to husband parts. The first part discusses in largely was published in the New York University the beaver because they would know that theoretical terms what it means to take Law Review (April 2005). In it she examines if they did not shoot beaver on their own seriously the role of politics in property predominant economic theories of property territory this year, the beaver would be rights formation. The second part uses the rights formation, analyzes actual examples available next year when the price might be theoretical apparatus set out in the first to and, finally, focuses on politics as an actor higher. In short, as the standard economic explain a contemporary paradox: the failure that plays a much more important role than theory about why we have property pre- to establish private property rights in many economic hypotheses consider. The following dicts, the rise in the value of the beaver due marine fisheries notwithstanding the rapid is a summary of her paper. to the fur trade prompted the creation of a depletion of these fisheries in the past few property regime to govern the allocation of decades. The signs that marine fisheries ne of the first questions that prop- the beaver. are dwindling are everywhere: Some fish erty law professors often ask their In “From Fur to Fish,” I argue that the that commonly used to appear on grocery students is why they think that standard economic explanation for why store shelves or restaurant menus are now private property exists. For many we have private property neglects the per- hard to buy at all, or very costly. Grocery years, many legal academics influ- vasive role that governments now play in stores and restaurants are now much more enced by the work of economist creating private property. We need to build likely to be selling farmed fish, like Atlantic O Harold Demsetz have given roughly the on existing scholarship to reframe the stan- salmon, than they were 20 years ago, as wild same answer to that question: We have pri- dard stories that we tell about why private fish have vanished. Environmental groups vate property because we’ve implicitly made property exists to take seriously the role that sometimes pressure chefs not to stock cer- a decision that the benefits of private prop- governments play in establishing private tain endangered fish, like Chilean sea bass. erty are greater than the costs of establish- property in the modern world. We don’t live They also attempt to discourage consum- ing it. To illustrate the point, legal academics often invoke an example from anthropology that Demsetz helped to make famous. In the eighteenth century, beaver fur hats became fashionable in European capitals like London. Making these hats obviously required beaver fur, which fur traders increasingly started buying from indigenous peoples in North America, including peoples who lived in parts of modern-day Quebec and Labrador. According to some anthropologists, in the eighteenth century, the growing European demand for beaver fur induced the indigenous peoples who were supplying it to adopt a property regime for managing beaver. Before they encountered the fur traders, indigenous peoples in Quebec and Labrador apparently didn’t have a regime for allocating beaver among themselves—beaver hunters reportedly competed for beaver throughout the territory in which they hunted. As beavers became a more valuable commodity, though, indigenous peoples in the area saw

76 THE LAW SCHOOL AUTUMN 2006 But once we recognize the state’s role in the process of forming property rights, an increase in the price of a good becomes a much weaker predictor of the likelihood that private property will be created. That is because the political process through which private property increasingly is created is at least as sensitive to the distribution of profits from the higher prices as to the aggregate level of benefits from the higher prices. Imagine a new private property arrangement that promises sizable benefits for the group as a whole, such as an increase in the overall population of beavers that could be sold. The new arrangement nonetheless might not be implemented if the aggregate benefits would be spread thinly among numerous persons who individually would need to work hard at their own expense to implement the arrangement. “My father had a saying: ‘If you sell a man a fish, you’ll make My case study of marine fisheries a good living; if you teach a man to fish, you’re stupid.’” emphasizes why we need to rethink the standard economic explanation of why pri- © The New Yorker Collection 1992 Donald Reilly from cartoonbank.com. All Rights Reserved. cartoonbank.com. All Rights Reilly from Donald 1992 Collection Yorker New © The ers from buying fish whose populations are develop. I identify five hypotheses about vate property evolves in light of the role that dwindling by circulating pocket-size “fish why private property evolves—or does the state plays in creating property rights lists” that identify fish that consumers should not—after reviewing the literature on the and how we should go about reconceiving feel free to enjoy without guilt, as well as evolution of private property. In my paper the standard economic hypotheses. fish that they should avoid. According to the I then show how each of these five hypoth- For the past 60 years, the world’s oceans standard explanation of why private prop- eses is affected by factoring in the role of have been the subject of an enclosure erty evolves, this growing scarcity ought to governments in creating private property, movement. This enclosure movement has have induced us to develop private property and moving away from the idea that private progressed in a series of waves, much like rights in marine fisheries to stave off the property is created from the bottom up by the better-known enclosure of English com- depletion. But except in a few cases, private individuals through private contracts. mon lands between the fifteenth and nine- property arrangements have not developed Consider, for instance, one popular teenth centuries. In the first wave, countries in marine fisheries. The key to understand- hypothesis that is embedded in the famous began claiming national property rights ing this is appreciating the role that politics example that indigenous peoples devel- over ever-larger expanses of the oceans, plays in the formation of private property. oped hunting territories in response to including marine fisheries, after the end Once we better understand how politics the fur trade. According to the “increase of the Second World War. Then countries gets in the way, we can think of ways of containing the influence of politics that might The slow progress in implementing help us move more quickly to address the depletion of ocean fisheries—and many ITQs to address the problems in marine other environmental and economic problems at home and abroad. fisheries is a classic instance of politics The standard economic explanation for private property implicitly suggests that getting in the way of the introduction of private property is created from the bottom up, by private actors who negotiate private private property rights. property arrangements. Recognizing the role of the state in the formation of private in the price” hypothesis, private property began subdividing national property rights property means moving away from the idea rights develop after the price of a good rises, in fisheries domestically into smaller-scale that private property is the product of bot- because individuals are more interested in communal regimes in a second wave of tom-up contracting between private par- securing access to higher-priced goods. For enclosures. For over 30 years, economists ties. Governments do not act through con- example, scholars recounting the develop- and others have been advocating a third tracts—they act top-down, through much ment of the hunting territories tend to sug- wave of enclosure through the creation of a more complicated decision-making pro- gest that the increased demand for beaver form of private property rights, often called cesses, which, unlike contracting, do not furs raised the price that fur traders paid individual transferable quotas (ITQs). But require unanimity. indigenous peoples for beaver furs. In turn, to date, ITQs have not been implemented in Working largely within the standard eco- indigenous peoples are said to have nego- many marine fisheries. nomic framework for understanding private tiated the creation of hunting territories ITQs are similar to other property- property, legal academics and economists among themselves as the rise in the price based ideas for managing environmental have pointed to a number of factors as of beaver furs made it more desirable to resources, such as the marketable pollution influencing whether private property will secure access to stable supplies of beavers. permits that the U.S. implemented in 1995

AUTUMN 2006 THE LAW SCHOOL 77 FACULTY FOCUS

to reduce acid rain, and the transferable in the way of the introduction of private be implemented in U.S. fisheries. That is development rights that cities such as New property rights. The cumbersome deci- because the mere existence of a cumber- York use to regulate use of air space. The first sion-making process is a significant deter- some process does not explain why it has step in implementing an ITQ program is to rent to implementing ITQs in the United been used to delay change. It is easier to cap the amount of a fish species that can be States. For instance, implementing ITQs get a handle on the reasons why the pro- harvested from a particular area. For exam- in most marine fisheries usually requires cess is used in this way if we think of prop- ple, a regulatory agency might begin by stat- getting the agreement of what are known erty rights formation as a political exercise. ing that only 100 tons of flounder could be as regional fishery management councils. For example, one reason that the decision- fished in a given year from a particular area These councils were established in 1976, making process has been used to delay the in the Atlantic Ocean. The second step is to when Congress extended U.S. jurisdiction implementation of ITQs is that establishing allocate rights adding up to this cap among over marine fisheries out to 200 miles from ITQs involves allocating wealth among dif- fishers. Fishers then are allowed to trade shore. The councils are made up mostly of ferent interest groups. In particular, before these rights, to permit the more efficient representatives of commercial and recre- an ITQ program can be introduced, it’s nec- fishers to buy rights from other fishers to ational fishing interests, such as fishermen, essary to distribute rights among different capture more fish. The introduction of ITQs processors and charter boat operators. The groups of fishers who necessarily want to is a significant event in a fishery. Unlike result is that ITQ programs usually cannot maximize their own share of the rights allo- other regimes for managing fisheries, ITQs succeed without the agreement of many cated up front. give fishers entitlements to specific shares of the powerful players in the fisheries These days it seems like we’re sur- of the fish. As a result, fishers begin the sea- involved. Furthermore, even if a council rounded by debates about whether to son knowing that they are entitled to har- gives its go-ahead, any interests who object establish or rearrange property rights. We vest a portion of the fishery, and don’t have to ITQs can appeal to members of Congress, discuss whether to establish property rights to race each other to capture as much of the the courts and the federal Secretary of in greenhouse gas emissions in order to fish in the sea as they can before the fish- Commerce, who also must approve the address global warming. We consider how ing season is over. Ending the competition establishment of ITQs. Notably, in the past copyright law should be defined in light between fishers that afflicts many fisheries decade, federal senators from coastal states of the digital revolution. We contemplate has a number of benefits. For example, it such as Alaska’s Senator Ted Stevens—the changing the rights of patent-holders to means fishers have less incentive to invest most powerful person in U.S. fisheries— facilitate innovation. While the standard in fancy boats and fishing technology, and have shown themselves willing to interfere economic theories of property rights yield consequently less need to press regulators with council decision-making to placate rich insights, we cannot fully appreciate to increase the amount of fish that can be local fishing interests. these debates about property until we rec- caught each year to pay off loans to buy addi- Of course, the cumbersome decision- ognize that property rights fundamentally tional equipment. Lowering the pressure on making structure for introducing ITQs is not are a creation of governments, and not just the resource in turn may give depleted fish the only reason why they have been slow to the product of economic forces. ■ populations time to recover. Also, ending the competition out on the water may make fishing a safer job. In places like Alaska, fishing is notoriously dangerous, because fishermen go out on the choppy seas in all kinds of weather. When fishermen have PLAN FOR guaranteed rights to shares of the allowable harvest, they are more likely to play it safe, and stay home when the weather is bad THE FUTURE because they know that the fish still will be there for them to catch on the next day that A planned gift can help you: the weather is better. Given the severe depletion of many → Generate a high and secure income for life marine fisheries, and the benefits of ITQs, → Realize a substantial income tax deduction the standard economic theory about when → Reduce the tax burden on your estate private property rights develop suggests that → Avoid large capital gains taxes ITQs should be widespread in marine fisheries. But relatively few U.S. marine fisheries Bequests, life-income gifts, are governed by ITQs. Indeed, the United charitable trusts, and gifts of States surprisingly has historically lagged real estate or life insurance behind its northern Canadian neighbor in can benefit you while at the implementing ITQs, even though the two same time supporting the countries share many marine fisheries, and Law School’s mission. Canada usually is viewed as more resistant to property and marketlike mechanisms for To discuss these options, contact addressing a range of public policy prob- Marsha Metrinko at (212) 998-6485 lems, from pollution to health care. or [email protected]. The slow progress in implementing ITQs to address the problems in marine fisheries is a classic instance of politics getting

78 THE LAW SCHOOL AUTUMN 2006 Hershkoff, Helen Good Reads Civil Procedure: Cases and By the full-time, visiting, global Materials. 9th edition. St. and library faculty Paul: Thomson West, 2005 January 1, 2005 through December 31, 2005. (with Jack Friedenthal, Arthur Miller and John (Short pieces have been omitted.) Sexton). Hertz, Randy A. Bell, Derrick A. Books Federal Habeas Corpus The Derrick Bell Reader. Adler, Barry E. Practice and Procedure. New York: New York Uni- Foundations of Bankruptcy 5th edition. Newark: versity Press, 2005 (edited Law. New York: Founda- Lexis-Nexis/Matthew by Richard Delgado and tion Press, 2005. Bender, 2005 (with James S. Jean Stefancic). Liebman). Alston, Philip G. Billman, Brookes D. Editor. Human Rights and Herz, Michael Federal Tax Practice and The Derrick Bell Reader Development: Towards Editor. A Guide to Judicial Procedure: Cases, Materi- Edited by Richard Delgado Mutual Reinforcement. and Political Review of als and Problems. St. Paul: and Jean Stefancic New York: Oxford Univer- Federal Agencies. Chicago: West Publishing, 2005 (New York University Press) sity Press, 2005 (with Mary American Bar Association, (with Camilla E. Watson). 2005 (with John F. Duffy). Robinson). For more than four decades Derrick Bell’s provocative Chase, Oscar G. Editor. Labour Rights as Hulsebosch, Daniel and penetrating writings have shed light on issues of Law, Culture, and Ritual: Human Rights. New York: Constituting Empire: New race and class. In The Derrick Bell Reader, coeditors Disputing Systems in Cross- Richard Delgado and Jean Stefancic have assembled Oxford University Press, York and the Transforma- Cultural Context. New a sweeping cross section of Bell’s work published 2005. tion of Constitutionalism York: New York University between 1972 and 2004. This collection, culled from in the Atlantic World, Laying Down the Founda- Press, 2005. more than 100 articles and 10 books, features essays, tion for Children’s Rights: 1664–1830. Chapel Hill: poetry and allegories, as well as Bell’s now-famous An Independent Study Choi, Stephen J. University of North Caro- 1990 resignation letter from Harvard Law School in of Some Key Legal and Securities Regulation: lina Press, 2005. which he decried the absence of a woman of color among the tenured faculty (a situation that remained Institutional Aspects of the Cases and Analysis. New Issacharoff, Samuel York: Foundation Press, the case until Lani Guinier joined the faculty in 1998). Impact of the Convention Civil Procedure. New York: 2005 (with A.C. Pritchard). Organized into 15 themed chapters, the book covers on the Rights of the Child. Foundation Press, 2005. black nationalism, affirmative action, race and class, Florence, Italy: UNICEF Estreicher, Samuel historical revisionism, academic politics and ethi- Jacobs, James B. Innocenti Research Centre, Editor. Cross-Border cal lawyering. Bell is “a celebrated maverick” whose Mobsters, Unions, and 2005 (with John Tobin). Human Resources, Labor “work is among the most frequently cited within the Feds: The Mafia and the Editor. Monitoring Fun- and Employment Issues: legal academy—a significant accomplishment given American Labor Move- the iconoclastic positions he often embraces,” says damental Rights in the Proceedings of the New ment. New York: New York Guinier, the Bennett Boskey Professor of Law at Har- E.U.: The Contribution of York University 54th University Press, 2005. vard Law School. “The Derrick Bell Reader reminds us the Fundamental Rights Annual Conference on that Bell traverses the world of ideas with a practitio- Agency. Oxford: Hart, 2005 Labor. New York: Kluwer López, Gerald P. ner’s know-how, a lawyer’s aptitude for controversy, (with Olivier de Schutter). Law International, 2005 The Center for Community a professor’s appreciation of rigor, a rock solid integ- Editor. Non-State Actors (with Andres P. Morriss). Problem Solving Reentry rity, a dedication to speaking truth as he sees it and Guide. New York: The Cen- an abiding passion for justice.” and Human Rights. New Feldman, Noah ter for Community Prob- York: Oxford University Divided by God: America’s lem Solving Press, 2005. Press, 2005. Church-State Problem— Miller, Arthur Disarming Manhood: Roots Reports of the Special Rap- and What We Should Do Lowenfeld, Andreas F. Civil Procedure: Cases and of Ethical Resistance. Ath- porteur on Extrajudicial, About It. New York: Farrar, International Litigation Materials. 9th edition. St. ens, OH: Ohio University/ Summary, or Arbitrary Straus & Giroux, 2005. and Arbitration: Selected Paul: Thomson/West, 2005 Swallow Press, 2005. Treaties, Statutes and (with Jack Friedenthal, Executions, to the U.N. First, Harry Schenk, Deborah H. Commission on Human Rules. 3rd edition. St. Paul: Helen Hershkoff and John Editor. Antitrust: Statutes, Federal Income Taxation: Rights. Geneva: United Thomson/West, 2005. Sexton). Treaties, Regulations, Principles and Policies. 5th Nations, 2005. Guidelines, Policies. New Lowenfeld on International Reid, John P. edition. New York: Foun- Balkin, Jack York: Foundation Press, Arbitration: Collected The Ancient Constitution dation Press, 2005 (with Editor. What Roe v. Wade 2005 (with Darren Bush Essays over Three Decades. and the Origins of Anglo- Michael J. Graetz). Huntington, NY: Juris American Liberty. De Kalb: Should Have Said: The and John Flynn). Schulhofer, Stephen J. Publishing, 2005. Northern Illinois Univer- Nation’s Top Legal Experts Gillers, Stephen Rethinking the Patriot Act: Rewrite America’s Most sity Press, 2005. Regulation of Lawyers: Merry, Sally Keeping America Safe and Controversial Decision. Problems of Law and Eth- Human Rights and Gender Richards, David A.J. Free. New York: Century New York: New York Uni- ics. 7th edition. New York: Violence: Translating Inter- The Case for Gay Rights: Foundation Press, 2005. versity Press, 2005. national Law into Local From Bowers to Lawrence Aspen Law & Business, Sexton, John Justice. Chicago: University and Beyond. Lawrence: Been, Vicki L. 2005. Civil Procedure: Cases and of Chicago Press, 2005. University Press of Kansas, Land Use Controls: Cases Guggenheim, Martin F. Materials. 9th edition. St. and Materials. 3rd edition. 2005. What’s Wrong with Chil- Paul: Thomson West, 2005 New York: Aspen Publish- dren’s Rights. Cambridge: (with Jack Friedenthal, ers, 2005 (with Robert C. Harvard University Press, Helen Hershkoff and Ellickson). 2005. Arthur Miller).

AUTUMN 2006 THE LAW SCHOOL 79 FACULTY FOCUS

Sitkoff, Robert H. Steines, John P., Jr. Chapters and “The ‘Not-a-Cat’ Syndrome: Davis, Kevin E. Wills, Trusts and Estates. International Aspects of Supplements Can the International “The Financial War on 7th edition. New York: U.S. Income Taxation. 2nd Human Rights Regime Terrorism,” in Global Anti- Alston, Philip G. Aspen Publishers, 2005 edition. New York: John Accommodate Non-State Terrorism Law and Policy. “Addressing the Chal- (with Jesse Dukeminier, Steines, 2005. Actors?” in Non-State Michael Hor, Victor Ram- lenges Confronting the Stanley M. Johanson and Actors and Human Rights. raj and Kent Roach, editors. Stone, Geoffrey E.U. Fundamental Rights James Lindgren). Philip Alston, editor. New Cambridge: Cambridge Editor. Constitutional Law. Agency,” in Monitoring York: Oxford University University Press, 2005. Skolnick, Jerome H. 5th edition. New York: Fundamental Rights in the Press, 2005. Criminal Justice: Introduc- Aspen Publishers, 2005 E.U.: The Contribution of Davis, Peggy C. tory Cases and Materials. (with Pamela S. Karlan, the Fundamental Rights Arlen, Jennifer H. “Experiential Legal Educa- 6th edition. New York: Louis M. Seidman, Cass Agency. Philip Alston and “Beyond Master-Servant: tion in the United States,” Foundation Press, 2005 R. Sunstein and Mark V. Olivier de Schutter, editors. A Critique of Vicarious in Social Responsibility (with Malcolm Freeley, Tushnet). Oxford: Hart, 2005. Liability,” in Exploring Tort and Legal Education. Candace McCoy and John Law. M. Stuart Madden, Takashi Maruta, editor. van Raad, Kees “Assessing the Strengths Kaplan). editor. Cambridge: Cam- Osaka: Kwansei Gakuin Materials on International and Weaknesses of the bridge University Press, Press, 2005. Family in Transition. 13th & EC Tax Law. 5th edition. European Social Charter’s 2005 (with W. Bentley edition. Boston: Pearson Leiden: International Tax Supervisory System,” in Dreyfuss, Rochelle C. MacLeod). Allyn & Bacon, 2005 (with Center, 2005. Social Rights in Europe. “Preserving the Public Arlene S. Skolnick). Gráinne de Búrca and Balkin, Jack Domain of Science in Bruno de Witte, editors. “Revised Opinions in Roe International Law,” in New York: Oxford Univer- v. Wade and Doe v. Bolton,” International Public Goods sity Press, 2005. in What Roe v. Wade and Transfer of Technology Law, Culture, and Ritual: Under a Globalized Intel- “The Contribution of the Should Have Said: The Disputing Systems in lectual Property Regime. E.U.’s Fundamental Rights Nation’s Top Legal Experts Keith E. Maskus and Cross-Cultural Context Agency to the Realisation Rewrite America’s Most Jerome H. Reichman, edi- By Oscar G. Chase of Economic and Social Controversial Decision. tors. New York: Cambridge (New York University Press) Rights,” in Monitoring Jack Balkin, editor. New University Press, 2005 Fundamental Rights in the York: New York University (with Graeme Dinwoodie). The relationships among systems of law and the spe- E.U.: The Contribution of Press, 2005. cific social, cultural and political contexts in which they the Fundamental Rights “Roe v. Wade—An Engine First, Harry develop are the subject of this new book by Oscar Agency. Philip Alston and of Controversy,” in What “Online Music,” in Network Chase, the Russell D. Niles Professor of Law and codi- Olivier de Schutter, editors. Access, Regulation and rector of the Dwight D. Opperman Institute of Judicial Roe v. Wade Should Have Oxford: Hart, 2005. Administration. Drawing on comparative legal schol- Said: The Nation’s Top Antitrust. Diana L. Moss, editor. New York: Rout- arship and the classic ethnography of Evans-Pritchard, “Human Rights and Public Legal Experts Rewrite ledge, 2005. Chase argues that culture deeply impacts the way in Goods: Education as a America’s Most Controver- which legal disputes are resolved and that a society’s Fundamental Right in sial Decision. Jack Balkin, Fox, Eleanor M. processes of dispute settlement are grounded in its India,” in Human Rights editor. New York: New York “Can Antitrust Policy Pro- assumptions and its established ways of life. Armed University Press, 2005. with this insight, he explores the details and ramifi- and Development: Towards tect the Global Commons cations of modern American civil procedure. “The Mutual Reinforcement. Cantarella, Eva from the Excesses of IPRs?” Philip Alston and Mary result,” says David Garland, the Arthur T. Vanderbilt “Gender, Sexuality and in International Public Robinson, editors. New Professor of Law as well as a professor of sociology, Law,” in Cambridge Com- Goods and Transfer of “is a cultural analysis of law that adds an important York: Oxford University panion to Ancient Greek Technology Under a Global- new dimension to our understanding of litigation, Press, 2005 (with Nehal Law. Michael Gagarin, ized Intellectual Property legal process and the rules of evidence—as well as a Bhuta). Regime. Keith E. Maskus new depth of legal engagement for social theories of editor. Cambridge: Cam- and Jerome H. Reich- culture and ritual. This is a delightful book that brings “Introduction: The Chal- bridge University Press, together the theory of cultural analysis with the prac- lenges of Ensuring the 2005. man, editors. New York: tice of civil procedure and, in the process, transforms Mutuality of Human Cambridge University Choi, Stephen J. our understanding of both.” Rights and Development Press, 2005 (with Graeme Securities Regulation: Endeavours,” in Human Dinwoodie). Statutory Supplement. New Rights and Development: Garland, David W. York: Foundation Press, Towards Mutual Reinforce- “Beyond the Culture of 2005 (with A.C. Pritchard). ment. Philip Alston and Control,” in Managing Mary Robinson, editors. Cunningham, Nöel B. Modernity: Politics and the New York: Oxford Univer- “Story of Tufts: The ‘Logic’ Culture of Control. Matt sity Press, 2005 (with Mary of Taxing Nonrecourse Matravers, editor. New Robinson). Transactions,” in Business York: Routledge, 2005. “Labour Rights as Human Tax Stories. Steven A. Bank “Postcards from the Edge: Rights: The Not So Happy and Kirk J. Stark, editors. Photographs of Torture State of the Art,” in Labour New York: Foundation in Abu Ghraib and the Rights as Human Rights. Press, 2005 (with Laura E. American South,” in Krimi- Philip Alston, editor. New Cunningham). nalitats-Geschichten: Fur York: Oxford University Henner Hess. S. Scheerer, Press, 2005. editor. Hamburg: Univer- sity of Hamburg, 2005.

80 THE LAW SCHOOL AUTUMN 2006 Gillette, Clayton Kornhauser, Lewis A. Nelson, William E. Municipal Debt Finance “Economic Rationality in “The Historical Founda- Law, 2005 Cumulative the Analysis of Legal Rules tions of the American Supplement. New York: and Institutions,” in The Judiciary,” in The Judicial Aspen Law & Business. Blackwell Guide to the Phi- Branch. Kermit Hall and losophy of Law and Legal Kevin McGuire, editors. Guggenheim, Martin F. Theory. Martin P. Golding New York: Oxford Univer- “When Should Courts Be and William A. Edmund- sity Press, 2005. Empowered to Make Child son, editors. Malden, MA: Rearing Decisions?” in A Neuborne, Burt Blackwell, 2005. Handbook of Divorce and “Harisiades v. Shaugh- Custody: Forensic, Develop- Kumm, Mattias nessy: A Case Study in the mental and Clinic Perspec- The European Constitu- Vulnerabilty of Resident tives. Linda Gunsberg and tion: The Rubicon Crossed? Aliens,” in Immigration Paul Hymowitz, editors. Oslo: ARENA, 2005 (with Stories. David A. Martin Hillsdale, NJ: The Analytic Erik Oddvar Eriksen, John and Peter H. Schuck, edi- Press, 2005. Erik Fossum and Augustin tors. New York: Foundation Justice in Robes Menendez). Press, 2005. Holmes, Stephen By Ronald Dworkin “Al Qaeda, September 11, “What Is So Special About Pildes, Richard H. (Belknap Press) 2001,” in Making Sense of Constitutional Rights in “Between Civil Libertarian- Suicide Missions. Diego Private Litigation? A Com- ism and Executive Unilat- In this new collection of essays, renowned philoso- Gambetta, editor. New parative Analysis of the eralism: An Institutional pher Ronald Dworkin, the Frank Henry Sommer York: Oxford University Function of State Action Process Approach to Professor of Law, explicates his position that morality and law are—and should be—inextricably bound Press, 2005. Requirements and Indirect Rights During Wartime,” Effect,” inThe Constitu- together. As he makes his case, Dworkin decon- in The Constitution in structs competing schools of thought such as legal Issacharoff, Samuel tion in Private Relations: Wartime: Beyond Alarm- positivism, pragmatism, value pluralism and con- “Between Civil Libertarian- Expanding Constitution- ism and Complacency. stitutional originalism, and takes on other theorists ism and Executive Unilat- alism. Andras Sajo and Mark V. Tushnet, editor. such as Richard Posner, Cass Sunstein, Isaiah Berlin eralism: An Institutional Renata Uitz, editors. Durham: Duke University and Antonin Scalia. Dworkin holds nothing back. He Process Approach to Utrecht: Eleven Interna- Press, 2005 (with Samuel argues that Posner’s “form of pragmatism comes to Rights During Wartime,” tional Publishing, 2005 Issacharoff). nothing”; that “Sunstein’s counsel of judicial absti- in The Constitution in War- (with Victor Ferreres nence, if it were feasible at all, would produce not The Law of Democracy: time: Beyond Alarmism Comella). more democracy but the paralysis of a process Legal Structure of the Polit- and Complacency. Mark V. essential to democracy”; that Berlin’s arguments Maguigan, Holly ical Process. Revised 2nd Tushnet, editor. Durham: about value pluralism involve a “very broad claim” “Explaining Without edition. 2005 Supplement. that his writings do not sustain; and that “Scalia Duke University Press, Pathologizing,” in 22nd New York: Foundation wants to be seen to embrace fidelity [to the text of 2005 (with Richard Pildes). Criminal Law Symposium. Press (with Pamela Karlan the Constitution], but he ends by rejecting it.” The Law of Democracy: Mechanicsburg: Penn- and Samuel Issacharoff). Nicos Stavropoulos, the University Lecturer in Legal Theory at the University of Oxford, says that Legal Structure of the Polit- sylvania Bar Association, Revesz, Richard L. Justice in Robes is “brimming with philosophical ical Process. Revised 2nd 2005 (with Sue Osthoff). edition. 2005 Supplement. Environmental Law and imagination and political insight. It displays Dwor- kin’s unusual facility in discussing profound matters New York: Foundation Malamud, Deborah Policy: Statutory and “The Story of Steele v. Regulatory Supplement. in non-technical, lucid and elegant prose.” Publish- Press (with Pamela Karlan ers Weekly agrees, saying: “This is a serious, diffi- Louisville & Nashville 2005-06 Edition. New York: and Richard Pildes). cult book that succeeds in explaining what Dworkin Railroad: White Unions, Foundation Press. “Legal Responses to believes, what the other theorists argue, and why it Black Unions, and the Conflicts of Interest,” in Rubinfeld, Daniel matters who is right.” Struggle for Racial Justice Conflicts of Interest: Chal- “The Strategic Use of Pat- on the Rails,” in Labor Law lenges and Solutions in Law, ents: Implications for Anti- Stories. Laura J. Cooper Tyler, Tom R. Weiler, Joseph H.H. Medicine and Public Policy. trust,” in Antitrust, Patents and Catherine L. Fisk, edi- “Managing Conflicts of “Les droits fondamentaux et Max H. Bazerman, George and Copyright: E.U. and tors. New York: Foundation Interest within Organiza- les limites fondamentales: Loewenstein and Don A. U.S. Perspectives. Francois Press, 2005. tions: Does Activating normes communes et Moore, editors. New York: Leveque and Howard Shel- Social Values Change the valeurs antagoniques dans Morawetz, Nancy Cambridge University anski, editors. Northamp- Impact of Self-Interest on la protection des droits Press, 2005. “INS v. St. Cyr: The Cam- ton, MA: Edward Elgar Behavior?” in Conflicts of de l’homme,” in Quelle paign to Preserve Court Publishing Ltd., 2005 (with Kingsbury, Benedict W. Interest: Challenges and identité pour l’Europe? Le Review and Stop Retroac- Robert Maness). “Ascriptive Groups and the Solutions in Law, Medicine multiculturisme à l’épreuve. tive Deportation Laws,” in Problems of the Liberal Silberman, Linda J. and Public Policy. Max Riva Kastoryano, editor. Immigration Stories. David NGO Model of Interna- “Enforcement and Recogni- H. Bazerman, George Paris: Les Presses Sciences A. Martin and Peter H. tional Civil Society,” in tion of Foreign Country Loewenstein and Don A. Po, 2005. Schuck, editors. New York: Global Justice and the Judgments in the United Moore, editors. New York: Foundation Press, 2005. “European Communi- Bulwarks of Localism. States,” in International Cambridge University ties—Trade Description Christopher L. Eisgruber Business Litigation & Arbi- Press, 2005. of Sardines: Textualism and Andras Sajo, editors. tration, 2005. John Fellas, and Its Discontent,” in The Boston: Martinus Nijhoff, editor. New York: Practis- WTO Case Law of 2002. 2005. ing Law Institute, 2005. Henrik Horn and Petros C. Mavroidis, editors. Cambridge: Cambridge University Press, 2005.

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“Mutual Recognition, Wishnie, Michael “The Story of Hoffman Auerbach, Alan Benvenisti, Eyal Functional Equivalence “Hoffman Plastic Com- Plastic Compounds, Inc. v. “The Case for Open-Market “Implementing the Law and Harmonization in the pounds, Inc. v. NLRB: The NLRB: Labor Rights With- Purchases in a Liquidity by Impartial Agents: An Evolution of the European Rules of the Workplace out Remedies for Undocu- Trap.” 95 The American Exercise in Tort Law and Common Market and the for Undocumented mented Immigrants,” in Economic Review 110 (2005). International Law.” 6 Theo- WTO,” in The Principles Immigrants,” in Immigra- Labor Law Stories. Laura “Comments on John retical Inquiries in Law 1 of Mutual Recognition in tion Law Stories. David J. Cooper and Catherine B. Shoven and John (2005) (with Ariel Porat). the European Integration A. Martin and Peter H. L. Fisk, editors. New York: Whalley’s ‘Irving Fisher’s “The Interplay between Process. Fiorella Padoa- Schuck, editors. New York: Foundation Press, 2005 Spendings (Consumption) Actors as a Determinant of Schioppa, editor. New York: Foundation Press, 2005 (with Catherine L. Fisk). Tax in Retrospect.’” 64 the Evolution of Admin- Palgrave Macmillan, 2005. (with Catherine L. Fisk). The American Journal of istrative Law in Interna- Articles Economics and Sociology tional Institutions,” 68 237 (2005). Law and Contemporary Adler, Amy M. Problems 319 (2005). Mobsters, Unions, and Feds: “Girls! Girls! Girls! The “Dynamic Scoring: An The Mafia and the American Supreme Court Confronts Introduction to the Issues.” Bruner, Jerome Labor Movement the G-String.” 80 New York 95 The American Economic “The Reality of Fiction.” 41 Review 421 (2005). By James B. Jacobs University Law Review 101 McGill Journal of Educa- (2005). (New York University Press) Bar-Gill, Oren tion 55 (2005). Adler, Barry E. “Credible Coercion.” 83 Cameron, Charles M. In his 15th book, James Jacobs, the director of the “The Accidental Agent.” Texas Law Review 717 “Decision Rules in a NYU School of Law’s Center for Research in Crime 2005 University of Illinois (2005) (with Omri Ben- Judicial Hierarchy.” 161 and Justice, and Chief Justice Warren E. Burger Pro- Law Review 65 (2005). Shahar). Journal of Institutional fessor of Constitutional Law and the Courts, focuses on the relationship between organized crime and “Bankruptcy Primitives.” “A Marketplace for Ideas?” and Theoretical Economics organized labor, arguing that the Mob’s infiltration 12 American Bankruptcy 84 Texas Law Review 395 264 (2005) (with Lewis A. of unions has adversely affected the entire U.S. labor Institute Law Review 219 (2005) (with Gideon Par- Kornhauser). movement. How did this “illicit marriage” between (2005). chomovsky). Chase, Oscar G. the Mafia and labor come to be? According to Jacobs, “Pricing Legal Options: the violent confrontations between employees and Allen, William T. Book Review. “Legal Aca- employers in the first decades of the 20th century, a “When the Existing Eco- A Behavioral Perspective.” demics: Culture and Identi- period in which many labor unions were struggling nomic Order Deserves a 1 Review of Law & Econom- ties by Fiona Cownie.” 55 to gain a foothold, provided a perfect atmosphere Champion: The Enduring ics 203 (2005). Journal of Legal Education for professional criminals to offer their brutal ser- Relevance of Martin Lip- “Public Policy with Endog- 278 (2005). vices and gain disproportionate union influence in ton’s Vision of the Corpo- enous Preferences.” 7 the process. The government turned a blind eye to Choi, Stephen J. Journal of Public Economic this relationship for years, until the disappearance of rate Law.” 60 The Business “Mr. Justice Posner? Jimmy Hoffa made the issue front page fodder. Pub- Lawyer 1383 (2005) (with Theory 841 (2005) (with Unpacking the Statistics.” lishers Weekly calls Jacobs’s examination of the rela- Leo E. Strine Jr.). Chaim Fershtman). 61 New York University tively recent use of the RICO law to bring dirty unions Alston, Philip G. Barkow, Rachel E. Annual Survey of American under the control of a federally appointed indepen- “The Darfur Commission “Administering Crime.” 52 Law 19 (2005) (with G. Mitu dent trustee “especially valuable.” Jeremy Travis ’82, Gulati). the president of John Jay College of Criminal Justice as a Model for Future UCLA Law Review 715 (2005). at the City University of New York and former direc- Responses to Crisis Situa- “Federalism and the Politics “Which Judges Write Their tor of the National Institute of Justice, goes one step tions.” 3 Journal of Interna- of Sentencing.” 105 Colum- Opinions (and Should We further, saying that Mobsters, Unions, and Feds is “a tional Criminal Justice 600 bia Law Review 1276 (2005). Care)?” 32 Florida State wake-up call, an encouragement to the academic (2005). University Law Review “Our Federal System of community to pay attention to the overlap between 1077 (2005) (with G. Mitu “Facing Up to the Com- Sentencing.” 58 Stanford politics, organized crime and the labor movement Gulati). and how the intertwining of those sectors has pro- plexities of the ILO’s Core Law Review 119 (2005). foundly influenced the direction of each.” Labour Standards Agenda.” Davis, Kevin E. Been, Vicki L. 16 European Journal of “Regulation of Technology “Impact Fees and Housing International Law 467 Transfer to Developing Affordability.” 8 Cityscape (2005). Countries: The Relevance 139 (2005). “Ships Passing in the of Institutional Capacity.” Night: The Current State “Residential Segregation: 27 Law & Policy 6 (2005). Vouchers and Local Gov- of the Human Rights and Dorsen, Norman Development Debate Seen ernment Monopolists.” 23 “The Relevance of Foreign Through the Lens of the Yale Law & Policy Review Legal Materials in U.S. Millennium Development 33 (2005). Constitutional Cases: A Goals.” 27 Human Rights Bell, Derrick A. Conversation Between Quarterly 755 (2005). “Keynote Address.” 29 New Justice Antonin Scalia and Arlen, Jennifer H. York University Review of Justice Stephen Breyer.” 3 “Torts, Expertise and Law and Social Change 633 International Journal of Authority: Liability of Phy- (2005). Constitutional Law 519 sicians and Managed Care “2004 Hugo L. Black Lec- (2005). Organizations.” 36 RAND ture: How Would Justice Journal of Economics 494 Hugo Black Have Written (2005) (with W. Bentley Brown v. Board?” 56 MacLeod). Alabama Law Review 851 (2005).

82 THE LAW SCHOOL AUTUMN 2006 Dreyfuss, Rochelle C. “Rebuilding the Law of the “The Role of Presumptions “The ALI Principles on Workplace in an Era of Self- in International Tribunals.” Transnational Intellec- Regulation.” 105 Columbia 4 The Law and Practice of tual Property Disputes: Law Review 319 (2005). International Courts and Why Invite Conflicts?” 30 “Working Together: Cross- Tribunals 197 (2005) (with Brooklyn Journal of Inter- ing Color Lines at Work.” Peter Prows). national Law 819 (2005). 46 Labor History 79 (2005). Friedman, Barry Dworkin, Ronald Feldman, Noah “The Politics of Judicial “Letture e riletture—Corte Review.” 84 Texas Law “The Democratic Fatwa: Suprema e garanzie nel Review 257 (2005). Islam and Democracy in trattamento dei terroristi.” the Realm of Constitu- Garland, David W. 25 Quaderni costituzionali tional Politics.” 58 Okla- “Capital Punishment and 905 (2005). homa Law Review 1 (2005). American Culture.” 7 Pun- “Responses aux articles.” 59 “Imposed Constitutional- ishment and Society 347 Revue Internationale de ism.” 37 Connecticut Law (2005) (reprinted in Chi- Philosophie 435 (2005). Review 857 (2005). nese translation in Peking The Case for Gay Rights: Ebke, Werner University Law Journal, vol. From Bowers to Lawrence Fennell, Lee 6, 2005). “Die Unabhängig- and Beyond keit des gesetzlichen “Revealing Options.” 118 “Penal Excess and Surplus Abschlussprüfers: Absolute Harvard Law Review 1399 Meaning: Public Torture By David A.J. Richards Ausschlussgründe und (2005). Lynchings in 20th Century (University Press of Kansas) ihre Auswirkungen auf den Ferrarini, Guido America.” 39 Law and Soci- “America is in transition between patriarchal and Prüfungsvertrag—Zugleich ety Review 793 (2005). “Contract Standards and democratic culture, and gay rights is at the cutting Besprechung der Entsche- the Markets in Financial Geistfeld, Mark edge of this transition, showing how far we have idung BGH WM 2004, 1491 Instruments Directive “Constitutional Tort come and how far we have yet to go,” writes David A. (K. of America Inc.).” 34 (MiFID).” 1 European Reform.” 38 Loyola of Los J. Richards in the preface to The Case for Gay Rights: Zeitschrift fur Unternehm- Review of Contract Law 19 Angeles Law Review 1093 From Bowers to Lawrence and Beyond. Richards, the Edwin D. Webb Professor of Law and a prominent ens—und Gesellschaftsrecht (2005). (2005). (ZGR) 894 (2005) (with constitutional scholar, examines the history and evo- Fox, Eleanor M. “Malpractice Insurance and Boris Paal). lution of the gay rights movement, showing how the “Extraterritoriality in the the (Il)legitimate Interests early movement was facilitated by liberalism and by “Editorial—Kleine und Age of Globalization; of the Medical Profession growing judicial recognition of the constitutional mittlere Unternehmen im Conflict and Comity in the in Tort Reform.” 54 DePaul rights of minorities and women after World War II. Aufwind der Globalisier- Age of Empagran.” 2005 1 Law Review 439 (2005). He goes on to critique Supreme Court cases from ung.” 104 Zeitschrift für the past two decades that have proved crucial to the Antitrust Report 3 (2005). vergleichende Rechtswis- “Necessity and the Logic of evolution of gay rights, including Bowers v. Hardwick, senschaft, einschliesslich “Is There Life in Aspen after Strict Liability.” Issues in Romer v. Evans and Lawrence v. Texas, and covers der ethnologischen Rechts- Trinko? The Silent Revolu- Legal Scholarship Article topics such as a constitutional right to privacy, same- forschung 1 (2005). tion of Section 2 of the 5 (2005) (available at www. sex marriage and psychology. Richards, the author Sherman Act.” 73 Antitrust bepress.com/ils). of 2004’s Disarming Manhood: The Roots of Ethical “Entscheidungen—BGH, Law Journal 3 (2005). Resistance, also details his own struggle as a gay man, 13.10.2004 - I ZR 245/01 Gillers, Stephen hoping that “structuring my argument as a mapping - Zum Begriff des ‘genuine “Remedies and the Courage “Free the Lawyers: A Pro- of personal and constitutional law history will bring link’ bei der Anerken- of Convictions in a Global- posal to Permit No-Sue alive to the reader the roles that developments in nung US-amerikanischer ized World: How Global- Promises in Settlement constitutional law play in the lives of Americans.” Gesellschaften.” 60 Juris- ization Corrupts Relief.” Agreements.”18 George- According to the Law and Politics Book Review, he “argues persuasively” and succeeds. tenzeitung 298 (2005). 80 Tulane Law Review 571 town Journal of Legal Eth- “The European Conflict-of- (2005). ics 291 (2005) (with Richard Corporate-Laws Revolu- “A Tale of Two Jurisdictions W. Painter). “Voting with Your Hands: Hershkoff, Helen tion: Überseering, Inspire and an Orphan Case: Anti- Gillette, Clayton Direct Democracy in Art and Beyond.” 16 Euro- trust, Intellectual Property “Judge Fuchsberg’s Levit- “Appointing Special Mas- Annexation.” 78 Southern pean Business Law Review and Refusals to Deal.” 28 town Dissent: The Evolving ters to Evaluate the Sugges- California Law Review 835 9 (2005). Fordham International Right to an Adequate tiveness of Child-Witness (2005). Law Journal 952 (2005). Education.” 68 Albany Law Estreicher, Samuel Interview: A Simple Solu- Review 381 (2005). Golove, David “Assessing the Case for Franck, Thomas M. tion to a Complex Problem.” “United States: The Bush “The Power of Stories: Inter- Employment Arbitration: “The Fervent Imagination 49 Saint Louis University Administration’s ‘War on sections of Law, Culture A New Path for Empirical and the School of Hard Law Journal 499 (2005). Terrorism’ in the Supreme and Literature: Celebrat- Research.” 57 Stanford Knocks.” 16 European “The Conditions of Interlo- Court.” 3 International ing the 400th Anniversary Law Review 1557 (2005) Journal of International cal Cooperation.” 21 Journal of Constitutional of the Tale of Dick Witting- (with David Sherwyn and Law 343 (2005). Journal of Law & Politics ton and His Cat.” 12 Texas Michael Heise). Law 128 (2005). “Humanitarian and Other 365 (2005). Wesleyan Law Review 67 Guggenheim, Martin F. Estlund, Cynthia Interventions.” 43 Colum- “Kelo and the Local Political (2005). “Justice Denied: Delays in “Putting Grutter to Work: bia Journal of Transna- Process.” 34 Hofstra Law Resolving Child Protec- Herz, Michael Diversity, Integration and tional Law 321 (2005). Review 13 (2005). tion Cases in New York.” 12 “Abandoning Recess Affirmative Action in the “An Outsider Looks at the “Pre-Approved Contracts Virginia Journal of Social Appointments? A Com- Workplace.” 26 Berkeley Foreign Office Culture.” 23 for Internet Commerce.” Policy and the Law 546 ment on Hartnett (and Journal of Employment and Wisconsin International 42 Houston Law Review 975 (2005) (with Christine Others).” 26 Cardozo Law Labor Law 1 (2005). Law Journal 1 (2005). (2005). Gottlieb). Review 443 (2005).

AUTUMN 2006 THE LAW SCHOOL 83 FACULTY FOCUS

Hulsebosch, Daniel “The Jurisprudence of Mills, Linda G. “Who Should Pay for Stone, Geoffrey “Bringing the People Back Constitutional Conflict: “Intimacy and Terror: Mak- Bankruptcy Costs?” 34 The “Foreword: A Culture of In.” 80 New York University Constitutional Supremacy ing Peace with My Critics.” Journal of Legal Studies 295 Civil Liberties.” 36 Rutgers Law Review 653 (2005). in Europe Before and After 11 Violence Against Women (2005) (with Arturo Bris Law Journal 825 (2005). the Constitutional Treaty.” 1536 (2005). and Ivo Welch). Issacharoff, Samuel “Free Speech in the Age of 11 European Law Journal “Law, Rules and Presiden- Morawetz, Nancy Shaviro, Daniel N. McCarthy: A Cautionary 262 (2005). tial Selection.” 120 Political “Detention Decisions and “Can Tax Cuts Increase the Tale.” 93 California Law Science Quarterly 113 (2005). “The Primacy Clause Access to Habeas Corpus Size of Government?” 18 Review 1387 (2005). of the Constitutional for Immigrants Facing Canadian Journal of Law “Why We Need a Federal Jamieson, Dale Treaty and the Future of Deportation.” 25 Boston and Jurisprudence 135 Reporter’s Privilege.” 34 “Duties to the Distant: Aid, Constitutional Conflict in College Third World Law (2005). Hofstra Law Review 39 Assistance and Interven- the European Union.” 3 Journal 13 (2005). “Doing Well by Doing (2005). tion in the Developing International Journal of Good? Responding to World.” 9 Journal of Ethics Constitutional Law 473 Nagel, Thomas Tyler, Tom R. Cross-Border Tax Arbi- 151 (2005). (2005) (with Victor Fer- “The Problem of Global “Am I Respected or Not? Justice.” 33 Philosophy & trage.” 97 Proceedings of Inclusion and Reputation Kahan, Marcel reres Comella). Public Affairs 113 (2005). the Annual Conference on as Issues in Group Mem- “Symbiotic Federalism and “To Be a European Citizen? Taxation 246 (2005). bership.” 18 Social Justice the Structure of Corporate The Absence of Constitu- Rubinfeld, Daniel Silberman, Linda J. Research 121 (2005) (with Law.” 58 Vanderbilt Law tional Patriotism and the “Academic Journal Pricing David De Cremer). Review 1573 (2005) (with Constitutional Treaty.” 12 and the Demand of Librar- “Interpreting the Hague Edward Rock). Columbia Journal of Euro- ies.” 95 The American Eco- Abduction Convention: In “Can Businesses Effec- pean Law 481 (2005). nomic Review 447 (2005) Search of a Global Juris- tively Regulate Employee Kingsbury, Benedict W. (with Aviv Nevo and Mark prudence.” 38 U.C. Davis Conflict? The Antecedents “The Administrative Law López, Gerald P. McCabe). Law Review 1049 (2005). of Rule Following in Work Frontier in Global Gov- “Keynote Address: Living “Same-Sex Marriage: Refin- Settings.” 48 Academy of ernance.” 99 Proceedings and Lawyering Rebel- “The Bundling of Academic ing the Conflict of Laws Management Journal 1143 of the American Society liously.” 73 Fordham Law Journals.” 95 The American Analysis.” 153 University of (2005) (with Steven Blader). of International Law 143 Review 2041 (2005). Economic Review 441 (2005) Pennsylvania Law Review (2005). (with Aaron S. Edlin). “Legal Socialization of Chil- Lowenfeld, Andreas F. 2195 (2005). dren and Adolescents.” 18 “Federalism and the Demo- “The Emergence of Global “CAB v. KLM; Bermuda at Social Justice Research 217 cratic Transition: Lessons Sitkoff, Robert H. Administrative Law.” 68 Bay.” 30 Air and Space Law (2005) (with Jeffrey Fagan). from South Africa.” 95 The “Jurisdictional Competi- (3/4) Law and Contempo- 55 (2005). rary Problems 15 (2005) American Economic Review tion for Trust Funds: An “Managing Cooperation (with Nico Krisch and Marmor, Theodore 39 (2005) (with Robert P. Empirical Analysis of Per- via Procedural Fairness: Richard B. Stewart). “Medicare Reform and Inman). petuities and Taxes.” 115 The Mediating Influence Social Insurance: The Yale Law Journal 356 (2005) of Self-Other Merging.” “Foreword: Global “3M’s Bundling Rebates: An Clashes of 2003 and Their (with Max Schanzenbach). 26 Journal of Economic Governance as Admin- Economic Perspective.” 72 Potential Fallout.” 5 Yale Psychology 393 (2005) (with istration—National and University of Chicago Law Stewart, Richard B. Journal of Health Policy, David De Cremer and Transnational Approaches Review 243 (2005). “Il Diritto Amministrativo Law & Ethics 475 (2005) Nathalie den Ouden). to Global Administrative Sanchirico, Chris Globale.” 2005 Rivista Tri- (with Jacob S. Hacker). “Policing in Black and Law.” 68 (3/4) Law and “General and Specific Legal mestrale di Diritto Pubblico “The Presidential Elec- White: Ethnic Group Contemporary Problems 1 Rules.” 161 Journal of Insti- 633 (2005). tion of 2004, the Politics Differences in Trust and (2005) (with Nico Krisch, tutional and Theoretical “The Emergence of Global of American Social Confidence in the Police.” Richard B. Stewart and Economics 329 (2005) (with Administrative Law.” 68 Policy, and What Readers 8 Police Quarterly 322 Jonathan B. Wiener). Paul G. Mahoney). (3/4) Law and Contempo- Interested in Family Policy (2005). “Omnilateralism and rary Problems 15 (2005) Might Make of the Idea Schmolka, Leo L. Partial International Com- (with Benedict Kingsbury “Process-Based Leader- of New Social Risks.” 54 “Passive Activity Losses, munities: Contributions and Nico Krisch). ship: Fair Procedures and Emory Law Journal 1335 Trusts & Estates.” 58 Tax Reactions to Procedural of the Emerging Global “Foreword: Global (2005). Law Review 191 (2005). Change.” 16 The Leadership Administrative Law.” 104 Governance as Admin- Quarterly 529 (2005) (with Journal of International Meron, Theodor Schulhofer, Stephen J. istration—National and David De Cremer). Law and Diplomacy 98 “The Protection of Cultural “Rape in the Twilight Zone: Transnational Approaches (2005). Property in the Event of When Sex Is Unwanted to Global Administrative Upham, Frank Armed Conflict within the but Not Illegal.” 38 Suffolk Kornhauser, Lewis A. Law.” 68 (3/4) Law and “Political Lackeys or Faith- Case-law of the Interna- University Law Review 415 “Decision Rules in a Contemporary Problems ful Public Servants: Two tional Criminal Tribunal (2005). Judicial Hierarchy.” 161 1 (2005) (with Benedict Views of the Japanese Judi- for the Former Yugoslavia.” Journal of Institutional Schwartz, Alan Kingsbury, Nico Krisch ciary.” 30 Law and Social 57 Museum International and Theoretical Economics “A Normative Theory of and Jonathan B. Wiener). Inquiry 421 (2005). 41 (2005). 264 (2005) (with Charles M. Business Bankruptcy.” 91 “U.S. Administrative Law: A “Who Will Find the Defen- Cameron). Merry, Sally Virginia Law Review 1199 Model for Global Adminis- dant If He Stays with His “The Female Inheritance (2005). trative Law?” 68 (3/4) Law Sheep? Justice in Rural Kumm, Mattias Movement in Hong Kong: & Contemporary Problems China.” 114 Yale Law Jour- “The Idea of Constitu- “Understanding MACs: Theorizing the Local/ 63 (2005). nal 1675 (2005). tional Patriotism and Its Moral Hazard in Acquisi- Global Interface with CA Implications for the Role tions.” 21 Journal of Law, Comment.” 46 Current and Structure of European Economics, and Organi- Anthropology 387 (2005). Legal History.” 6 German zation 330 (2005) (with Law Journal 319 (2005). Ronald J. Gilson).

84 THE LAW SCHOOL AUTUMN 2006 “Estudios: Identidad con- Review Essay: “Exactly Guggenheim, Martin F. stitucional—exploracion Why Is the Crowd Naked? “Issues Surrounding Initial de un fenomeno ambiguo Are We Strippers or Were Intervention.” 3 Cardozo con ocasion de la politica We Robbed?” 24 Criminal Public Law, Policy and Eth- de identidad europea de Justice Ethics 47 (2005). ics Journal 359 (2005). lege lata y lege ferenda.” Zubaida, Sami Holmes, Stephen 25 (7) Revista española de “Islam and Secularization.” Book Review: “Dismal derecho constitucional 9 33 Asian Journal of Social Precedents: Perilous (2005). Science 438 (2005). Times: Free Speech in War- “The European Constitution time from the Sedition Act and European Identity: Shorter Pieces of 1798 to the War on Terror- Text and Subtext of the ism by Geoffrey Stone.” The Treaty Establishing a Benvenisti, Eyal New Republic, February 28, Constitution for Europe.” “Applicability of the Law of 2005, p. 31. 3 International Journal of Occupation.” 99 Proceed- Book Reviews: “The War of Constitutional Law 295 ings of the American Soci- the Liberals: Power and the (2005). ety of International Law 29 Idealists: Or, The Passion (2005). “Kleine Beitrage—Parla- of Joschka Fischer and Its mentarismus in Europa: Rethinking the Patriot Act: Bruner, Jerome Aftermath by Paul Berman eine Verfalls—oder “Homo Sapiens, a Localized and At the Point of a Gun: Keeping America Erfolgsgeschichte?” 130 Species.” 28 Behavioral and Democratic Dreams and Safe and Free Archiv für öffentliches Brain Sciences 694 (2005). Armed Intervention by Rechts 445 (2005). David Rieff.” The Nation, By Stephen J. Schulhofer Dworkin, Ronald “Legal Effects of World November 14, 2005, p. 29. (Century Foundation Press) “Judge Roberts on Trial.” Trade Organization Deci- New York Review of Books, Jacobs, James B. Three years after The Enemy Within: Intelligence sions within European October 20, 2005, p. 14. “The Teamsters’ Rocky Gathering, Law Enforcement, and Civil Liberties in the Law.” 39 Journal of World Road to Recovery—The Wake of September 11, Stephen Schulhofer returns to Trade 45 (2005). Estreicher, Samuel Demise of Project Rise.” 9 the topic of the government’s response to 9/11, this “California High Court “The ‘Sutherland Report’ on (1) Trends in Organized time zeroing in on the much-debated legislative Weighs In on Class Action package of antiterrorism measures. In WTO Reform—A Critical Crime 5 (2005). Rethinking the Waivers.” New York Law Patriot Act: Keeping America Safe and Free, Schul- Appraisal.” 4 World Trade Journal, December 20, 2005 Merry, Sally hofer discusses domestic surveillance needs, foreign Review 439 (2005). intelligence searches and surveillance, government (with Steven C. Bennett). “The Reynolds Adolescent Weiler, Joseph H.H. access to confidential records and conventional law “Geometry Does Not a The- Depression Scale in New “Derechos Humanos, enforcement’s expanded powers. As he analyzes each, ory of Employment Make.” Zealand Adolescents.” 39 Constitucionalismo e he is careful to lay out both the pros and the cons of 17 Employee Responsibili- Australian and New Zea- the Patriot Act. “Whatever its defects,” he writes, “it Integración: Iconografía ties and Rights Journal 123 land Journal of Psychiatry is more complex and more protective of basic lib- y Fetichismo.” 3 Puente@ (2005). 136 (2005) (with Lyndon erty than many of its detractors acknowledge. The Europa 34 (2005). Walker, Peter D. Watson, flaws, however, are basic. They threaten fundamen- “Supreme Court Decides “On the Power of the Word: Elizabeth Robinson, Sue tal liberties, needlessly expand dangerous powers FLSA ‘Doffing and Dun- Europe’s Constitutional Crengle and David Schaaf). and in practice interfere with effective measures to ning’ Case.” New York Iconography.” 3 Interna- thwart terrorism. We can and must do better.” Ste- Law Journal, November 29, Nagel, Thomas phen Holmes, the Walter E. Meyer Professor of Law tional Journal of Constitu- 2005 (with Ben Walther). Book Review: “Legal and a faculty codirector of the Center on Law and tional Law 173 (2005). Violations: Women’s Lives, Security, praises the book’s “comprehensive analysis” “U.S. Public Policy May Men’s Laws, by Catharine and its “conscientious fairness” in “show[ing] how Wyman, Katrina Trump Foreign Arbitrabil- many of the common criticisms of the Patriot Act “From Fur to Fish: Recon- ity Determination.” New A. MacKinnon.” TLS, the are specious.” That evenhandedness only makes the sidering the Evolution of York Law Journal, October Times Literary Supplement, author’s examination of the act’s shortcomings “all Private Property.” 80 New 31, 2005 (with Steven C. May 20, 2005, p. 8. the more lethal,” says Holmes, as Schulhofer “focuses York University Law Review Bennett). Book Review: “The relentlessly on the act’s serious flaws.” 117 (2005). Gilligan, Carol Need for Nations: Law Yermack, David “Foreword,” in Trusting Without Nations? Why von Bogdandy, Armin “Buchbesprechungen— “On Rescissions in Execu- What You Know: The Constitutional Government “Aufsatze—Europaische Europaisches Verfassung- tive Stock Options.” 78 The High Stakes of Classroom Requires Sovereign States, Verfassungspolitik als srecht. Theoretische und Journal of Business 1809 Relationships. Miriam B. by Jeremy A. Rabkin.” The Identitatspolitik. Theo- dogmatische Grund- (2005) (with Rangarajan K. Raider-Roth. San Fran- New Republic, June 27, retische Verortung und zuge, Berlin/Heidelberg Sundaram and Menachem cisco: Jossey-Bass, 2005. 2005, p. 29. Kritik.” 38 Kritische Justiz (Springer Verlag) 2003, 978 Brenner). Tyler, Tom R. 110 (2005). Seiten, Euro 39,95. Ulrich Golove, David Zimmerman, Diane L. “The Commander in Chief “Introduction: Legitimat- “Aufsatze—Konstitutional- Stascheit zum 65. Geburt- “It’s An Original!(?): In Pur- and the Laws of War.” 99 ing Ideologies.” 18 Social isierung des europaischen stag.” 38 Kritische Justiz suit of Copyright’s Elusive Proceedings of the Ameri- Justice Research 211 (2005). offentlichen Rechts in der 343 (2005) (with Harmut Essence.” 28 Columbia can Society of International europaischen Republik.” Aden). Journal of Law and the Arts Law 198 (2005). 60 Juristenzeitung 529 187 (2005). (2005).

AUTUMN 2006 THE LAW SCHOOL 85 Student Spotlight

ON HIGHER GROUND : Dozens of students from law schools all over the country spent their spring breaks on the Gulf Coast pitching in to rebuild neighborhoods and provide legal services to victims of Hurricane Katrina. This group, made up mostly of NYU School of Law students, was taking a welcome break from the hazardous task of demolishing damaged and unstable homes in the now-ironically named Elysian Fields neighborhood of northeast New Orleans. A Sunny Job Forecast for LL.M.s

L.M.s. looking for employment this year had lots to smile about. Based on L attendance and other statistics culled from the 20th annual International Student Interview Program last January, job-seeking international law students have more opportunities, and in a greater variety of cities worldwide, than ever before. Hosted by the Office of Career Services, 700-plus LL.M. candidates from 30 law schools converged on campus to interview for internships and permanent employment with 110 law firms in the U.S. and abroad. Twenty-two of the organizations were recruiting at NYU for the very first time—a 25-percent increase—for locations that Assistant Dean of Career Services Irene Dorzback had never accommodated at this event before. “Asia, Latin America and Europe are always well represented,” she said. But legal opportunities at the fair also included such far-flung locales as Bosnia- LL.M. students, from left, Fan Wei, Kun Fan, Taotao Ling and Bin Hu, opened the door to Chinese case law. Herzegovina, Bulgaria, Croatia, Saudi Arabia, Slovakia, Slovenia and Vietnam—32 countries in all. Transforming Characters to Other positive signs: There were 100 more interviewers this year than last, an the Letters of the Law indication that employers sent more representatives than in the past. There were YU students interested in inter- have adopted this standardized legal treaty also a remarkable number of firms whose national law have flown to the since its inception in 1980. The CISG pro- representatives were recruiting gradu- farthest corners of the earth to do motes equity through the regulation of sales ates for multiple global sites within their important work. But last spring contracts between international entities. organizations. For instance, Dallas-based five LL.M. ’06 students from China “Voltaire complained that he had to Thompson & Knight was interviewing for had to walk only a few blocks east change laws as often as horses when trav- offices in Algeria, Brazil and Mexico. One N of campus to perform a legal task of global eling across Europe,” says Pace law profes- can forgive Dorzback for boasting, “For significance: translating international case sor Albert Kritzer, who started building the globally focused law firms, this is the best law from Chinese into English. database in 2004. “Uniform accessibility of way to interview LL.M.s.” ■ The five students—Kun Fan, Bin Hu, the CISG, including the interpretations in Taotao Ling, Jun Wang and Fan Wei, who all decisions on disputes, is the ‘more’ that is took Vice Dean Clayton Gillette’s domestic needed. The database is the tool that pro- and international sales law class—donated vides this accessibility.” their time to Pace University Law School The current database contains more than to translate arbitration opinions issued 1,700 arbitration cases that have been trans- by the China International Economic and lated into English. Translations include Trade Association Commission. “Having CISG cases from Germany, Russia, Belgium, translated decisions from major trad- Austria and Spain, among other nations. ing nations such as China is essential The students spent 12 to 20 hours per to a uniform application of the United week translating two 10-page cases every Nations’ Convention on Contracts for the month. Thanks to their work, the database International Sale of Goods (CISG),” says is currently the most complete resource of Gillette, the Max E. Greenberg Professor of Chinese interpretations of the CISG, with Contract Law. “They’ll be used by practitio- China likely to be the country reporting the ners and academics around the globe.” most cases when completed. The students’ work is part of an expan- Though the students worked without pay, sive, shared online database of interna- they were rewarded in other ways. “After my tional case law from the CISG. Nations first translation was put on the site,” says Hu, A GREAT JOB: Assistant Dean Irene Dorzback responsible for more than 75 percent of “one of Professor Kritzer’s students quoted it presented recruiters with framed photographs to the world’s commerce, 67 countries in total, in her thesis. I was thrilled.” ■ commemorate 20 years of the international job fair.

AUTUMN 2006 THE LAW SCHOOL 87 STUDENT SPOTLIGHT

A Tale of Two Parties

n a typically frosty Wednesday in early area of raw human emotion for the elected March, students in Professor Samuel officials.” Bauer agreed on the emotional O Issacharoff’s Law of Democracy class nature of redistricting, but questioned the knew they were in for something special. process by which seats are reallocated. “One On the morning’s agenda was an infor- of the peculiar pathologies of the United mal yet dynamic discussion between Robert States is that we allow politically self-inter- Bauer and Benjamin Ginsberg, principal ested actors to have various powers over lawyers for the Democratic and Republican the democratic system—like the design of parties respectively, each with a distinct election districts—that virtually no other perspective on the complicated nature of democracy does,” Pildes chimed in. the American election process. Bauer also focused on low voter turn- On hand to provide further analysis were out and a general sense of public disen- Sudler Family Professor of Constitutional gagement as problems for both parties. He Law Richard Pildes and University of noted that in recent years Democrats and Minnesota law professor Guy–Uriel Charles. Republicans have each crept closer to the “These are the people who have shaped other’s ideologies in order to gain votes. the way that politics is done in the United This is why, said Bauer, radical ideology is States—for better or worse,” said Issacharoff, becoming the trump card that might decide the Bonnie and Richard Reiss Professor of an election. Constitutional Law, as he introduced Bauer On campaign finance reform, Ginsberg Christopher Black and Ginsberg. “Both play a critical role and Bauer concurred that legislative restric- 1974–2005 in the way our political system functions.” tions have led to the creation of special Issues such as redistricting, voter exclusion interest groups that wage their own election ast September, the NYU School of Law and campaign finance reform came to life ad campaigns. family suffered a tremendous loss when in the firsthand stories and anecdotes of “What you get is less branding by the par- L Christopher Black, a promising third-year these two Beltway insiders. ties,” said Ginsberg, pointing to groups such student, died unexpectedly at the age of 30. “My name is Ben, and I’m a Republican,” as the Swift Boat Veterans for Truth (for One of the top students in his class, joked Ginsberg before launching into a whom Ginsberg served as counsel), which Chris received a full dean’s scholarship to discussion of the logistical problems at the mounted sharply worded partisan attacks attend the Law School, and made his mark polls that have plagued both parties—from during the last presidential election season. as a staff editor on the NYU Journal of Law the recurrent stuffing of ballot boxes to the “Where is the boundary?” Bauer asked, and Liberty. controversial 2000 and 2004 presidential wondering if the increasing visibility and During a memorial service for him at elections. When it comes to contemporary influence of special interest groups was in NYU, Visiting Professor Ehud Kamar, who elections, the Democrats, Ginsberg said, part due to dissatisfaction with the recent taught Chris in Corporations, remarked, are the con artists and the Republicans are crop of candidates and their lack of focus “Chris was one of those people you imme- the thieves. on issues most important to voters. diately notice and immediately remember.” Redistricting was another hot button In the end, the speakers were more There was a certain ease to his academic topic. Ginsberg contended that redrawing hopeful than cynical about the future, while skill, Kamar noted, and an innate confi- geographical boundaries is necessary to acknowledging the mistakes of the recent dence in his questions and answers. change political bases, describing incum- past. Ginsberg said that the disenchanting Professor Jack Slain recalled Chris’s grin- bents, with their 98 percent reelection rate, legal battles that follow “flawed elections” ning face from the upper right-hand row of as wallowing in inefficiency, apathy and are fought in order to alleviate voters’ fears the classroom where he taught Survey of corruption. “Redistricting,” he said, “is an and hopefully bring them out to the polls. ■ Securities Regulation. Chris, he said, was always ready to make his point. Chris graduated from Bard College, from which he received a B.A. in history, and was a corecipient of the Marc Block Prize for best senior project in the history department. Marilyn Bernard, a close friend from Bard, said that Chris wasn’t always serious: she cherishes the time they spent together watching Star Trek reruns or lis- tening to Barry Manilow songs late at night. Chris even taught Bernard to do the Hustle at a party, early in their friendship. The memories will clearly fortify those directly impacted by Chris’s death. “Being around

him made you want to smile,” she said. RED AND BLUE MAKE VIOLET: From left, Professor Guy–Uriel Charles, Professor Richard Pildes, Democratic “Everyone felt brilliant around Chris.” ■ Party lawyer Robert Bauer, Professor Samuel Issacharoff and Republican Party lawyer Benjamin Ginsberg.

88 THE LAW SCHOOL AUTUMN 2006 The project changed Goyal’s ideas about his own goals, too. During the year, he had been accepted to the Law School but now he wasn’t so sure about leaving the village that had become like a second home. A discussion with a Nepalese neighbor, Tanka Bhujel, the vice principal at the school where he worked, sealed Goyal’s eventual choice. Bhujel told him, “If you go to law school, you’ll have access to resources. You’ll still need us, and we’ll still need you.” Goyal has likely exceeded Bhujel’s expectations; during his three years at the Law School Goyal raised approximately $70,000 for “Hope for Water” and its sister program, “Hope for Education,” which provides support to schools in Dhankatu. He returned to Nepal six times while attending NYU, and witnessed the district’s transformation into an independent and viable community. The water system has also grown; 150 spigots deliver a daily allowance of 300 liters of

Rajeev Goyal, seated third from right, near the Namje high school where he taught as a Peace Corps volunteer. water to most residences. Engineering jobs He and his Nepalese friends in the Dhankatu district are celebrating the installation of new water spigots. were created to keep the community self- sufficient; a cottage-industry cooperative occupies the women who no longer have to A Peace Corps Volunteer Stays transport water in containers; and the district has so far turned a $5,000 profit by sell- Close to the Lives He Changed ing water to other villages. Despite being singled out at gradua- ajeev Goyal ’06 is living proof that raising $30,000 through grants and private tion ceremonies with the Eric Dean Bender one person can make a difference. As donations. Though he hadn’t yet attended Prize in recognition of his outstanding R a Peace Corps volunteer assigned to a minute of law school, Goyal also had the commitment to public service apart from teach English in eastern Nepal, he was foresight to draft bylaws to govern the new Law School commitments, Goyal is mod- facing a roomful of empty desks each day. system, guaranteeing jobs for those dis- est about his achievements. At press time, Why? The children were spending hours placed by its construction. he was studying for the bar and planning walking to and from the nearest river to pro- On July 21, 2003, water trickled for the a visit to Nepal after the test. “I never imag- cure water for their families. first time from 22 public spigots around ined,” he says, “that I had the power to alter Goyal decided something had to be the district. Daily rhythms in the village someone else’s life.” Clearly, he also had the done so that the villagers could both have changed dramatically as a result. power to change his own. ■ accessible water and allow the kids to get an education. “When I got to Namje, in the Dhankatu district, it was the driest part NYU, Columbia Face Off for Good Cause of the season,” he says. “People called the place ‘a fish out of water.’ It was a two-hour up from No. 5). Recent high-profile fac- walk from the village to the river, and the ulty defections from Morningside Heights children had to fetch water every morning.” to Greenwich Village, including labor and Goyal arranged a community meet- employment expert Cynthia Estlund and ing to propose the creation of a pump sys- legal philosopher Jeremy Waldron, should tem—not that he knew the first thing about have added fuel to the fire. But the competi- engineering a water supply. “I was hesitant tion fizzled on the court as the Violets quickly at first because it was a part of the culture fell behind the Lions. The defeat (Columbia and the economy to fetch water. I didn’t won 67 to 48) ended NYU’s three-year win- want to disturb that,” says Goyal, who also ning streak. The halftime game was equally thought his outsider status as an Indian- disappointing as Columbia, even without American might be an obstacle. “But the former team captain Samuel Issacharoff, villagers basically said, ‘If you organize the Even its high-spirited fans couldn’t lift NYU’s offense. now on the NYU faculty, beat NYU, 3 to 2. infrastructure, we’ll build it.’” But there was consolation to be found And that’s exactly what happened. For y all rights, the b-ball rivalry between the in the charitable funds raised and split 16 months, Goyal, in addition to teaching, Columbia and NYU law schools should between the schools’ public interest career helped carry pipes and 25-pound bags of B have been intense, what with their being centers. NYU’s portion: $36,000 to fund concrete through mountainous terrain. He tied at No. 4 in the 2007 U.S. News & World summer internships. That’s something both contributed more than sweat equity, too, Report law school rankings (NYU moved sides can cheer about. ■

AUTUMN 2006 THE LAW SCHOOL 89 STUDENT SPOTLIGHT

Order of the Coif Inducts Noted Alumna with their friends and families,” said Chase. Dean Richard Revesz introduced the accomplished Sheila Birnbaum with obvious affection. The head of the Complex Mass Torts and Insurance Litigation Group at Skadden, Arps, Slate, Meagher & Flom, Birnbaum has argued twice before the Supreme Court, representing Metro-North Railroad and State Farm insurance, and won both times. On this occasion, she reflected not on her current practice but on her nearly 10 years as a law professor and the first woman associate dean at NYU years ago. “We’re looking forward to your delegating your work to these promising individuals,” said Revesz, “and your coming back to teach.” “My memories of teaching and of being the associate dean are the highlights of my life,” Birnbaum said, visibly moved. She recalled that when she graduated from law school in the ’60s women were not given judicial clerkships and could not work with the attorney general or handle Sheila Birnbaum with Dean Richard Revesz, left, Professor Oscar Chase and Vice Dean Clayton Gillette. felony cases with the district attorney’s office “because these jobs were not consid- tudents, family members, professors and serjeants-at-law in medieval England— ered ladylike.” friends who gathered for this year’s Order inducts those law students who are in the Birnbaum returned to her alma mater S of the Coif ceremony were reminded of top 10 percent after six semesters. Inductees first as a visiting professor in 1975. Having how far women have come in academia and also graduate magna cum laude. had no women mentors to guide her, she the workplace in general when the “Queen Oscar Chase, Russell D. Niles Professor relied on what experience she did have: of Torts” Sheila Birnbaum ’65 spoke upon of Law and president of the NYU chapter of “Before coming to law school, I taught fourth receiving her honorary induction into the the order, congratulated this year’s crop of graders,” Birnbaum said, laughing. “I used prestigious honor society. students. “It’s a pleasure to greet the spec- what I learned there in my law school classes: The Order of the Coif—named for the tacular students who have achieved this Never turn your back on a class, and be very white wig and skullcap formerly worn by academic success, and to share the moment strict or they’ll take advantage of you.” ■

Korematsu Lecture: A Disobedient Civil Servant

enry David Thoreau’s “Civil Disobedi- can citizens of Japanese ancestry in the accounts of governmental overreaching ence” might seem an unlikely touch- western United States. Honda and his fam- after 9/11. Honda attracted the ire of his con- H stone for a congressman, but for Rep- ily were subsequently interned gressional peers by condemning resentative Mike Honda, the essay serves as in Amache, Colorado, where he racial profiling in airport secu- a how-to guide for responsibly challenging spent his early childhood. rity checks, by opposing the the government’s reach while also serving The memory of this injustice Patriot Act and its infringements the diverse constituency of Northern Cali- stayed with Honda. He went on civil liberties, and by speak- fornia’s 15th District. on to build schools and health ing out against reported viola- “Part of patriotism is knowing where and care facilities in El Salvador with tions of the Constitution. how to challenge authority,” said Honda. “It the Peace Corps and spent 20 Fear and complacency, said is part of being an American.” years as a science teacher and Honda, are what allow people to As the keynote speaker for the sev- principal in two public schools stay silent. “Under this regime, enth annual Korematsu Lecture last April, before eventually becoming the Rep. Mike Honda we don’t have a lot of debate,” Honda explored this theme in his speech, first Asian Pacific American to warned Honda. “This country “Civil Rights and Civil Liberties Post-9/11,” in serve on the Santa Clara County Board of has to be bigger than fear. It takes practice which he candidly described how legally Supervisors in California. Today, in addition for us to check our fears.” sanctioned racism shaped his beliefs. to holding a congressional seat, he serves as Honda also invited what few politicians A third-generation Japanese Ameri- the vice chair of the Democratic National do: criticism. He asked his listeners to stand can, Honda was just six months old when Committee and as chair of the Congressional up to elected officials who are complicit Japanese forces attacked Pearl Harbor. Two Asian Pacific American Caucus. in sacrificing civil liberties and human months later, on February 19, 1942, President “The Constitution is rarely challenged rights. “Keep our feet to the fire,” he urged, Franklin D. Roosevelt issued Executive Order in times of tranquility,” Honda said, refer- “and protect the country from all enemies, 9066, sanctioning the internment of Ameri- ring to both his own internment and the including ourselves.” ■

90 THE LAW SCHOOL AUTUMN 2006 for Volunteerism and Community Service, which recognizes outstanding efforts to support charitable causes at the university, and in the greater community of New York City. The alumni effort was also reflected in the greater variety and sophistication of the prizes. During the silent auction, held in Greenberg Lounge, guests bid on weekend getaways to Colorado’s Beaver Creek resort, vintage Bordeaux and dinners at top restaurants such as Babbo and Lever House. The stakes were raised in Tishman when guest auctioneers Jason Washington ’07 and Professors Cynthia Estlund and Samuel Issacharoff brought bidders to their feet, pitting students against alumni for extravagant prizes. A night of tournament poker with World Series of Poker record-setter Wendeen Eolis went for $2,500, while a diamond necklace from M. Fabrikant & Sons was snatched up for $6,000. The night’s largest bid, com- Jay Neveloff, Beverly Farrell, Dean Richard Revesz and NYU President John Sexton after a four-way pie toss. manding an impressive $6,700, fetched a pair of Super Bowl tickets and VIP passes to a Friday night pre-game party in Miami. The Law School Raises the Bar “The Public Service Auction represents student and alumni support for our com- on Public Interest Fund-raising mitment to public interest legal practice,” Alumni form first-ever auction committee and says Ellis. “It was gratifying to see the superb job the evening yields a record-breaking $139,000 the student committee did, and the overwhelming support of the faculty and alumni,” liver Carter ’06, the Student Bar Asso- ing outcome. The 22-person alumni auction Neveloff said, adding, “besides, where else ciation president and ersatz auctioneer, committee, chaired by Neveloff and his can you see President Sexton and Dean O stood next to a grinning Dean Richard wife, Arlene, worked with students to solicit Revesz getting pies thrown in their faces?” ■ Revesz on the stage of Tishman Audito- donated items from members of the com- To donate items or volunteer for the rium during the Public Service Auction last munity for both the silent and live auctions. alumni committee for the March 1, 2007, auc- March. Carter pointed into the crowd, tak- As a result of their efforts, the auction itself tion, please call the Office of Development ing bids on the last item of the night: the was awarded the President’s Service Award and Alumni Relations at (212) 992-8801. privilege of throwing pies in the faces of Revesz and NYU President John Sexton. “How much do you hate pie, Dean Revesz?” Carter asked. Cheers to the Marden Winner “Lots!” replied Revesz, as the bids kept Joanna Cohn Weiss ’06, arguing for the pe- rolling in. titioner in Carla Tortelli v. U.S., won the Best Too bad for the dean, because he and Oralist Award at the 20th annual Orison S. Sexton were about to square off against Jay Marden Moot Court Competition. The hypo- Neveloff ’74 and Beverly Farrell ’01 in an thetical case, prepared by Andrew Hodgetts ’07 and Rachel McCracker ’07, borrowed impromptu pie fight that brought in $1,050 characters from a certain ’80s TV sitcom set to benefit the Law School’s summer pro- in a Boston bar. In appealing her conviction grams in public interest. for the murder of postal worker Cliff Clavin, The auction’s proceeds help fund stu- barmaid Carla Tortelli claimed the prosecu- dents to work at public interest organization violated her Fifth Amendment rights by using her pre-arrest silence against her at trial tions both in the United States and abroad. and questioned whether a district court judge Last year, reports Deb Ellis, assistant dean has the authority to order that a sentence run for the Public Interest Law Center, NYU consecutively to a yet-to-be-imposed state funded more than 300 students working in court sentence. Ofer Reger ’07 was the other petitioner’s counsel, while Elisabeth Genn ’06 31 countries. and Daniel Samann ’07 argued for the re- In the end more than $139,000 was raised, spondent. U.S. Court of Appeals judges Rob- making this year’s auction the most success- ert Katzmann of the Second Circuit, M. Blane ful in the history of the event. Alumni helped Michael ’68 of the Fourth Circuit and Marjorie plan this auction—a first—and their partici- Rendell of the Third Circuit were the judges. pation was a big reason for the record-break-

AUTUMN 2006 THE LAW SCHOOL 91 STUDENT SPOTLIGHT

Causes and Principles to Believe In Aside from exams and papers, students as editors of journals or members of organizations pour a tremendous amount of time and energy into multipanel symposia on topics that often inspire passionate debate. Below are brief descriptions of panel discussions from the legal issues concerning alternative energy to the Voting Rights Act.

Constitutional Implications of the War International and Public Affairs compared the Regional Greenhouse Gas Initiative, on Terror—NYU School of Law Annual what he called the “old morality” to the the New York State Renewable Portfolio Survey of American Law “new reality.” In the new reality, he says, Standard and the development of electric- There were lively panel discussions on we live in the age of a new breed of terror- ity resources on public lands in the Western “Extraterritorial Applications of Constitu- ist, when torture saves lives, and therefore, U.S. The discussion was particularly timely tional Rights” and “The Role and Enforce- “due process is for sissies.” because as it was unfolding, Congress was ment of International Law in U.S. Courts,” debating an amendment to a Coast Guard but the symposium’s third panel, on “Coer- The New Power Generation: Environ- appropriations bill that would give the cive Interrogations,” inspired the most mental Law and Electricity Innovation— Massachusetts governor and the Coast spirited debate. Professor Joe Margulies NYU Environmental Law Journal Guard a veto over the Cape Wind project. A of the University of Chicago Law School With pressures mounting in the energy sec- few months after the conference, the origi- asked, “Is the president allowed to say, ‘I tor due to national security, rising oil and nal amendment was scuttled, leaving only know that torture will lead to American natural gas prices, climate change and pol- the Coast Guard to decide if the offshore safety?’” And Renee Redman, legal direc- lution control concerns, this colloquium wind farms impeded safe navigation. tor of the American Civil Liberties Union explored domestic regulatory policy, the of Connecticut, noted that under the Bush influence of domestic politics and develop- Carter-Baker and Beyond: The Work of administration’s definition of acceptable ments in international electricity policy. the Commission on Federal Election interrogation techniques, many of Sad- Professor Katrina Wyman moderated Reform and Implications for Reautho- dam Hussein’s methods would have been the panel on politics, during which the rization of the Voting Rights Act—NYU defensible as well. Glibly putting it all into panelists explored several actual examples Journal of Legislation and Public Policy perspective, adjunct professor Abraham of alternative energy generation projects, The drawn-out voting recounts and dra- Wagner of Columbia University’s School of including Cape Wind in Nantucket Sound, matic judicial conclusion to the 2000 presidential election made it clear that the elec- toral process needs closer examination, if not reform. As its title conveys, this February BALSA Founder’s Dinner symposium examined the September 2005 final report of the Commission on Federal Election Reform, also known as the Carter-Baker commission for its cochairs former President Jimmy Carter and former Secretary of State James Baker III, and debated the Voting Rights Act. Professor Samuel Issacharoff moderated the second panel, on whether to reautho- rize Section 5 of the Voting Rights Act. (In July, the Senate did indeed vote to renew it.) Section 5 was meant to prevent discrimination by freezing election procedures in certain states until any new procedures have been subjected to review. Professor Guy- Uriel Charles of the University of Minnesota Law School said a study of the objection In 1968, Algernon Johnson Cooper ’69 founded what’s now the Black Allied Law Students Association (BALSA) at NYU School of Law. Known elsewhere as the National Black Law Students Association, the letters the Department of Justice receives affinity group is prominent at every accredited law school in the country, with 6,000 members across shows that Section 5 is no longer effective. the nation. After the BALSA symposium last October, the group held a Founder’s Dinner, during which However, Douglas Kellner, cochairman of alumni spoke about what BALSA meant for them as students. The evening’s highlight, however, was Cooper’s announcement of a campaign to raise $40 million within two years—a million for each year the New York State Board of Elections, dis- of the group’s existence—to fund a national office and provide self-sufficiency. agreed. “The most important reason for In the photo above, Cooper is fifth from the right, surrounded by NYU School of Law students and alumni. keeping Section 5 is that it does force elec- From left: Robert Peters ’07, Toby Lewis ’08, Jimmy Yan ’97, Morenike Williams ’07, Lurie Daniel-Favors ’05, Jason Washington ’07, Candice Jones ’07, Laurice Thrasher ’07, Arinze Onugha ’07, Marcia Henry ’07 tion officials to think about the effect of and Donesha Dennis ’08. everything they do on minorities,” he said. “And that’s a good thing in the long run.”

92 THE LAW SCHOOL AUTUMN 2006 Problems of Censorship in a New Technological Age: The Internet, Child Pornography, and the Future of the In a Dog-Eat-Dog World, Do Obscenity Doctrine—The Review of Law and Social Change Animals Have Legal Rights? This symposium focused on three of the Capping off the first year that the Law School NYU Professor of English and Drama most imperative topics related to por- offered an animal law course, the NYU Stu- Una Chaudhuri, who works in the new field nography: “Internet Pornography and dent Animal Legal Defense Fund organized of critical animal studies, pointed out that Technology: Is Filtering the Solution?”; its inaugural symposium, “Confronting Barri- animal advocates face the unique hurdle of “Drawing a Line: Child Pornography”; and ers to the Courtroom for Animal Advocates.” representing a group that cannot speak for “The Future of the Obscenity Doctrine.” Welcoming the participants and an audi- itself. She echoed Gillette, who earlier in the ence of lawyers and law students, Vice Dean day said this type of representation raises Moderated by Professor Paul Chevigny, the Clayton Gillette noted, “The fact that a new “complicated, difficult and fascinating” ques- most contentious panel discussion was on field has arisen is a remarkable event in the tions such as, What exactly are the rights child pornography. Andrew Oosterbaan, history of legal education.” that are to be protected? And, since animals child exploitation and obscenity section NYU Adjunct Professor David Wolfson, can’t represent their own interests, who is who teaches animal law, and Laura Ireland charged with addressing them? chief of the U.S. Department of Justice, said Moore, founder and director of the National The two other panels focused precisely the Internet “legitimized and rationalized Center for Animal Law, co-moderated the on those questions. Litigators including this behavior” and served as an “x-factor” most thought-provoking panel, “Linking Cul- Katherine Meyer of the public interest firm in that “predators realized for the first time tural and Legal Transitions,” which explored Meyer Glitzenstein & Crystal discussed the that they were not alone.” Professor Amy the dynamic between cultural views and evolution of federal standing law and the treatment of animals on the one hand and challenges current standing doctrine poses Adler took a different tack and focused on the legal status of animals on the other. for animal advocates, as well as potential mainstream images of children that are “not UCLA Professor of Law Taimie Bryant noted avenues to standing in federal and state illegal, but flirt on the edge,” and explored that society’s false and pervasive notion that courts. Later, five panelists creatively raised how mainstream American culture is push- we care about animals undermines efforts causes of action, such as loss of companion- to address ways animals are actually mis- ship claims in veterinary malpractice suits. ing the sexualization of children. treated, while Dale Jamieson, NYU profes- In closing, Wolfson acknowledged that sor of environmental studies and affiliated legal change occurs slowly, but, striking a Prosecutorial and Judicial Discretion professor of law, observed, “We’re living in positive, and wry, note, he said that “lawyers and Minorities: Where Do We Go from a time in which our moral relationships with are particularly good at doing hard work Here?—Black Allied Law Students animals are being radically transformed.” that isn’t particularly glamorous.” Association (BALSA) The BALSA 2005 Fall Conference brought together notable judges, academics, prosecutors and public defenders to explore how race affects the prosecution and sentencing of criminal offenders. Professor Bryan Stevenson moderated the day’s two panels, which brought to light preventive legislative measures intended to reduce unequal treatment of minorities, and alternative solutions to reduce the Taimie Bryant Una Chaudhuri Dale Jamieson David Wolfson number of African-American and Latino males in prison and on death row. The morning panel discussion on prose- Human Rights and Governmental the National Economic, Social and Cultural cutorial restraint evoked a call for prudence Obligations in the Wake of Natural Rights Initiative, said “those impacted have in the criminal justice system. Prosecutors, Disasters—NYU Law Students for instinctually embraced this as a question said Bronx County District Attorney Robert Human Rights of human rights.” She cited the response to Johnson, must develop a nuanced touch During Mardi Gras, while CNN showed Hurricane Wilma in October 2005 as proof when exercising discretion in their choices New Orleans bravely celebrating its world- of biased treatment. for setting bail, selecting juries and recom- renowned revels, this symposium’s partici- Twenty thousand migrant farm workers mending the death penalty. pants discussed the aftermaths of Hurricane were stranded in the storm’s path in Collier Paul Butler, a professor at the George Katrina, the Indian Ocean tsunami and even County, Florida, while the sheriff’s depart- Washington University School of Law, called the manmade disasters of 9/11. ment focused on evacuating the city of Johnson a prime example of a progressive “After a major natural disaster, the ques- Naples, where the annual median income prosecutor, adding that prosecutors have tion that goes through minds is, Why?” said is $65,641. Albisa found confirmation in far more power than governors and judges symposium chair Matt Schrumpf ’07. “But former FEMA chief of staff Jane Bullock, when it comes to influencing and shaping the sad and unfortunate tragedy is that the who left the agency in 2000 after 22 years of the criminal justice system. problems that result are manmade and fol- service. Bullock, who has been outspoken “It is that power that affects freedom and low the disaster.” Among the panels was in her criticism of FEMA under the Bush lives,” noted Avis Buchanan, director of the “Natural Disasters and Human Rights: How administration, charged that in the wake D.C. Public Defender Service, adding that Do We Respond?” which focused on inter- of Hurricane Katrina, FEMA placed poli- prosecutorial and sentencing discretion is nally displaced persons—and led to a dis- tics above the fair treatment of American what will make the criminal justice system a cussion of class and race bias in disaster citizens. “The human rights issue was not more effective means to bettering society. response. Cathy Albisa, executive director of [paramount],” she said. ■

AUTUMN 2006 THE LAW SCHOOL 93 STUDENT SPOTLIGHT

Law & (Spontaneous) Order Richard Epstein shines as the first Friedrich A. von Hayek lecturer

tion for land), custom may need to be for- saken, allowing a forced evolution to take place in the form of legislation—something somewhat contradictory to Hayek’s laissez- faire philosophy of spontaneous order. Epstein compared his final topic, protocol (which he defined as “a rigorous program that you follow, come hell or high water”), to intuition by highlighting how, in modern day cases of risk assessment and liability, stringent steps need to be taken and regulations must be observed in order to keep society safe. Epstein explored Hayek’s theory’s restrictions by suggesting that protocol based on data, and instituted by one central organization, will serve society better than multiple individuals deciding things for themselves. Boiling down Hayek’s model to an image, Epstein remarked that Hayek’s legal system Hayek lecturer Richard Epstein was in residence at the Law School for two weeks last fall. would “have sharp boundary lines, and then once those boundary lines are clear, let indi- riedrich A. von Hayek, the Austrian- asserts that people will inevitably find viduals figure out what to do.” He recounted born Nobel Prize-winning economic exceptions and ways to circumvent these that Hayek argued a dispute with the Federal F liberal, was a proponent of voluntary norms (killing in self-defense, for example) Communications Commission (FCC) in exchange within a free market system, and and so the creation of laws to sort things 1944, during which New Deal Supreme staunchly opposed socialism and central out is always necessary. Court Justice Felix Frankfurter countered planning as the means toward economic To define custom, Epstein cited the Hayek and said that the government should development. development of language. No central- draw those boundary lines, and, as with The NYU Journal of Law & Liberty, a ized government agency forms a language; a highway, also control the traffic’s flow. student publication “devoted to the devel- rather, it is a collective product agreed upon “Hayek said that the reason why highways opment and analysis of classical liberal and utilized by individuals gradually over work is that we set the rules and you figure thought,” held its first Friedrich A. von time. However, in order to resolve extremely out where to go,” Epstein said, adding, “We Hayek Lecture in Law last September, fea- critical issues facing a society (the deple- have had an empirical test: Highways do just turing the energetic and engaging Professor tion of natural resources, unfair compensa- fine—the FCC doesn’t do so good!”■ Richard Epstein as its inaugural speaker. Epstein, who is the James Parker Hall Distinguished Service Professor of Law Public Interest Job Fair: Just Beginnings at the University of Chicago Law School, kicked off his brief in-residence stay at y far the largest event of its kind in the who found the event extraordinarily effi- NYU with his lecture “Intuition, Custom nation, the 29th annual Public Interest cient. “I really appreciate that the fair brings and Protocol: What Are the Sound Sources B Legal Career Fair drew 170 employers employers from a variety of places and of Human Knowledge?” During his talk, he and students from more than 21 schools to fields and has them here at our disposal in examined how Hayek might have under- NYU’s campus last February. one place,” said Del stood human nature, our traditions and the Employers praised the con- Rios. “It is a very, very choices we make, and then applied Hayek’s venience of the venue and convenient way to find theory of spontaneous order—defined as the caliber of the job candi- a job.” Del Rios ulti- unplanned cooperation among members of dates. “We identified more mately accepted a posi- a society—to legal frameworks. highly qualified students tion with Levine’s orga- Intuition, as Epstein defined it, relies than we are able to accom- nization because “they on a set of three basic societal norms: con- modate for the summer,” were more than will- demnation of acts of aggression, reciproc- said Craig Levine ’91, ing to cater my summer ity in social transactions and revulsion of senior counsel and policy experience to my inter- acts of deviance. These norms suppress director for the New Jersey ests and offered me the violent crime, set the terms for contracts Institute for Social Justice. opportunity to work and prohibit taboo acts. Unlike Hayek, who One of the impressive on a new project that believed that an individual’s moral com- students Levine identi- involves direct service pass guides a society toward order, Epstein fied is Marcia Del Rios ’07, and policy research.” ■

94 THE LAW SCHOOL AUTUMN 2006 Student Parties

Liens and Torts and Bars, Oh My! There’s no place like Contracts, Dorothy learns in the 2006 Law Revue

he student-produced musical spoof, The Wizard of Lawz, follows Dorothy and her T three companions as she encounters many common law school travails—and some random wrong turns—on her way back to Contracts class. Dorothy, played by Melanie Hirsch ’07, wakes up in a strange land after thinking too hard in her Contracts class. She quickly meets up with dreamy Noah Feldmander (Eric Feder ’07), the “Profitch of the Middle East,” and the Munchkins (Carla Small ’07, Joe Abraham ’07, Sarah Burleson ’07 and Deborah Katz ’07). Advising her to follow the Sullivan Road to seek the all-knowing Wizard of Lawz, they bestow on her a pair of ruby-studded Gucci orthotics to help her get where she is going. BRAINS, HEART AND COURAGE: Forget green witches and flying monkeys, Dorothy faces thorny legal and academic obstacles in her quest to meet the Wizard of Lawz in this sendup of the classic film. In her travels, Dorothy encounters the Wicked Profitch Clayton Gilletu (Matthew Dewitz ’08), who will stop at nothing to get After Law School” spoofs the mind-numb- naturedly send up themselves. So, Professor the ruby orthotics. She also befriends Deepa ing work those sellouts encounter. Noah Feldman appears with a photo of him- (Madeline Zamoyski ’08), a job-crazed 2L; There are detours through pop culture, self to gaze at while Professor Paul Chevigny Arthur (Kyle Hallstrom ’08), a class-skip- such as law professors vying to become taps out a little impromptu dance. ping 3L; and Sarah (Gillian Burgess ’06), a Donald Trump’s apprentice (Professor Amy In the grand finale, Dorothy discovers liberal LL.M. in search of a clue. Adler, played by Rachel Pasternak ’06, bests that the Wizard of Lawz is Dean Revesz, who The four companions encounter many Derrick Bell (Ariel Joseph ’06), a tap-danc- confesses he isn’t really a wizard. Dorothy familiar law school adventures played out ing Paul Chevigny (Jason Davis ’07) and negotiates a return to Contracts, where she in song, such as “One Class, Boring,” as the David Richards (David Greenberg ’08)), confronts the wicked Gilletu and melts him characters lament their six-hour profes- and through recent school history, as the into goo. Ultimately the evening ends with sional responsibility class. “Sell Out” pokes Journal of Social Change faces off against the students striking a note of gratitude as fun at students who profess an interest in the Journal of Law & Liberty. the cast gathers together to sing “Wizard public service but wind up taking jobs at In the Law Revue tradition, the faculty ’06,” for the faculty which has given them corporate law firms, and “Someday Long members who have been satirized good- “all we’ll ever need.” ■

AUTUMN 2006 THE LAW SCHOOL 95 STUDENT SPOTLIGHT

The Wide-Angle Lens of the Law This year, students seeking a greater understanding of political, religious, civil and human rights issues invited guests to discuss pressing events occurring in Denmark, Japan, Libya, Palestine and Chechnya.

Rights, Religion and Civility: Talking A Threat to Society?: Arbitrary About the Danish Cartoon Controversy Detention of Women and Girls in Libya When cartoons depicting the Prophet The Islamic and the Middle Eastern Law Mohammed—published by the conserva- Students associations at NYU partnered tive Danish newspaper Jyllands-Posten in with Human Rights Watch (HRW) Young 2005—were reprinted in papers around Advocates to host a presentation last March the world, Muslim protesters rioted, call- by Farida Deif, a researcher for the Women’s ing them blasphemous and “Islamophobic,” Rights Division of HRW. Her 2006 report on while the papers’ editors claimed a right to the involuntary detention of Libyan women free speech. in “social rehabilitation facilities” exposed a Last April, Law Students for Human chilling practice that robs its victims of due Rights and the Islamic Law Students process and dignity. Association assembled a panel of schol- ACTIVIST OR SCOURGE?: Arudou Debito. The majority of the women in these cen- ars including Professors Noah Feldman ters were placed there by their families after and Philip Alston, CUNY history professor denied entrance to the Yunohana onsen—a they had been raped or sexually assaulted. Ervand Abrahamian and Dr. Syed Naqvi, Japanese hot spring—in the port city of The women are viewed not as victims, but chairman of the Islamic Information Center, Otaru because of its “Japanese only” policy, rather as criminals in need of moral cor- to discuss the controversy. originally instituted to prevent Caucasian rection through religious education, soli- Without justifying the violence, Naqvi sailors on leave from “fouling the bathwater.” tary confinement, starvation and invasive felt the demonstrators reacted to the defa- The discriminatory policy has been adopted “forced virginity testing” by male attendants. mation of the Prophet and of religion in by restaurants, salons and other businesses “These girls are seen as having somehow general. “Muslims see the Prophet as the around the country. The Asia Law Society strayed from ‘the path,’” says Deif, who was finest human being on the planet,” said hosted Arudou’s visit to NYU on March 28, granted unprecedented access to tour the Naqvi. The demonstrators, Naqvi added, during which he described his eight-year facilities and to speak to the women and would reserve the same fervor for other legal battle to combat this policy. girls being held there. Since Libya does “immaculate personalities” such as Moses, “I’m a father of two with a Japanese not recognize violence against women as a Jesus and the Virgin Mary. woman and employed as a tenured instruc- crime, the roots of these injustices are deep In Islamic law, representations of the tor at a university in Hokkaido,” Arudou and knotty. Officials “thought that these Prophet Mohammed are forbidden in order says of why he’s fighting. “I bought land and facilities were a testament to the largesse to avert idolatry. Alston concurred, and, built a house out in the countryside in 1997, of the Libyan welfare system [in] that they referring to Denmark’s conservative bent, which was the main reason I took Japanese are providing shelter and food for these added, “There has been an abdication of citizenship.” His exclusion violates article 14 women,” says Deif. responsibility on the part of the Danish of Japan’s constitution as well as provisions After the release of Deif’s report in Prime Minister.” of the United Nations’ Committee on the February 2006, the Libyan government This observation led to a hypothesis that Elimination of Racial Discrimination con- established a council to investigate the the cartoons’ publication might have been vention, which were signed by Japan. physical and psychological well-being of a provocation by Jyllands-Posten, and that In 2001, Arudou was awarded 1 mil- the women being held. the depiction of Muslims as extremists was lion yen, about $8,500, in damages from meant to polarize Denmark’s heterogenous, the onsen, but lost his case and subse- conservative society. quent ones against Otaru City. In 2005 the In the end, the panelists agreed that Japanese Supreme Court summarily dis- the issue boils down to respect. “What the missed Arudou’s case for “not involving West needs to ask itself is, ‘Why do so many any constitutional issues.” At the time of his Muslims feel disrespected?’” Feldman said. NYU visit, Arudou was planning to sue the “On all sides of this question, we have seen a national government anew for violating the shameful lack of civility.” U.N. convention. All over Japan, Arudou is seen as a con- Japanese Only: Fighting for Equality, troversial figure, depicted in one English- One Business At a Time language magazine as both devil and The 2005 antidiscrimination lawsuit that angel. But for American law students, “Mr. went before Japan’s Supreme Court started Arudou’s legal battle is important for many when Arudou Debito couldn’t take a bath. reasons,” said Jesse Hwang ’07, former Arudou is David Aldwinckle, formerly president of the Asia Law Society. “We can

of New York. Even after becoming a natu- learn a lot from legal systems abroad as we UNVEILING LIBYA’S VICTIMS: Human rights ralized citizen of Japan in 2000, he was deal with our own problems of injustice.” advocate Farida Deif.

96 THE LAW SCHOOL AUTUMN 2006 Palestine, Hamas and the Future of Research scholar Mary Holland moder- cal waste from refineries cause illness and Politics in the Middle East ated the discussion among William Abresch, numerous birth defects. When it comes to promoting democracy in director of the Project on Extrajudicial Denber characterized the situation as the Middle East, be careful what you wish for. Executions at the Center for Human Rights “widening chaos driven by poverty and cor- In the January 2006 Palestinian Legislative and Global Justice; Almut Rochowanski, ruption” and blamed the muted global Council election, Hamas—recognized as a cofounder of the Chechnya Advocacy response on “Chechen fatigue” and fears of terrorist entity by the United States and the Network; and Rachel Denber, a senior staff alienating Russian President Vladimir Putin. E.U.—won a majority 74 of 132 seats, leaving member at Human Rights Watch. Abresch cited three crucial rulings by the the West to wonder how exactly to read this Rochowanski described the insufferable European Court of Human Rights in which democratic coup. conditions that Chechen civilians endure it was decided that Russia had violated the The NYU Middle Eastern and Islamic as a result of the withdrawal of humanitar- human rights of six Chechen civilians who Law Students associations and the National ian aid by non-governmental organizations. were killed during military operations in Lawyers Guild quickly convened a panel Internal displacement, a collapsed economy 1999 and 2000. He called these judgments to discuss the election and its significance and a stunted educational infrastructure crucial accomplishments in the battle to days after the outcome. have bred apathy and discord, while hazards getting all governments to comply with “Widespread corruption permeating the from the unregulated disposal of chemi- human rights law. ■ Palestinian Authority as well as chronic lawlessness and a lack of security for the average Palestinian had a strong impact on Scholarship Reception voter behavior,” said Middle Eastern association member Kumar Rao ’06, before introducing panelists Professor Noah Feldman, Global Visiting Professor Sami Zubaida and NYU Professor of Middle Eastern Studies Zachary Lockman. In Muslim countries in which free elections have been held, parties that combine Islam with democracy have historically been successful, Feldman explained. This 2 was the case with Hamas, which seemed to 1 rise above the corruption of the Palestinian Authority and promoted welfare programs in the Gaza Strip—which has long suffered from a listless economy and limited future prospects for its large youth population. Lockman traced Hamas’s victory to the failure of the 1993 Oslo Accords, which called for a partial withdrawal of Israeli forces from the West Bank and the Gaza Strip. However, the number of Jewish settlers in these territories doubled, and Hamas reinforced its hard-line refusal to recognize Israel. 3 The panel discussion was a first response 4 to a surprising political outcome, and all three panelists agreed that it was too early to tell exactly what the future of the Middle East holds. Zubaida, however, hazarded a prediction: “The victory of Hamas hasn’t very much altered the problems of Palestinian society nor Israeli-Palestinian relations.”

Human Rights, Humanitarian Crisis and the Conflict in Chechnya Although the bloodiest battles of the Second Chechen War ended in 2002, kidnappings and civilian murders continue as Russia and Chechnya struggle over the degree of 5 6 the latter’s independence. Last March, Law Students for Human INVESTING IN HUMAN CAPITAL: (1) From left, Charles Klein ’63, his Law and Business Scholar Deidrie Stone ’08, Joyce Lowinson and Dean Richard Revesz. (2) Grotius scholar Quang Trinh ’06. (3) From left, Rights held a panel discussion on the cur- Trustee Warren Sinsheimer (LL.M. ’57) and Public Service Scholars Gabe Freiman ’06, Ani Mason ’07 and rent humanitarian situation in Chechnya Ryan Downer ’08. (4) Trustee Dwight D. Opperman with his scholarship recipient Jonathan King ’07. (5) Kenneth Raisler ’76 with Sullivan & Cromwell Public Interest Scholars Nicholas Durham ’08, left, Rose and the decisions of the European Court of Cahn ’07 and Adam Heintz ’06. (6) Trustee Florence Davis ’79 with Dean Revesz. Human Rights pertaining to the conflict.

AUTUMN 2006 THE LAW SCHOOL 97 STUDENT SPOTLIGHT

student scholarship Tax Havens and the Global Tax Melting Pot

Introduction The discourse worldwide on controlled foreign corporation (CFC) rules is already considerable, but it is perhaps not too late to bring another model to the table. Instead of the orthodoxy, where CFC rules are devised and administered exclusively from within each of the 25 countries with CFC regimes, the article (of which this is a summary) pro- poses a reciprocal CFC regime among an economically substantial group of OECD countries, herein referred to as “the group” or “the reciprocal group.” The model pro- poses that the countries in the group agree to exempt each others’ CFCs from attribution and work toward unified rules for attributing the income of CFCs resident outside the group. The CFC rules under discussion are those by which income earned in a tax year by some foreign corporations controlled by domestic shareholders is taxable to those shareholders in the same year, regardless of whether the foreign corporation makes a distribution to them. Over 25 countries now have CFC rules, after the United States launched the first CFC regime in 1962. The process of deeming a foreign corporation’s income to be the income By chloe a. burnett of domestic shareholders is hereafter referred to as “attribution.”

ax havens have been considered a excellence in the NYU LL.M. International Background threat by higher-taxing countries for Taxation Program in 2005. After graduating The proposed model was inspired by several decades, but Chloe Burnett in May 2005, Burnett returned to her home international tax reforms Australia intro- (LL.M. ’05) discovered that con- city of Sydney, Australia, where she currently duced in 2004. Australia will no longer trolled foreign corporations (CFC) is a lawyer in the tax department at Allens subject to attribution CFCs resident in the tax laws have not fully evolved to Arthur Robinson Solicitors. She will begin United States, the United Kingdom, Japan, T meet the threat in today’s world of global clerking for Justice Richard Edmonds of the Germany, France, Canada or New Zealand, capital. “Twenty-five countries have intro- Federal Court of Australia in December 2006 except for income passed through a desig- duced CFC rules since John F. Kennedy and will also continue her second year as a nated concessionary tax regime in one of launched the first CFC regime in 1962,” says part-time lecturer in the Tax LL.M. program the seven countries. The article encourages Burnett. “But in some ways CFC regimes are at Sydney University. several countries, Australia included, to go still stuck in the 1960s.” In her paper “From Burnett traces her interest in international beyond the Australian reforms to a model the CFC Babel to the Round Table: Replacing tax law to this central conundrum: com- with a radically different perspective. CFC Regimes for a Collective Attribution merce knows no borders, whereas a state can System,” Burnett suggests a reciprocal group- tax only people and transactions connected Principles on Which the based model for reform. to that state. She also enjoys the worldly Burnett wrote the paper, from which the nature of her research: “I have traveled to 25 Model Is Based following excerpt is taken, under the super- countries in the 25 years of my life so far, and The model’s core principle is that CFC rules vision of Professor H. David Rosenbloom. It I hope to keep increasing this number in con- can be better designed and administered was published in Tax Notes International in junction with my interest in international by domestic governments acting in concert. 2005, and won first prize in both the Theodore tax.” Before arriving at New York University, That is a synthesis of three basic proposi- Tannenwald Jr. Tax Scholarship Competition Burnett worked for the London offices of the tions: First, that discouraging tax-motivated and the International Fiscal Association U.S. law firm Slaughter and May after finish- investment in tax havens and preferential Branch Writing Competition. Burnett also ing her Bachelor of Laws and Bachelor of regimes is the main purpose of CFC rules. won the Flora and Jacob S. Newman Prize for Commerce at the University of Sydney. Second, that addressing the problems

98 THE LAW SCHOOL AUTUMN 2006 caused by havens and preferential regimes That income qualifies for Australia’s active this, and to make consequential amend- is a common goal of at least a substantial income exception, whereas under the ments to its other tax laws like its corpo- group of OECD countries. Third, that col- Japanese CFC rules, Ireland is a tax haven rate income tax rates and preferential tax lective measures are the most effective path and royalties are always attributable. regimes, has to be weighed by the country toward that common goal. against the benefits of joining the reciprocal Benefits of the Model scheme. Certainly, those non-group coun- The Model The model is likely to have a mildly positive tries—income from which is consistently The heart of the model is that among the effect on the revenues of countries in the subject to the high-tax kick-out after prima group there shall be deferral (or exemption, group. The essence of this model is that it facie attribution—might campaign for in territorial systems) of undistributed for- produces no less tax revenue, but features group membership and make the necessary eign business income of CFCs resident in fewer and substantially simplified rules and reforms. A major benefit of group-country any of the other group countries. The group calculations. Compliance and administra- residence is being excused from having to could comprise the United States, Canada, tion savings may be positive. The model’s do the calculations at all. the United Kingdom, France, Germany, concessional items list protects against low- Countries that pointedly maintain or Italy, Norway, Sweden, Finland, Japan, taxed income from group countries slip- develop tax laws substantially different from Australia and New Zealand, and efforts to ping through the net. A collective form may the group norm, such as Ireland, Hong Kong expand the list for legitimate reasons should also be more effective in targeting some of and the Netherlands, present one of the big- be made. It is true that under the current the loopholes and arbitrage opportunities gest knots in the model. Those nations have CFC regimes of the above twelve countries, within and among CFC regimes. developed, diverse economies, and so offer most of the income in question would not Attitudinal change also provides benefits. potential nontax investment attractions. ultimately be attributable. That result, how- The word “foreign” in ‘CFC’ may subtly cast However, their effective rates of tax on busi- ever, is arrived at through wildly varying foreign source income as guilty until proven ness or on particular entities are significantly mechanisms. Additionally, many of these innocent. International tax harmonization lower than the group average and appear to mechanisms, like thresholds of notional tax and comity have increased substantially distort investments toward those countries, payable, require inefficient duplication and since 1962. The prima facie attribution of any thus perpetrating the inefficiency mischief at calculation. To account for small or irrec- foreign-source income that can occur under which antihaven measures are directed. So oncilable differences among respective tax many current CFC regimes, along with com- one could ask, why should interests in those systems of group countries, exceptions to plex CFC compliance requirements, creates countries be exempt from the same sort of exemption or deferral can be adopted for legitimate irritation among corporations attribution that would hit interests in Vanuatu specific items of income taxed concession- engaged in business overseas not primarily and Barbados? Developed economies such ally or not at all in other group countries. motivated by tax considerations. There is, as Ireland are more able than many “black- The main determinant of attribution is however, no intention to deride existing CFC listed” tax havens to bear the cost of restruc- the residence of the CFC, not the source of its regimes; it is the success and wide adop- turing to absorb the withdrawal of foreign income. That is a relatively simple approach tion of CFC regimes since 1962 that has now investment. This is an issue for discussion. in the face of multitier multinationals, and closed the need for their broad application. the reciprocal nature of the model means it In some ways, historical broad-application Conclusion is also effective. A three-tier example illus- CFC legislation could be seen as an example Of all the conceivable ways to structure an trates this. Consider a Japanese entity with of successful legislation—that which even- attribution system to target tax havens and an Australian CFC (CFC 1), which in turn has tually obviates the need for itself. preferential regimes, a reciprocal, jurisdic- a CFC (CFC 2) in a nongroup country. CFC The collective and reciprocal nature of tion-based scheme has much to recommend 2’s income would be exempt from attribution the model addresses many “competitiveness” it. The potential efficiencies from largely in Japan, indeed in any group country other concerns of countries with powerful multi- replacing 12 or more cacophonous CFC than Australia. That is because, under the national corporations, previously a sticking regimes with one system, and categorizing model, Australia is the first and only jurisdic- point preventing CFC reform. The prospect income by jurisdiction rather than by a diz- tion to attribute/tax this income, applying of, for example, a German IT company being zying array of transactions, are considerable. the common CFC rules described herein. allowed to defer Dutch source income while The frank identification of countries that use Ideally, all of the income of nongroup a U.S. IT company must pay current tax tax rates and regimes as incentives to divert CFCs should be presumptively attributable on its Dutch source income is eliminated capital may lead these countries to reform to and subjected to a high-tax kick-out. There through reciprocity and uniformity. reap the benefits of the reciprocal scheme. should be a reasonably high degree of uni- On a practical front, design and technical formity among group countries of the rules The Group analyses of this model will surely spur new by which nongroup country CFC income is The 12 countries suggested as a starting point dilemmas, even before the complications of attributed. Without this, differences could for the group are the United States, Canada, political deal-making. However, those con- be exploited and the rule representing the United Kingdom, France, Germany, Italy, siderations do not derogate from the vision the lowest common denominator in any Norway, Sweden, Finland, Japan, Australia of the article—to propel an awareness of given circumstance would effectively apply and New Zealand. That is already a substan- CFC developments in Australia into an idea across the group. That possibility inheres, tial list, but since inclusiveness is the most for reform that has a clear antihaven philos- for example, in the three-tier example important feature of the group, other coun- ophy, a dream of simplicity and a multilat- described above. The Australian entity may tries should be considered. eral perspective. ■ have been interposed solely to replace the To join the reciprocal group, countries Japanese CFC rules with those of Australia must be prepared to modify their CFC rules The author would like to thank David because, for example, the third-tier entity to, or toward, the consensus model devised Rosenbloom, Ruth Mason and the rest of the is earning active royalty income in Ireland. by the group. A country’s willingness to do tax faculty for their support and suggestions.

AUTUMN 2006 THE LAW SCHOOL 99 STUDENT SPOTLIGHT

Evaluating a New Judicial Remedy for Defective Agency Rulemakings

or many reasons, Congress often paints with a broad brush when enacting leg- F islation. In any particular case it may do so because it wants to preserve flexibility, because it lacks scientific or technical expertise, or because hashing out the details could splinter a fragile political coalition. Regardless of the cause, the result is that administrative agencies have lots of choices in how they implement statutes. The Administrative Procedure Act (APA) couples this discretion with the requirement that agencies explain the choices they make. Of course, agencies don’t always live up to this obligation. When regulations lack an explicit, complete and logical rationale, they are vulnerable to lawsuits that seek to strike them down for being, in the APA’s words, “arbitrary and capricious.” In general, whenever a reviewing court agrees with a litigant that a particular regulation was inadequately explained, the court vacates that regulation and leaves the agency to choose between modifying the regulation’s substance, supplying a new explanation for the old regulation or, possibly, abandoning the attempt to regulate by promulgating comprehensive rules. Courts make a point of remaining agnostic about By kristina Daugirdas which option the agencies pursue. For the agencies, coming up with new explanations—or new regulations— aving graduated with honors in honors during her three years at NYU. She demands substantial investment of time and public policy from Brown Univer- was named a Pomeroy Scholar and Butler resources. In the meantime, a court’s deci- sity in 1999, Kristina Daugirdas ’05 Scholar for being one of the top 10 students sion to vacate leaves a regulatory gap, and the particularly enjoyed her first-year at the conclusion of her first and second consequences of such a gap can be severe. Administrative and Regulatory years, respectively, and won the Maurice For example, the National Highway Traffic State class, which gave her a new Goodman Memorial Prize for outstanding Safety Administration estimates that had the H vantage point from which to analyze and scholarship and character and the Edward D.C. Circuit not vacated an early rule requir- understand government agencies. A question Weinfeld Prize for distinguished scholarship ing air bags in automobiles, thousands of that intrigued her was, What shapes an agen- in Civil Procedure and Federal Courts. She lives would have been saved and millions of cy’s response when its policy is successfully was also awarded the Furman Scholarship, serious injuries would have been prevented challenged in court? One factor—whether which goes to students who show particu- between 1972 and 1987. In another instance, the court vacated the flawed agency rules or lar promise in becoming legal academics. a court’s decision to vacate a rule promul- instead allowed such rules to remain in place Daugirdas plans to become an academic gated 10 years earlier by the Environmental while the agency reworked them—appeared focusing in administrative and international Protection Agency threatened to invalidate important, but “I was surprised to find that law. “I enjoy the challenge of making sense of scores of criminal convictions and civil fines. many judicial opinions devoted little space new topics in a creative way,” she says. In general, the disruption caused by vacat- to it,” she says. This observation formed the Before entering law school, Daugirdas ing agency action is greatest when a court starting point for the paper excerpted here, earned a postgraduate diploma in econom- strikes down rules that play an integral role “Evaluating Remand Without Vacatur: A ics, with distinction, from the London School in a particular regulatory regime, and upon New Judicial Remedy for Defective Agency of Economics in 2002. After graduating from which both regulated entities and regulatory Rulemakings,” which was published in the NYU, Daugirdas clerked for the Honorable beneficiaries had come to rely. May 2005 issue of the NYU Law Review. Stephen F. Williams, United States Court There is an alternative to vacating rules In addition to winning the Paul D. of Appeals for the District of Columbia for inadequate explanation. In the last Kaufman Memorial Award for the most Circuit. This fall she will join the Office of decade or so, the D.C. Circuit has frequently outstanding note published in the Law the Legal Adviser at the State Department in remanded rules to agencies without vacat- Review, Daugirdas has received numerous Washington, D.C. ing them. When a court remands a rule

100 THE LAW SCHOOL AUTUMN 2006 without vacating it, the agency can con- ne key problem that the survey iden- have emphasized these troubling longer- tinue to implement the challenged regula- tifies is that when panels of the D.C. term incentives, empirical evidence of how tion while it addresses the flaws identified O Circuit apply the Allied-Signal test, agencies have actually responded to spe- by the reviewing court. As when rules are they frequently neglect the first of its two cific decisions highlights the problematic vacated, the agency can cure the defects by prongs. With some regularity, courts incentives in the particular cases in which repromulgating the same rule with a differ- evaluate the seriousness of the deficien- RWV is applied. Specifically, in RWV cases ent rationale or by promulgating a different cies in the agency’s reasoning so leniently it may be rational for an agency to respond rule. Remand without vacatur (RWV) can that the test fails to serve as a meaningful as though the court had affirmed the chal- be an attractive option because it allows an screening device for the appropriateness of lenged rule instead of finding it flawed. agency to bolster an inadequate explana- RWV. The graver the deficiency, the more Agencies behave strategically; their tion without being subjected to a high-cost likely the agency will adopt a different resources are limited, and they are con- remedy that interrupts its ability to imple- policy on remand, and the less compelling scious of the costs and benefits of choos- ment a particular regulatory regime. is the argument for RWV. Because a differ- ing particular courses of action. On the one The case for RWV is strongest where the ent policy would require parties to change hand, agencies do not gain very much from costs of vacating rules are very high while their behavior, RWV will delay but not revising inadequate explanations because the flaw identified by the reviewing court is avoid whatever disruption vacatur might they already have the authority to continue relatively minor, so that the benefits derived bring. The D.C. Circuit could improve implementing the challenged rules. On the from a more thoroughly reasoned decision its targeting of the remedy by evaluating other hand, the costs can be significant. are comparatively small. The benefits might more stringently the probability that on Allocating resources to address the court’s be limited because almost any agency remand the agency will conclude that its remand may not be a trivial matter; agen- action can be vulnerable to attack for inad- initial policy choice is insupportable. cies can secure additional staff or funds to equate explanation. Some commenta- Still, some analysis is better than no comply with court decisions only rarely, so tors have concluded that “finding a gap, or analysis. Sometimes the court decides not devoting resources to the remand requires many gaps, in any regulation should be to vacate without any discussion whatso- pulling them away from other areas. In this child’s play.” While this is an overstatement, ever. In one case, the majority remanded context, it is unsurprising that empirical evi- it is true that gaps identified during judicial a rule without specifying whether it had dence of how agencies have responded to review may not reflect genuine shortcom- vacated the rule; only the dissenting judge’s the D.C. Circuit’s recent RWV decisions indi- ings in the agency’s reasoning process. For objection made clear that the majority had cates that fortifying explanations that courts example, one former D.C. Circuit judge chosen RWV. Given its importance to the found inadequate is not a high priority. Courts are not powerless in the face of these incentives, however. They possess Had the D.C. Circuit not vacated an early tools to spur agencies into action. For example, courts can limit the time that agencies rule requiring air bags in automobiles, have to correct the deficiencies in their explanations by vacating the rules if the thousands of lives might have been agency should fail to do so within a particu- saved and millions of serious injuries lar window. Interestingly, the D.C. Circuit used such tools more rarely in recent years prevented between 1972 and 1987. than in previous decades: judicial decisions were more likely to add “teeth” to the RWV remedy in the years before it became a noted that most remands for inadequate agency, to regulated entities, and to regu- more common one.… explanation are “caused by the agency’s fail- latory beneficiaries, the lack of attention ure to communicate or explain to generalist devoted to the decision whether to vacate ourts exercise enormous discretion in judges what they are doing, not by the agen- in this and some other cases is surprising deciding whether or not to vacate regu- cy’s failure to do enough research or garner and troubling. The absence of discussion C lations while agencies correct the defects sufficient expert opinions for the record.” in some published opinions obscures the in their explanations. Leaving regulations The D.C. Circuit has articulated a sen- D.C. Circuit’s decisionmaking process and in place can provide significant health and sible test for deciding whether RWV is an makes it more difficult to evaluate whether safety protection to regulatory beneficiaries appropriate remedy in Allied-Signal v. U.S. the court is using RWV appropriately and but also imposes costs on regulated entities; Nuclear Regulatory Commission. That test effectively.… for both parties the presence or absence of weighs (1) the seriousness of the deficien- regulation has significant consequences cies in the agency’s action against (2) the ven if courts perfectly targeted RWV that may be counted in lives saved or dol- disruptive consequences of vacating the to only those cases in which a rigor- lars expended. Before applying RWV, courts challenged regulations. Theoretically, it E ous application of the Allied-Signal test should ensure that the remedy is justified should identify exactly those cases where indicated it was appropriate, there’s still and should take account of how agencies RWV is most justified. But how well does the problem of the incentives agencies are likely to respond. Unless they do so, practice align with theory? A comprehen- face after courts have issued their opinions. courts are unlikely to make effective use of sive survey of the D.C. Circuit’s RWV deci- Previous literature has focused on the pos- this potentially valuable remedy. ■ sions, considered together with empirical sibility that agencies might become sloppier evidence describing how agencies respond in explaining their future regulatory choices The author gratefully acknowledges the assis- to those decisions, suggests there’s room because RWV lowers the cost to the agency tance of Professors Richard Pildes, Rachel for improvement.… of losing in court. While commentators Barkow and Richard Stewart.

AUTUMN 2006 THE LAW SCHOOL 101 Around the Law School

POWERS ON POWER: The Law School invited respected—or even controversial—authorities to address pressing questions about the state of our world and how it’s run. John Dean, above, former counsel to President Richard Nixon, invoked the notorious lessons of the Watergate era. More wisdom came from Supreme Court Justice Stephen Breyer, Constitutional Court of Germany Judge Gertrude Lübbe-Wolff, the New Republic’s Leon Wieseltier, former Deputy Treasury Secretary Roger Altman and others. How Much Executive Power lenge an abstract terrorist threat. Congress was explicitly to blame, concurred Michael Vatis, a lawyer at Steptoe & Johnson in Is Too Much? It All Depends... Washington, D.C., for allowing the executive he Center on Law and Security at the the idea of checks and balances presumes branch to waylay civil liberties by authoriz- NYU School of Law convened top lawyers, Congress’s desire to fully participate in ing clandestine wiretaps on U.S. citizens and T academics, historians, journalists and governing as well as oversight. Sidney indefinitely detaining enemy combatants. If politicians to argue critical topics concern- Blumenthal, former adviser to President the president is allowed to take power, Vatis ing the defined roles of the three branches of Clinton, agreed that partisan abuse is “politi- said, then he’ll take it. Patrick Philbin, for- American government, and how they inter- cal in character, fundamentally.” But Judge mer associate deputy attorney general at act during times of war and peace. The day- Richard Posner of the U.S. Court of Appeals the Department of Justice, countered that long conversation, “Presidential Powers: for the Seventh Circuit, and Viet Dinh, a the war on terror “is a very different war, but An American Debate,” took place last April former U.S. assistant attorney general for a war nonetheless” and the President must prior to the Supreme Court’s Hamdan deci- legal policy from 2001 to 2003, disagreed. be allowed to act. sion vacating controversial policies regard- “Congress is inadequate to deal with security Donna Newman, the New York City crim ing military tribunals, defining enemy com- and dispatch in matters of national secu- inal defense attorney assigned in 2002 to batants and stressing the relevancy of the rity,” said Dinh. Laws passed by Congress represent Jose Padilla, a U.S. citizen deemed Geneva Conventions. “John Dean asked me “encourage the President to claim and exer- an enemy combatant, said that she was what we hope to accomplish today,” Karen cise inherent powers,” insisted Posner, par- dumbfounded by the disregard for due pro- Greenberg, executive director of the cen- ticularly in light of new threats to the U.S. cess where her client was concerned. The ter, said when she introduced the former Former Nebraska senator, and now pres- President has constructed an “atmosphere counsel to President Richard Nixon, and ident of the New School, Bob Kerrey offered of fear” as a basis for grabbing power. “It’s the event’s keynote speaker. “I told him, ‘a harsher criticism of Congress. The War a fear of liberty, not terrorism,” she said, “to sustained, engaged dialogue; there’s much Powers Resolution, Kerrey said, did not pro- somehow say that freedom is what makes too little of it in the United States.’” vide carte blanche to any president to chal- us vulnerable.” ■ Dean, whose new book, Conservatives Without Conscience, was published in July 2006, and whose bona fides on the topic of executive overreaching are impeccable, said, “After Watergate, I thought the imperial presidency had made its way into the history books.” His experiences as counsel for the besmirched Nixon administration provided a sobering backdrop for the day’s discussions. “Today,” he said, “the lesson of Watergate is, ‘Don’t get caught, and if you do, tough it out and say you’ve got the power.’” He talked about the bad old days in the Nixon White House—recall- ing being ordered to arrange a punitive tax audit for the Scanlon Monthly, which had accused then-Vice President Spiro Agnew of attempting to repeal the Bill of Rights and to cancel the 1972 elections. He also cited Jack Caulfield’s quashed plot to firebomb the Brookings Institution in retaliation for its criticism of the Vietnam War. While these abuses of power were extreme, he then described Executive Order 13233, which annulled a 1978 law that turns presidential records over to the public 12 years after an executive’s departure. President Bush signed the order within his first year of office—just weeks after 9/11. The level of secrecy of this administration, Dean warned, has “reached a startling stage.” The rest of the day was devoted to mostly polite but sometimes heated conversations moderated by the faculty codirectors of the center, Professors Noah Feldman, David Golove, Stephen Holmes and Richard Pildes. SQUARING OFF: From left, top: former Clinton adviser Sidney Blumenthal, CLS Executive Director Karen Greenberg and former U.S. Assistant Attorney General Viet Dinh; Middle: Attorney Michael Vatis, former The framers of the constitution had not Senator and President of the New School Bob Kerrey and Professor Richard Pildes; Bottom: Judge Richard predicted political parties, said Pildes, and Posner, former Associate Deputy Attorney General Patrick Philbin and federal litigator Donna Newman.

AUTUMN 2006 THE LAW SCHOOL 103 AROUND THE LAW SCHOOL

Three Conversations Between Western Nations

Professor Richard Pildes and Justice Stephen Breyer. Upper right: Professor Samuel Issacharoff and Jonathan Faull. Judge Gertrude Lübbe-Wolff and Professor Joseph Weiler.

On September 20, 2005, Federal Con- administration, and had a hand in nominat- Investigation and Jonathan Faull, director stitutional Court of Germany Judge ing some 200 federal judges to the bench. “I general of justice, freedom and security at I. Gertrude Lübbe-Wolff and United think the actual operation of our system has the European Commission, discussed a States Supreme Court Justice Stephen an element of politics, but it is much less global response to the threat of terrorism. Breyer sat down for the first in a series of political than the Europeans think,” said Moderated by Bonnie and Richard Reiss three Transatlantic Dialogues. Hosted by Breyer, “because by and large it is in the Professor of Constitutional Law Samuel the Hauser Global Law School Program, the politician’s interest to appoint a qualified Issacharoff and New York University Pro talks were meant to strengthen the ties person who will be recognized as such, by fessor of Politics Martin Schain, the dis- between the European Union and the the Bar and the lawyers in the community.” cussion centered on how different nations, United States. Sudler Family Professor of Lübbe-Wolff then asked Breyer if he drawing on different legal traditions, must Constitutional Law Richard Pildes and thought transparency was a unique char- work together. University Professor and Joseph Straus acteristic of the American system. “The cri- On both sides of the Atlantic, post-9/11, Professor of Law Joseph Weiler together terion for selection you mentioned—this there was a perception that existing law was moderated the far-ranging and often per- incentive to select the best people—works inadequate to meet the new threat. In the sonal conversation. better in a system where the individual U.S., counterterrorism laws “read like a cob- At the time, the confirmation hearings judge is more visible,” she posited. bled-together greatest hits from the federal of now-Chief Justice John Roberts Jr. domi- But Breyer demurred, saying he won- code,” said Issacharoff. Much has changed nated the headlines, and the retirement of dered if he was the best person to ask, since in the last four years, he said, however, and Justice Sandra Day O’Connor was immi- he’s been only on the receiving end of a a reliance on interstate commerce statutes nent, so appointment methods were on Senate inquiry. “For me to talk about the has been overtaken by new antiterrorism everyone’s mind. appointment process to the Supreme Court legislation. For the European Union, the key “There is no hearing like here in the is like looking at the recipe for Chicken à la question has been how nations can work United States, with the Senate Judicial Com King,” he said slyly, “from the point of view together to investigate and prosecute terror- mittee,” said Lübbe-Wolff of the German of the chicken.” ists. There is no Europe-wide criminal code. system. “But there is an informal agreement Due to increasingly porous national borders that judges will be elected in such a way as On November 23, the Hauser Global since the ’90s, the E.U. can no longer rely on to mirror the proportions of the different Law School and the Center on Law border control; member states must rely on party groups in Parliament.” II. and Security jointly hosted a Transat the cooperation of law enforcement bodies. Breyer was chief counsel to the Senate lantic Dialogue at which Valerie E. Caproni, One new piece of legislation, the European Judiciary Committee during the Carter general counsel of the Federal Bureau of Arrest Warrant, was pushed through quickly

104 THE LAW SCHOOL AUTUMN 2006 post-9/11. After the attempted bombings in When Kumm asked Bruton about the In fact, Bruton seemed to suggest that London on July 21, 2005, the warrant allowed 2004 debate among European nations the E.U. might do well to take a page from for one suspect who was arrested in Rome over whether to include a reference to America’s patriotic playbook. In light of to be extradited back to the United Kingdom Christianity in the E.U. constitution’s pre- the E.U. constitution’s rejection by voters within 41 days, as opposed to months—if not amble (the final draft made no explicit refin France and the Netherlands, he favors years or if at all—before the law passed. erence), he replied that he’d been pro-inclu- building on the existing constitutional draft However, said Faull, despite progress sion but accepted the outcome. “I think to by seeking new inclusions to make the between countries, cooperation has often make a reference to the source of values of document more palatable to the European worked on a bilateral basis, rather than Europeans over the last 2,000 years and to public, but stressed that such a move was continent-wide. Some countries just don’t leave belief in God out of that is ludicrous, not enough. “[E.U. officials] have to recog- have relationships with others, he said. really, but, on the other hand,” said Bruton, nize that anything that’s built on the sort of Other legislation being considered would “[that reference] isn’t critical to the effective- voluntaristic foundation that the European require telecommunications companies ness of the constitution.” Union is built on,” said Bruton, “[has] to to retain traffic information from Internet As far as relations between the E.U. and invest in all that patriotism creation activ- communications. But huge cyber-dragnets the U.S., Bruton felt at the time that the dip- ity…. The elites that have created Europe are not always the most effective way to lomatic situation had improved markedly have been so convinced of the ultimate per- gather useful intelligence; rather, keeping since President George W. Bush’s reelec- suasiveness of their own ideas...that they close tabs on those communities that may tion in 2004 as the Bush administration feel uncomfortable [drumming up popular give rise to extremism produces the most and the E.U. have more effectively coordi- support for the Union].... But the Union actionable information. The FBI struggles nated their approaches to such issues as won’t stay together, I think, without the with being dislocated from communities Syria’s occupation of and withdrawal from constructive harnessing of people’s natural at the grass roots level. “We are not really Lebanon, and Iran and the Middle East wish to affiliate to something bigger than boots on the ground in this effort,” said peace process. themselves.” —Atticus Gannaway Caproni. As pointed out most clearly by the 9/11 Commission, lack of cooperation between U.S. law enforcement agencies has presented serious obstacles to the effective Transcending Violence use of intelligence. In the United Kingdom, says Faull, this is less of a problem as there isn’t an equivalent split between local and national law enforcement. “In a way it’s a lot easier for us,” he said, “because we don’t have the FBI, we don’t have agents.” In the wake of Abu Ghraib and other rev- elations, many viewed the U.S. approach to counterterrorism with deep suspicion last fall. “The people who work at the FBI are Americans too,” said Caproni. From their perspective, there is a “strong desire that these [Patriot Act] provisions do not sunset,” she said. “The police and law enforcement agencies love information…they have an insa- tiable appetite for information….” “[But] they can’t always have what they want,” countered Faull. “It’s important to remember,” he said, “that, within living memory, many European nations have been under dictatorships or occupied by foreign powers, so the notion of governments operating outside of the law for any reason is abhorrent.” All rights reserved. © Jack McCoy reserved.All rights © Jack Linda Mills listens to panelist David Lewis, who counsels offenders on breaking the cycle of violence. John Bruton, the E.U. ambassador to the U.S., joined Professor Mattias The Center on Violence and Recovery, members talk openly to get to the root III. Kumm for the final dialogue in founded by Professor of Social Work and causes of, and move beyond, the violent in- March. Bruton served as Ireland’s minis- Affiliated Professor of Law Linda Mills, orga- cidents themselves. “Domestic violence is a nized three panel discussions last year, each dynamic,” said Mills, rather than an isolated ter of finance and minister of industry and addressing the use of restorative justice in occurrence or series of occurrences. As such, commerce before becoming prime minis- cases of violent crime. The last of the panels, healing must be a reciprocal process. ter in 1994. After leaving that office in 1997, “Minding the Gap,” highlighted the center’s The other two panels in the series were Bruton contributed to the Good Friday innovative pilot program in Nogales, Ari- “Bad to the Bone: Rethinking Offender Re- peace agreement in April 1998, and served zona, that diverts prison sentences for do- covery and Rehabilitation” and “Tell Me mestic abusers to counseling in the form of What a Victim Looks Like: The Problem with as an Irish delegate during the drafting peacemaking circles. In peacemaking circles, a One-Treatment-Fits-All Approach to Inti- of the E.U.’s constitution. In 2004, he was victims, their offenders and other family mate Abuse.” appointed to his current post.

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Among the developments that partici- A Place for Serious Discussion pants focused on were the increasing num- n the world of counterterrorism, change cialties and niche operations. But the con- ber of “homegrown” or “self-starter” terror- has been coming fast. Bombings in ference, held at NYU’s La Pietra campus just ist cells, such as those that carried out the I London, Jordan and the Sinai Peninsula, outside Florence, Italy, continues to cover 2004 bombings in Madrid and the 2005 and a deepening insurgency in Iraq are parts the waterfront, bringing together experts attacks on the London Tube. In a session of one side of the story; others are the raw and practitioners in areas from prisoner devoted to “The New Face of Radicalization and challenging relations between Muslim interrogation to geopolitics, from urban in Europe and America,” a series of speak- communities and police, between partners police work to constitutional law and from ers noted the powerful effect that the war in in the war on terror on opposite sides of the terrorist finances to war reporting. Iraq has had on accelerating the spread of Atlantic and between policymakers and This was the center’s third annual con- radicalism. As one senior European pros- their critics within the United States. ference on “Prosecuting Terrorism: ecutor put it in the session, which was As a result, there has been much to take The Global Challenge,” and as in the formally off the record, “War in Iraq stock of, and for those who attended the previous two years, the core of the provided an opportunity for propa- annual conference of the NYU Center on program was provided by top law ganda and has led to a total failure Law and Security over the Memorial Day enforcement officials from the United in combating terror.” A strong feel- weekend, the opportunity to compare notes States and Europe, who addressed such ing that things would get worse before was a welcome one. Like any fast-grow- contentious issues as torture, renditions they got better pervaded the discussion. ing industry, terrorism studies is rapidly and the detention facility at Guantánamo. European law enforcement would not only becoming divided into a patchwork of spe- Among those present were U.S. Solicitor have to grapple with the newly radicalized General Paul Clement, French investigating activists, but also with “bleedout” from Iraq. magistrate Jean-Louis Bruguiere, Spanish According to one European expert speaking investigating magistrate and the Center on off the record, Abu Musab al-Zarqawi, the Law and Security’s Distinguished Fellow jihadist leader in Iraq (who was killed in Baltasar Garzón, Italy’s chief antiterrorism June shortly after the La Pietra conference prosecutor Armando Spataro and former ended), “had been turning away foreign U.S. Assistant Attorney General Viet Dinh. fighters in Iraq, urging them instead to pre- The same sharp divide that was present pare for conflict in their home countries.” last year between U.S. advocates of a “war The Middle East figured prominently in paradigm” in the struggle against terror and the proceedings, with both Salameh Nematt, their European and American critics was Washington correspondent for the Arabic apparent again in discussions of such con- daily al-Hayat, and Emmanuel Sivan of troversial U.S. practices as the detention of Hebrew University asserting that it was the terrorist suspects at Guantánamo, the “black region most affected by the Islamist radical- Baltasar Garzón sites” used for incarcerating “high-value” ism. As Sivan put it, “You cannot find a coun- al Qaeda personnel and aggressive inter- try outside Kuwait and the [United Arab] rogation practices. Joshua Dratel, a New Emirates that has not had an operation moti- York-based defense attorney who counts vated by al Qaeda.” The likelihood of esca- many accused of terrorism among his cli- lated violence in the region due to continued ents, spoke more pointedly than most—but turmoil in Iraq was noted. In the opinion of captured the critics’ position—when he New Yorker journalist Nir Rosen, “Things are declared that “the U.S. has adopted a war much worse than is thought.” paradigm but opted out of the laws of war.” Other threads of discussion that ran Still, there was more of a sense on both through the two-day event concerned such sides that in the “long war,” as Washington issues as the ongoing tensions between the now calls the conflict with jihadists, the government and the press and how that existing approach will be hard to sustain. affects the war on terror, and the growing

Armando Spataro The alternative will be more emphasis on politicization of issues related to counterter- the “law enforcement” strategy preferred rorism. As faculty codirector of the Center by European governments, which empha- on Law and Security and Sudler Family sizes working through traditional court pro- Professor of Constitutional Law Richard ceedings and evidentiary and incarceration Pildes noted, this has become an endemic practices. (The change of tone preceded the problem, and “we can’t only blame the poli- Supreme Court’s June 29 ruling in Hamdan ticians.” Questions, he pointed out, such v. Rumsfeld, which undermined the asser- as “how early we can define something as tion of virtually unlimited executive branch a crime” were generating more heat than prerogatives. As Karen Greenberg, the cen- light, and yet answers were urgently needed ter’s executive director, said after the deci- to deal with the terrorist threat. Even if, in sion, “Hamdan demonstrates how impor- public, polarization continues to be the tant it is for the U.S. to emphasize the law norm, the Center on Law and Security’s enforcement and criminal justice system as conference provided a forum where politics opposed to the war paradigm in going for- took a back seat to substantive discussion of Viet Dinh ward with future counterterrorism efforts.”) actual problems. —Daniel Benjamin

106 THE LAW SCHOOL AUTUMN 2006 Kofi’s Choice: Duty Pulls Annan in Two Directions On February 24, 2006, the Institute for In- reform always begs the question of whether bly, which culminates in a summit meet- ternational Law and Justice (IILJ) convened that reform must take place primarily in the ing on Sept. 14-16. The report was broad in a day-long conference on The Role of the structures, procedures and personnel that scope, seeking to define a new security con- United Nations Secretary-General that in- make up the United Nations, or in the will- sensus based on the interdependence of cluded the participation of Sir Emyr Jones ingness of member states to use them. threats and responses, and narrow in detail, Parry, permanent representative of the Unit- As the United Nations prepares for its setting specific targets for official developed Kingdom to the U.N., former Under-Secre- 60th General Assembly in September, simi- ment assistance, calling for the creation tary-General Sir Brian Urquhart and Under- lar questions of principles, practice and of a Human Rights Council and a Peace- Secretary-General for Communications and expectations confront the member states Building Commission, and outlining a long- Public Information Shashi Tharoor, among and the Secretariat. awaited definition of terrorism. more than 100 others. Simon Chesterman, In the past, major reform has flowed As the member states gather in New York, then-director of the IILJ, penned this op-ed a from political will. World War I led to the there will be much talk of consensus, though few months prior, in which he describes the establishment of the League of Nations, this is a veil for the underlying issues of poli- precarious political and moral position of World War II to the U.N. The only major tics and expectations. This has been evident the U.N. and its secretary-general. This piece change in U.N. institutions in the past two in the paralyzing debate over seats on the appeared in the International Herald Tri- generations was a result of decolonization, Council, which has sucked the oxygen from bune on September 9, 2005. which doubled its membership in the 1960s. other issues and divided the member states in a process that was meant to unite them. The give and take of political negotia tions—most recently including U.S. Ambas sador John Bolton’s editorial scythe—has already challenged Annan’s agenda, but he has consciously put pressure on member states not to leave New York empty-handed. He has also tied his own legacy to the outcome of the push for reform. This is certainly a more desirable legacy than any other news story from the United Nations in the past two years, but it points to the ambiguous position occupied by the secretary-general. At the heart of this is a basic question about the nature of the United Nations: Is it a thing, or a place? Is it a standing diplomatic conference, where member states meet and discuss issues, or is it an independent entity with a moral and political role of its own? It is, of course, both—but that dual- ity becomes schizophrenia in the person of the secretary-general. As chief administrative officer of the organization, he must implement the wishes of the members; as a moral and political operator he is frequently

Conference organizer and then-director of the Institute for International Law and Justice Simon Chesterman, called upon to be the embodiment of their left, with Sir Emyr Jones Parry, permanent representative of the United Kingdom to the United Nations. better natures. The current reform process is collapsing in part because the secretary-general over- The secretary-general of the United Today, however, that process of reform reached in the breadth of his vision and is Nations is a unique figure in world politics. has been turned on its head. Instead of being now underused by the membership. Forced At once civil servant and secular pope, he or driven by political will, the present institu- to the sidelines by states jealous of their she depends on states for both the legitimacy tional reform proposals seek to create it. Like sovereignty and by his own tarnished status, and resources that make the United Nations fairies and paper money, the U.N. ceases to the reform process draws not on the better possible. The formal powers of the office are exist if people stop believing in it. This was nature of states but races towards their low- limited but have been supplemented over the existential crisis posed by the war in Iraq. est common denominator. time by delegated authority, political influ- Annan has been at the heart of that Stalin famously underestimated the ence, and moral standing. All have been effort to rebuild faith in the U.N., but it power of the pope by asking how many challenged by the recent turbulent period for has coincided with the period in his career military divisions he commanded. The sec- the United Nations and the incumbent sec- when his political and moral authority has retary-general, Nobel Peace Prize notwith- retary-general, Kofi Annan, in particular. been at its weakest. standing, knows that he commands no divi- This is of particular relevance to the cur- His report, “In Larger Freedom,” was in- sions. The problem, as the U.N. celebrates rent issue of U.N. reform, which Annan cut tended to set both the tone and the sub a grim 60th birthday, is that he now also short his vacation to salvage. Discussion of stantive agenda for the next General Assem lacks a congregation.

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states have picked up the slack. Professional Reforming Courts from Within advancement of minorities is another issue being comprehensively addressed by state supreme courts at a time when federal funds for programs to encourage minority hiring are declining. The Georgia, Kentucky and Indiana state supreme courts have created clerkship programs for minorities, something that Shepard says “adds not only valuable experience, but valuable cachet to a legal career.” With the greater importance of the state supreme courts come more expansive functions and, naturally, an increase in administrative responsibilities. Shepard noted a trend in the state judicial systems of California, Iowa, Kentucky and Minnesota toward “unification,” wherein the entire state’s court system, from top to bottom, is funded by the state. Previously, local trial Chief Justice Randall Shepard of the Supreme Court of Indiana gives the Brennan Lecture. courts were funded by county governments, while the appellate courts were the financial n his lecture, “The New Role of State decisions and reforms that have not only responsibility of the state government. Supreme Courts as Engines of Court affected the judiciary and the law, but influ- “There is a valuable lesson embedded I Reform,” Chief Justice Randall Shepard enced society, scholarship and academics. in this assessment of the new work under- of the Supreme Court of Indiana argued Shepard cited the landmark decisions taken by these institutions that used to be that state supreme courts have undertaken on civil unions and gay marriage from the solely appellate bodies,” Shepard said, look- important legislative duties and, along the supreme courts of Vermont and Massachu ing toward the future and the changing role way, have brought about significant social, setts, respectively, as recent examples of of the state supreme courts in American procedural and jurisprudential changes. social change. He also said changes concern- legal society. Shepard also looked back to Delivering the 12th Annual Justice William ing medical malpractice and criminal law the past, quoting none other than Justice J. Brennan Jr. Lecture on State Courts have been affected by state rulings. He cred- Brennan, who said that it has always been and Social Justice, cosponsored by the ited states for having been at the forefront of the judiciary’s core responsibility “to help Dwight D. Opperman Institute of Judicial equalizing access to legal services for the our fellow citizens in fostering a decent, safe Administration and the Brennan Center poor as federal budget cuts have weakened and prosperous society by building a system for Justice, Shepard discussed recent state legal aid to the indigent since the 1980s and of justice that befits a great nation.”■ Bell Measures Progress at 10th Annual Lecture

hat could be better than spending voters are, in Bell’s estimation, just a few of ning had begun with a spirited celebration: your 75th birthday surrounded by the issues that need the critical attention of His wife Janet—“the force of nature behind W friends and family? Just ask Professor all individuals, not just minorities. the Bell Lecture,” said NYU President John Derrick Bell Jr., who on November 3, 2005 Despite the serious problems considered, Sexton—brought the audience to its feet for gave the 10th Annual Derrick Bell Lecture a festive atmosphere prevailed. The eve- a jubilant “Happy Birthday” sing-along. ■ on Race in American Society. In previous years, the Bell Lecture has invited outstanding scholars to the Law School to discuss current trends or topics on race and class in the United States. Previous lecturers have included Harvard Professor Charles Ogletree and Professor Cheryl Harris of the UCLA School of Law. In a slight twist this year, Bell himself chose to deliver his lecture, “And We Are Still Not Saved: 21st Century Constitutional Conflicts.” Bell described the ubiquitous social crises facing all Americans in the first decade of the 21st century. A collective rising fear over terrorism and the hopeless situation in Iraq, a growing racial and economic chasm

separating the rich from the poor, and the A Family Valued: Professor Derrick Bell Jr. celebrates his 75th birthday with his wife, Janet, and disenfranchisement of African-American his children, from left, Carter, Douglass and Derrick III.

108 THE LAW SCHOOL AUTUMN 2006 When a Judge’s Opinion Is Just Dictum only as a consequence of the performance of their constitutional duty to decide cases,” have been unconstitutionally taken into Leval said. “They have no constitutional consideration in other rulings. authority to establish law otherwise.” Derived from Latin, the term dictum In exemplifying the inappropriate use developed in the 18th century to refer to any of dicta when deciding a case, Leval cited point of view conveyed by a judge that has Myers v. Loudoun County Public Schools not arisen in the determination of a par- in which the U.S. Court of Appeals for the ticular case. Leval was critical of judges who, Fourth Circuit upheld the Supreme Court’s in deciding cases, use dicta as precedents decision that the Pledge of Allegiance can be rather than ignoring them altogether. “In said in public schools. The court referenced doing so, we fail to deliberate on the ques- not the holding by the Supreme Court, but tions being decided,” said Leval. “Today, rather a dictum written in that decision. dicta flex muscle to which I submit they are “If established law governs the case, the not entitled by constitutional right.” court has a duty to follow the established Professor Norman Dorsen, director of the James Madison Lecture series, with this year’s speaker, Leval drew a distinction between relying law and if the established law is inclusive, the Honorable Pierre Leval. on dicta in judicial decisions and stare deci- the court is obligated under the constitution sis, or adhering to that which has already to adjudicate,” Leval explained. “The circuit ’m going to talk to you about something been decided. Stare decisis relies on prec- court did neither.” “ really trivial,” said Judge Pierre Leval of edent and previous holdings to safeguard Leval suggested a cause for this trend, Ithe United States Court of Appeals for the judicial decisions from capriciousness and pointing out that the role of the judiciary has Second Circuit, delivering the 45th James the whimsy of judges. Dicta, because they shifted from settling everyday decisions to Madison Lecture last October. His speech, have no legislative weight, Leval explained, addressing deeper social problems, which “Judging Under the Constitution: Dicta cannot be challenged and should therefore can inflate the self-image of judges and the About Dictum,” explored the inconsequen- not be referenced in decisions. “It is true in weight of their personal opinions. He said, tial written tangents and judicial opinions deciding cases under stare decisis, courts “We’ve come to see ourselves as something expressed in court decisions that, says Leval, do inevitably make law, but they make law considerably grander.” ■ Law School Exchanges Influence U.S. and China

ecent legal exchange programs between don’t think the human rights groups could group; the message alerted journalists that law schools in the United States and be as effective as they are without us work- the Chinese government was preparing for R China have helped change Chinese ing on the inside,” he said. possible turmoil on the 15th anniversary of laws as well as U.S. perceptions of the Others described the process as col- the Tiananmen Square protests of 1989. As Chinese legal system. That conclusion was laborative, saying U.S. lawyers weren’t just one participant said about human rights one of the major themes to emerge from the imposing America’s legal system on China. abuses in China: “We can’t let the short 11th Annual Timothy A. Gelatt Dialogue on “We’re not trying to bring the gospel to them term go while we look at the long term.” ■ Law and Development in Asia. and convert the heathens,” said Professor Around two dozen law school profes- Jerome Cohen, who moderated the dialogue. sors and representatives from nonprofit He added that the U.S. legal scholars were and human rights organizations assembled “actively welcomed by the Chinese govern- Gruss Lecture at the Law School last January to examine ment.” Nonetheless, some observers still joint U.S.-Chinese efforts in law reform and see efforts to reform China’s legal system as legal education in China. Two decades ago, “missionary” work—a perception Cohen dis- China began a major overhaul of its legal putes, and also one that can cause friction. system, with U.S. law schools playing a large “We don’t overlook—any of us—that we’re role in the ongoing evolution. doing controversial work,” he said. Paul Gewirtz, Potter Stewart Professor of While many of the participants pointed Constitutional Law at Yale Law School, and to reforms in China, some complained that director of Yale’s China Law Center, estab- the legal system still needed to improve. lished in 1999, said that the center has suc- Criminal defense attorney Jack Littman, cessfully worked with Chinese legal scholars who was in the audience, said he was con- On November 22, 2005, Leon Wieseltier, the literary editor of the New Republic and municipal governments to update crim- cerned about the role that companies like (above right, with Professor Noah Feld- inal laws, including helping some Chinese Yahoo and Microsoft play in the Chinese man), delivered the annual Caroline and municipalities implement alternative sen- legal system. In a well-publicized case last Joseph S. Gruss Lecture, presented by tences to incarceration. The reform pro- year, Yahoo allegedly provided information the Hauser Global Law School Program. “Law and Patience: Unenthusiastic Reflec- cess, he said, has followed an “inside-out- to the Chinese authorities that they used to tions on Jewish Messianism” illuminated side” strategy, meaning that the center has prosecute Chinese journalist Shi Tao. He was the reasons—some of them political—for worked with people both inside and outside sentenced to 10 years in prison for leaking the seeming contradiction between the the Chinese government. “We couldn’t be as government secrets because he forwarded construction of a messiah and an unwill- effective as we think we are without the pres- an email his newspaper had received from ingness to accept his existence. sure of outside human rights groups, and I the government to a U.S. human rights

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Stoking a Desire to Kick Our Fossil Fuel Habit t a town hall meeting on October 20, Friedman recently wrote about how Lovins 2005, a bipartisan panel discussion, helped Texas Instruments successfully A “Winning the Oil Endgame for a More design a completely green semiconductor Secure and Profitable America,” analyzed wafer plant in Dallas in 2004, lowering our nation’s oil addiction from the financial, overall utility costs and energy usage while environmental and security angles. The keeping manufacturing jobs in Texas. “Oil experts who gathered included: Missis is a great industry, but it’s bad for business,” sippi Governor Haley Barbour; the Lovins proclaimed, hoisting a prototype of Earth Institute’s Jeffrey Sachs, who a car’s front panel, made from a lightweight most recently published The carbon fiber composite, over his head. By Jeffrey Sachs End of Poverty; former Deputy manufacturing automobiles made from this Secretary of the Treasury Roger safe and durable material, a car’s overall Altman; Amory Lovins, CEO of weight is reduced and mileage is increased the Rocky Mountain Institute, a exponentially. Why not do this? he asked. nonprofit think tank that promotes effi- The future of our national security, cient uses of natural resources in entrepre- Woolsey said, rests in shifting American neurship; Charles Fox, Deputy Secretary dependency on oil from the Middle East to the Governor of New York for Clean to other, more stable regions. Innovations Energy Policy; and former CIA Director such as developing alternate fuel sources James Woolsey. The event was organized and improving hybrid and electric auto- by investment banking firm Fir Tree motive technology, as well as the possi- Partners President Jeffrey Tannenbaum ’88 bility of hydrogen fuel cell usage, are also and Ilmi Granoff ’07, a staff editor of the steps toward kicking our oil habit. “If the Environmental Law Journal, and moder- Wahhabis in Saudi Arabia are unhappy ated by Dean Richard Revesz. about our progress on this front,” Woolsey At the time, the aftermath of Hurricane remarked, “then we should be happy.” ■ Haley Barbour Katrina was front-page news, and Sachs used that storm, and the havoc it wreaked, as evidence of the cumulative environmental effects of carbon emissions, emphasizing Stepping Up to Honor Redlich that global warming has much to do with Dean Richard Revesz dedicated the elegant yering and law and philosophy programs. the conditions that create such vicious hur- staircase of the Law Library in honor of for- Redlich, who began his career at the Law ricanes. Sachs has long pushed for cleaner- mer Dean Norman Redlich (LL.M. ’55) last School in 1960 as an associate professor, October in a ceremony at Vanderbilt Hall. also pursued an ambitious building program, burning fuels as an alternative to oil, and he Revesz noted that during Redlich’s tenure as including the construction of the Mercer espoused the benefits of the Fischer-Trope dean, from 1975 to 1988, he oversaw many Street Residence and D’Agostino Hall and method in which gasification changes coal upgrades to the Law School’s curriculum: a new wing for the Law Library—achieved into diesel fuel. China, he said, has already He worked to diversify the student body; by tunneling under Sullivan Street. Revesz increased the Law School’s involvement in joked that if the already-sizable honorary employed this process with great success to public interest law; improved the caliber of plaque were to list all of Redlich’s accom- meet its skyrocketing energy needs. the clinical education program; and started plishments, “it would have been too large to Mississippi’s Gulf Coast, especially its oil interdisciplinary initiatives such as the law- fit anywhere in the library.” industry, was also hit hard during the 2005 hurricane season, and Barbour acknowledged the responsibility of all state governments to start developing cost-competitive and eco-friendly alternative fuel sources right away. Fox, who has primarily dealt with local energy reform, agreed. He said that states should be the laboratories of democracy, determining which energy and environmental policies will encourage the development of new energy sources. “The talking has to stop,” said Fox. “It’s time to do something and take a chance.” Perhaps the most radical ideas came from Lovins, who has frequently worked with giants such as Wal-Mart to increase profit through sustainable and environ- mentally friendly corporate initiatives. The New York Times columnist Thomas L.

110 THE LAW SCHOOL AUTUMN 2006 Why the Innocent Confess Criminal Minds n the spring of 1989, five young men con- claims to turn detectives into The Hoffinger Colloquium invites scholars, fessed to the brutal rape and beating of a “human lie detectors.” The tech lawyers, judges and journalists to discuss I 28-year-old woman who would become nique is intended to prevent interrogators current trends and issues in criminal jus- known to the horrified public as simply the from questioning and charging innocent tice. In addition to Saul Kassin, the 2005- Central Park Jogger. people through a three-step method. The 06 series featured:

In videotaped confessions, taken after first step—looking for visual clues of guilt “Is Prostitution Still a Crime?” hours of interrogation by NYPD detectives such as averting a gaze, slouching or sitting Elizabeth Bernstein, Assistant Professor and trips to the crime scene, four of the five rigidly—“is the pivotal point in the life of a of Sociology, Barnard College, suspects looked into the camera’s lens and case,” Kassin says, because if an interrogator Columbia University

gave accounts of how they attacked the jog- is not persuaded of a suspect’s innocence, “The End of Labor Racketeering ger—one of the men even demonstrated he then becomes predisposed toward the As We Knew It?” James B. Jacobs, how he physically overpowered her. goal of eliciting a confession. Chief Justice Warren E. Burger Professor Thirteen years later, however, a positive Kassin’s research proves that the Reid of Constitutional Law and the Courts, DNA match and a true confession by an Technique is only 55 percent effective. Rath New York University incarcerated serial rapist revealed that the er than removing innocent suspects, it is “a “Eye for an Eye: Blood and Money” youths hadn’t committed the crime. steamroller that treats the guilty and the William Ian Miller, Thomas G. Long Why had they confessed? innocent the same.” Professor of Law, University of Michigan

Saul Kassin, a professor of psychology Equally troubling to Kassin are the “Criminology as a Vocation: Ethics, and the founder of legal studies at Williams actual questioning methods. Interrogators Responsibility, Ultimate Ends” College, has exhaustively studied the Cen are allowed to present false evidence, keep Robert Reiner, Professor of tral Park Jogger case, and others in which suspects isolated and imply minimization Criminology in the Law Department, confessions proved to be false, and has of sentencing in order to draw out a confes- London School of Economics even staged crimes and interrogations to sion. “You see false confessions being given “The Political Constitution of investigate the phenomenon. He shared in the bowels of a police station,” he says. Criminal Justice” William Stuntz, what he has learned in a provocative lecture, “They want to get out of there and denial is Professor of Law, Harvard University

“Inside Interrogation: Why Innocent People not the way that’s going to happen.” “Harsh Justice: Criminal Punishment Confess and What to Do About It,” as part of Finally, Kassin blames the presentation and the Widening Divide Between the 2005-06 Hoffinger Colloquium. of evidence at trial. Even though the Central America and Europe” James Whitman, The answer, said Kassin, is complex and Park Jogger suspects were questioned for Ford Foundation Professor of Compara- can be traced to flaws in the way that detec- nearly 30 hours each, the juries viewed tive and Foreign Law, Yale University tives evaluate and interrogate suspects, only 20 minutes of videotaped confessions. guilty or innocent, in criminal investigations. If juries were privy to the entire interroga- “The detectives knew that the DNA didn’t tion, and not simply the stated confession, behavior is taught as well as sniffing out match,” said Kassin, referring to the Central says Kassin, they might be able to see how guilt, plus videotaping full interrogations, Park Jogger case. “The only evidence against an innocent person can falsely confess—or says Kassin, are necessary to safeguard them was their confessions.” even believe through suggestion that he or against false confessions. In parting, Kassin Investigators, Kassin explained, extract she committed the crime. gave some unsolicited advice: He recom- confessions through a system of interroga- New methods of suspect evaluation, mended that all suspects, innocent or guilty, tion rules called the Reid Technique, which including those where detecting innocent never waive their right to an attorney. ■

Judges Tackle Tough Issues in Labor and Employment Law n the area of labor and employment law, private law reform organization, described presented a draft on employment contracts state judges routinely encounter work- how the institute initiates projects, called to the distinguished crowd, welcoming their I place privacy, whistleblowers, indepen “restatements,” to clarify or recommend opinions. He examined at-will employment, dent contractors, torts and state class ac changes in the law. The ALI is coordinat- bilateral agreements, unilateral employer tions. Last November, these were also the ing restatements, which can take up to 10 statements, termination for “cause,” and topics of the two-day Employment Law years to complete, in family, state sentenc- duties of good faith and fair dealing. Workshop for State Judges sponsored by the ing, nonprofit and software licensing law, Liebman, who like Estreicher teaches Dwight D. Opperman Institute of Judicial Liebman said. Several years ago Dwight employment law, commented that the judi Administration and the Center for Labor D. Opperman Professor of Law Samuel ciary’s decisions in these cases are instru- and Employment Law. Professor Lance Estreicher approached Liebman about the mental in his classes. In fact, Liebman said Liebman of Columbia University School of need for an ALI project, the first of its kind, he had discussed with his students that Law, the keynote speaker, stressed the state to restate employment law. morning a Ninth Circuit decision involving judiciary’s key role in the field. “Our goal,” said Estreicher, named one a Reno casino that fired a 20-year employee “Employment law is an area, quite inter- of four lead drafters of the undertaking, “is who refused to abide by a new “image trans- estingly, left to state common law,” Liebman to identify and harmonize the rules that formation” program requiring women to said, so it’s up to the state judges to move judges should be guided by in dealing with wear makeup. the law forward. Leibman, who is the direc- the range of issues involving employment Liebman added, “We love it when you tor of the American Law Institute (ALI), a that is not governed by statutes. Estreicher write teachable cases.” ■

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Meron Gives Keynote for Hauser Dinner he Hauser Global Law School Program kicked off its 11th annual dinner by T announcing that the Law School had signed an agreement with the National University of Singapore Faculty of Law to offer a new dual graduate degree program in Singapore. The goal, said Dean Richard Revesz, is to reach talented law students in the Asian-Pacific region who may be unable to afford to study in New York. Revesz also saluted the Hauser program, saying that it has “truly transformed the nature of legal education in the United States.” He added: “The real sign of success

is that every one of our peer law schools has Oregon’s Governor Theodore Kulongoski, center, stands with former New York State Attorney General tried to emulate us.” Robert Abrams, left, and Dean Richard Revesz after the Abrams Public Interest Forum. In his keynote speech, “Anatomy of an International Criminal Tribunal,” Charles L. Denison Professor of Law Emeritus Theodor Oregon’s Governor Fights Meron, former president of the International Criminal Tribunal for the Former Yugoslavia, to Defend Legal Aid outlined the thorny challenges faced by the tribunal. One question they have to answer, ith his election in 2002, Theodore the Legal Services Corporation (LSC)—a he said, is whether it is a violation of defen- Kulongoski became the first gover- private, nonprofit group established by dants’ rights to try them for acts that weren’t W nor in Oregon’s history to serve in Congress in 1974 to provide grants to local codified as crimes when they occurred. all three branches of state government. He legal aid programs around the country— Meron said the answer is yes, if those acts had been a state representative and sena- has been cut drastically. In 2006, Oregon’s were illegal under “customary law” in 1992, tor, attorney general and associate justice of budget for these local organizations was even if not criminalized under the country’s the Oregon Supreme Court. One more way reduced by $3.5 million. then-existing penal code. in which he has distinguished his current In the same vein, the Brennan Center The war crimes tribunals at The Hague office is by acting to reverse the erosion of for Justice at NYU scored two victories in have helped provide a measure of justice to free legal services to the nation’s poor. New York with Legal Services Corporation civilians harmed in Rwanda and the former Governor Kulongoski was the speaker at v. Velazquez and Dobbins v. Legal Services Yugoslavia. The trials “have not been perfect, the Ninth Annual Attorney General Robert Corporation, in 2001 and 2004, respectively, but have been a remarkably effective exper- Abrams Public Interest Forum last January. and LSC has since been barred from with- iment,” said Meron. The tribunals, he said, “It is possible to achieve high public office holding federal funds to legal aid programs have “given the victims of horrific crimes a without abandoning the noble things,” said on the basis of certain restrictions. chance to tell their story.” former New York State Attorney General “Oregon is now picking up the baton on Despite the dark subject matter of Robert Abrams ’63 during his introduction. the federal level,” said Kulongoski, who sup- Meron’s speech, the overall mood that eve- The governor’s lecture, “The Guardians ports the claim that the financial restrictions ning was buoyant. Inosi Nyatta (LL.M. ’00), of Democracy: Public Service and the Rule imposed by the government are unconsti- an associate at Sullivan & Cromwell, said of Law,” was an endorsement of the impor- tutional under the 10th Amendment, which the program opened possibilities to her that tance of public interest legal work in the grants powers not given to the federal gov- she wouldn’t have had in her native Kenya. lives of elected officials, public defenders ernment in the constitution to the states. “Our lives were changed,” she said, “by com- and private practitioners, as well as a call to “Private lawyers can stand guard over the ing to NYU and experiencing this.”■ action for the law students in attendance to guardians,” said Kulongoski, emphasizing remember the indigent who lack adequate the role of the pro bono lawyer in the land- financial resources to fight injustices. scape of the American legal system. “Legal “I believe in the law—in its majesty and aid was saved by lawyers and academics its power to right wrongs,” Kulongoski said, who came through for poor people.” echoing Abrams’s belief that achieving The governor ended his stirring and im career success in public service without sac- passioned lecture with a quotation by John rificing one’s integrity is not only possible, Wesley, founder of the Methodist Church, but should be the standard kept by every who wrote: “Do all the good you can/By all person entering politics. Over the past few the means you can/In all the ways you can/ years, since Kulongoski has been in office, In all the places you can/At all the times you he’s watched as funding for Oregon’s legal can/To all the people you can/As long as Alumna Rita Hauser with Professor Theodor Meron services organizations, delivered through ever you can.” ■

112 THE LAW SCHOOL AUTUMN 2006 Leading Lights A Preview to a Battle Lost hree months before arguing FAIR v. The Abrams and Weiss lectures were Rumsfeld before the Supreme Court part of the 2005-06 Leaders in Public last December, E. Joshua Rosenkranz, Interest Series. In addition to Kulongoski T and Rosenkranz, other topics and a partner at Heller Ehrman and founding speakers included: president of the Brennan Center for Justice, gave a preview of his case at the 2005 “Lawyers at the Forefront of Change Melvyn and Barbara Weiss Public Interest in New York City Government” Carol A. Robles-Román ’89, Deputy Mayor for Forum. FAIR, the Forum for Academic Legal Affairs and Counsel to New York and Institutional Rights, is a collective of City Mayor Michael R. Bloomberg. law schools—including the NYU School of Law—and professors who sued Secretary “Confronting Injustice” Professor Rosenkranz with Assistant Dean Irene Dorzback Bryan Stevenson, Executive Director, of Defense Donald Rumsfeld, seeking to Equal Justice Initiative of Alabama. prevent the enforcement of the Solomon Amendment, which requires schools receiv- a law school’s right to associate, regardless “The Passion of My Times: ing federal funding to give access to military of how repugnant the law school considers An Advocate’s Fifty-Year Journey recruiters. At issue: the military’s “don’t ask, the recruiter’s message.” Through the Civil Rights Movement” William L. Taylor, Chair, Citizen’s don’t tell” policy violates the schools’ anti- In response, a spokesperson for NYU Commission on Civil Rights. discrimination policy. said, “Military recruiters...will continue to On March 6, the Supreme Court upheld have access going forward.... Our nation’s “The Fight for Universal Health Care” the Solomon Amendment. Chief Justice universities are not anti-military, they are Ronald F. Pollack ’68, Vice President & Executive Director, Families USA. John Roberts Jr. wrote, “A military recruiter’s anti-discrimination. Regrettably...this im mere presence on campus does not violate portant distinction is lost.” ■ “Domestic Violence & Legal Remedies: Where Are We Going?” Mary Haviland ’94, Founder and Co-Executive Director, CONNECT. Seeking Talented Students & Alumni? “Changing Regional Structures of Inequality: Civil Rights Work for the Next Generation” Michael A. Sarbanes If your organization has hiring needs for part-time interns, summer ’92, Executive Director, Citizens Planning and Housing Association. associates, or full-time employees at any level, zero in on the top talent at New York University School of Law. “Changing the World One Person at a Time: Providing Direct Legal Services to Immigrants” Wanyong Austin ’83, The Office of Career Services will post a job for students or alumni Managing Attorney, Immigration Legal Services Program, Lutheran Family and free of charge. Your listing will be emailed exclusively to NYU alumni, Community Services. or students, as appropriate. Please email your complete job description “Refugee Protection in a Post-9/11 World” Andrew Painter ’96, Senior to [email protected]. If you have questions in this regard, please Protection Officer, United Nations High Commissioner for Refugees. call our main number at (212) 998-6090.

“Beyond Lawyering: A Holistic Vision NYU School of Law is committed to a policy against discrimination in employment based on race, color, religion, national origin, age, handicap, sex, of Public Defense” Robin Steinberg ’82, marital or parental status, or sexual orientation. The facilities and services of NYU are available only to those employers who agree to abide by this policy. Founder and Executive Director, Bronx Defenders.

“Reviving the Vision of the Founders: Changing the World Through Public Interest Litigation” William H. Mellor, President and General Counsel, Institute for Justice.

“Scholarship in the Public Interest” Professors Randy Hertz and Deborah Malamud, and Kirsten D. Levingston, program director, Brennan Center Criminal Justice Program.

“In the Pink Room: The Story of a Gross Miscarriage of Justice and How One Lawyer Got to the Bottom of It” Professor Steven Gillers ’68 and Joel Rudin ’78, The Law Offices of Joel B. Rudin.

AUTUMN 2006 THE LAW SCHOOL 113 Alumni Almanac

A BANNER YEAR: “We are the Law School of opportunity, leadership and community,” said Dean Richard Revesz to guests at the September 2005 Weinfeld Gala. The black-tie affair was the the official launch of the most ambitious capital campaign ever undertaken by the New York University School of Law; no other law school has attempted to raise more. The founder of the progressive AnBryce Alumni Inaugurate Ambitious Scholarship and the campaign’s chair, Trustee Anthony Welters ’77, spoke about New Capital Campaign the sense of pride and elation that accompa- nies supporting education. “There is noth- ore than 300 alumni and guests of the ute to the greater good. Campaign funds will ing more fulfilling than touching someone’s NYU School of Law went to the New also be used to hire new faculty, increase the life,” Welters said as he introduced a film M York Public Library last September number of chaired professorships and sup- that conveyed how NYU impacts the lives of to cheer the launch of an audacious $400 port the work of the Law School’s faculty-run those who study and work here, and so many million capital campaign, the largest in centers and institutes. Finally, the campaign others who are part of the Law School com- the school’s history. Lights swept the skies aims to increase alumni participation and to munity. Sudler and Raisler took the stage at as alumni, faculty and friends strolled up double the size of annual cash gifts. the end of the evening to give the assembled the library’s red-carpeted grand stairway. Walking past the building’s majestic col- umns, which were bathed, for the evening, in violet light, guests stepped into the Astor Hall for cocktails and hors d’oeuvres where one-story-tall banners proclaimed the campaign’s central values: opportunity, community and leadership. “We wowed them on Fifth Avenue tonight,” said Eileen FitzGerald Sudler ’74, chair of the Dean’s Strategic Council and member of the Campaign Steering Com- mittee, as she and committee comember Kenneth Raisler ’76 introduced the specif- ics of the campaign. Marking the end of the campaign’s silent fund-raising phase, during which some $165 million was raised, the gala ushered in the public phase by identifying the Law School’s plans for expand- CLASS ACT: The stately New York Public Library, the site of the campaign’s launch, aglow in violet light. ing student aid and supporting numerous faculty projects. The money raised—more “In a remarkably short span of time, NYU alumni something they hadn’t had in some than $200 million by last spring—will fund School of Law has moved into the small time—a homework assignment. Their task: scholarships for both J.D. and LL.M. candi- handful of schools at the very top tier of legal to reconnect with an old classmate and tell dates, and help endow the school’s distinc- education,” said Dean Richard Revesz. “We that graduate about all that is happening at tive Loan Repayment Assistance Program have achieved this great success by pursu- their alma mater. If those personal ties are and summer public interest grants, allowing ing a distinctive path in legal education. The reestablished, promised Raisler, opportu- students to explore and then pursue highly campaign will ensure that we continue on nity, community and leadership will con- competitive yet low-paying jobs that contrib- this steep trajectory.” tinue to thrive on Washington Square. ■

Center for Law & Business Dedicated to Lester Pollack ’57

To honor Lester Pollack for more than 25 years on the Law School’s board of trustees, the last eight as chairman, the NYU Center for Law & Business was renamed the NYU Lester Pollack Center for Law & Busi- ness. Pollack ’57 (pictured with his wife, Geri), who has also been a member of the University’s board since 1987, said, “This evening celebrates my ambitions to give back to the school that gave so much to me.” He thanked Dean Thomas Cooley of the Stern School of Business and Dean Richard Revesz for bringing their two schools together to promote this interdisciplinary study. The evening’s keynote speaker was former Federal Reserve Board Chairman Paul Volcker, whom center director and Nusbaum Professor of Law and Business William Allen lauded for “the fortitude and moral leadership” necessary to eliminate double-digit inflation during the ’80s.

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BLAPA Honors Dutt, López and Welters his year’s Black, Latino, Asian Pacific American Law Alumni Association T (BLAPA) Spring Dinner celebrated the accomplishments of Mallika Dutt ’89, Pro- fessor of Clinical Law Gerald López and Law School Trustee Anthony Welters ’77, who were each honored for their work on behalf of diverse communities. As the founder and executive director of Breakthrough, Dutt uses technology and pop culture to promote human rights, par-

ticularly among young people, in the U.S. From left, Mallika Dutt, Professor Gerald López and Anthony Welters were each recognized for having devoted and India. Case-in-point: Breakthrough’s themselves professionally and personally to giving back to their communities. blunt, even confrontational current ad campaign, “What kind of man are you?” informs for Community Problem Solving, which in Jersey and Pennsylvania. A trustee of the Indians that married women are becom- 2005 released a groundbreaking study on the Law School, Welters and his wife Beatrice ing infected with HIV by their husbands at health and welfare of Mexican immigrants. created the AnBryce Scholarship, which alarming rates. Dutt is also the author of The center aims to help solve the social, eco- provides full tuition to J.D. students who With Liberty and Justice for All: Women’s nomic and legal problems that low-income are the first in their families to attend gradu- Human Rights in the United States (Center and immigrant communities face. ate school. for Women’s Global Leadership, 1994). Welters began his distinguished career This year, BLAPA awarded four new López has pioneered the idea of the as a staff attorney at the Securities and $1,000 clinical law and public interest grad- progressive practice of law. He teaches Exchange Commission and eventually rose uation prizes to students Jennifer Turner ’06, the Community Economic Development to become president and CEO of Ameri Susan Shin ’06, Cyrus Dugger ’06 and Andre and Community Outreach, Education and Choice Corporation, a leading provider of Segura ’06, as well as a $10,000 public inter- Organizing clinics and founded the Center public sector health care in New York, New est scholarship to Alexis Hoag ’08. ■ No Time for Idle Chitchat at Mentoring Event he First Annual Evening of 8 Minute Mentoring, sponsored by the Black, T Latino, Asian Pacific American Law Alumni Association (BLAPA), took its cue from the speed-dating trend, giving each participating student a chance to sit down at a café table with an interested alumnus and make a connection. When time was up, a bell rang and the student moved on to meet with another mentor. The innovative event brought together alumni from all corners of the legal world, including corporate attorneys, judges, invest ment bankers and public interest lawyers. Among them: retired judge Betty Staton ’79; legal diversity consultant Katherine Frink- Hamlett ’91, president of Frink-Hamlett Legal Solutions; and Barry Cozier ’75, a former associate justice of the New York State Supreme Court Appellate Division and now a member of Epstein, Becker & Green. BLAPA organizers added a second FAST TALKING: Willkie Farr & Gallagher Associate Leslie Spencer ’98 shares career wisdom and life experience. all-alumni session for legal professionals to make industry connections. dent and corporate secretary at the Federal be patient, get involved with local politics The approach, a departure from last Reserve Bank of New York. and try to develop what she termed a “judi- year, when students were assigned mentors, Many students, like Zhiping Liu ’07, were cial temperament” by learning from difficult “transformed our traditional fall reception interested in hearing about following a cases. “Experience makes for deciphering into an exciting mentoring experience that career path toward becoming a judge, and the gray areas,” said Sosa-Lintner. benefited both the alumni and student par- seized the opportunity to sit with Judge In Greenberg Lounge that evening, how- ticipants,” said Michelle Meertens ’98, presi- Gloria Sosa-Lintner ’75 of New York County ever, it was as simple as black and white that dent of BLAPA and an assistant vice presi- Family Court. Sosa-Lintner advised Liu to eight minute mentoring was a success. ■

116 THE LAW SCHOOL AUTUMN 2006 15 years, the EJI has succeeded in obtain- Bryan Stevenson Takes the ing relief in the form of new trials, reduced sentences or exoneration for more than 70 Measure of Our Society; Betty death row prisoners. He ascribed his deep faith in the power Weinberg Ellerin Is Honored of words to his grandmother, as he related in a story. Stevenson’s grandmother, who eneath the chandeliers of the Grand Award from New York University, he was was born of slaves and was “absolutely the Ballroom of the Pierre Hotel on Fifth introduced by Dean Richard Revesz as “a dominant force in our family,” once took him B Avenue, this year’s Alumni Luncheon modern-day hero” in a “society that doesn’t aside and said: “I think you’re special, I think paid tribute to two veterans of the fight for have many heroes.” Stevenson seemed you can do anything you want to do.” These civil rights: one who sits on the bench, and eager to shift the attention away from him- words, he said, have stayed with him and the other who has spent a great deal of time self. He got straight to the point. encouraged him to do his best. In contrast, arguing before it. “As a society committed to law we are Stevenson said, we as a society discourage Before inviting the Honorable Betty required to say things that are sometimes the poor and disenfranchised. Weinberg Ellerin ’52, the first woman to difficult to hear,” he said. “I believe we have Case in point: Last February, an Alabama be appointed to the Appellate Division of to judge the civility of society, the commit- Supreme Court Justice called for his col- the Supreme Court of New York, up to the ment of our society to the law, by how it leagues on the bench to “actively resist” the podium to accept the Robert B. McKay treats the poor.” U.S. Supreme Court’s March 2005 decision

Bryan Stevenson has won a MacArthur Foundation “Genius Award,” the ACLU’s Betty Weinberg Ellerin, here with Thomas Newman ’60, also has won the 2005 National Medal of Liberty and the American Bar Association’s Wisdom Award. Award for Conspicuous Service from the New York County Lawyers’ Association.

Award, New York’s Chief Judge Judith Kaye Stevenson then went on to state the pow- in Roper v. Simmons, in which the Court ’62 introduced her as “a sister of the judi- erfully disturbing facts: Sixty-one percent of struck down the death penalty for juveniles, ciary” who “has been in the forefront of the inmates on death row in Alabama did not said Stevenson. It is imperative, he stressed, fight for justice for women, indeed against have a single witness called in their defense. that we fight for the rule of law not just “for injustice of any kind.” Seventy percent were represented by attor- the favored, not just for the empowered, but Matching the elegance of the grand set- neys who, by statute, could be paid only for everyone.” ting, Ellerin gave a simple and brief accep- $1,000 for any work they did outside of court Stevenson wrapped up with a story about tance speech. She invoked an English jurist, to build their client’s case. Thirty-one per- a black janitor he met in a courthouse in who, when told by a defendant, “My Lord cent of black men in Alabama have lost the Alabama. The older man had come up to sit as my judge and witness, I am innocent,” right to vote as a result of felon disenfran- behind Stevenson in the courtroom, when a responded with the terse reply: “He isn’t, I chisement legislation. In 1972, there were sheriff stepped over to shoo him away. “What am, you’re not.” With barely more volubil- 200,000 people incarcerated in America’s are you doing here?” the sheriff asked. The ity, she said, “[I am] inspired to redouble my prisons; today there are 2.3 million. janitor looked at the sheriff and said: “I came efforts to be worthy of this award.” “I genuinely believe we live in a system into this courtroom to tell this young man: The keynote speech was delivered by that treats you much better if you are rich Keep your eyes on the prize, hold on.” ■ Professor of Clinical Law Bryan Stevenson, and guilty than poor and innocent,” he said. who has defended death row prisoners in “It becomes necessary to say something.” Also at the luncheon, the Law Alumni the South for more than 20 years. As the In his work with the Equal Justice Association recognized Paul Kurland ’70 for recipient of numerous awards, including the Initiative of Alabama (EJI), the organization his dedicated service during his two-year term 1989 Reebok Human Rights Award, the 1991 that he founded and directs, Stevenson has as board president, and elected Lawrence ACLU National Medal of Liberty, as well as been saying something—again and again— Mandelker ’68 as the new board president. the first Martin Luther King Jr. Humanitarian in courts across the South. During the past

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Alumni Applause Landmark Rights Protected... Arguing before the Supreme Court, a lawyer just Laurence Pathy ’60 was made a member of the Order of Canada, the Canadian 10 years out of school stands up for girls’ health government’s highest honor for lifetime achievement, on November 17, 2005.

Marc Cohen ’74 was named Bankruptcy Lawyer of the Year by the Century City Bar Association on March 15, 2006. Cohen is chair of the Business Reorga- nization and Creditors’ Rights Group in Kaye Scholer’s Los Angeles office. Rolfe G. Judy Photo:

Wayne Positan ’74, managing director of the Roseland, New Jersey law firm of Lum, Danzis, Drasco & Positan, was elect ed president of the New Jersey State Bar Association. He took office in May 2006.

Scott Fein (LL.M. ’81) and his firm, Whiteman Osterman & Hanna, received the National Law Journal’s Annual Pro Bono Award and the New York State Bar Association President’s Pro Bono Award Jennifer Dalven, center, standing in front of the U.S. Supreme Court shortly after arguing an intensely watched for their work on Brown v. State, a civil abortion case during a time of unprecedented transition on the bench. rights case that involved widespread racial profiling by state police in Oneonta, New York. o call Jennifer Dalven’s first argument court in New Hampshire to determine before the Supreme Court a challenge whether the law should be fixed to include Marc Platt ’82 won a Golden Globe on would be an understatement. It was the medical emergency exception. January 16, 2006, as the producer of the T HBO miniseries Empire Falls, based on November 2005 and the stakes were high— “The case raised other issues [like what the novel by Richard Russo. she was representing Planned Parenthood legal test must courts use to decide whether in the Court’s first abortion case in six years, to strike down an abortion law that might Phoebe S. Eng ’89 was appointed to the just at a time when the Court was undergo- harm women], but they dodged those by board of directors of the Ms. Foundation for Women. Eng is the creative direc- ing some key changes. Chief Justice William writing a very narrow opinion, and that help tor of The Opportunity Agenda, a New Rehnquist had died and been succeeded by ed them achieve consensus,” said Dalven. York City–based think tank that works to John Roberts Jr.; a swing vote on many abor- As the New York Times’s legal reporter increase opportunity and bolster human tion cases, Justice Sandra Day O’Connor had Linda Greenhouse wrote after the hearing, rights in the United States. announced her retirement over the summer; “Abortion law was not about to undergo Russell Gewirtz (LL.M. ’92) wrote the and Harriet Miers, President Bush’s choice a major change in the hands of the new screenplay for Spike Lee’s recent movie for that seat, had just withdrawn her nomi- Roberts court, at least not yet.” Inside Man, released in March 2006. nation. What’s more, Justice Samuel Alito Dalven, who worked as a peer educator at had been nominated, but not yet confirmed, a family planning clinic back when she was in Daniel Nissanoff ’92 is the author of FutureShop (Penguin, 2006), in which he so even on the day she argued, Dalven high school, has had a long-standing interest explores the “new auction culture” and could not be sure that Justice O’Connor in reproductive rights. After law school she the phenomenon of temporary owner- would remain on the Court to decide the clerked for Judge Pierre Leval in the Second ship. The Wall Street Journal named it case. “The Court became an ever-changing Circuit and then in 1997, after just one year at one of the five best consumer culture landscape,” says Dalven ’95 of the months Paul, Weiss, Rifkind & Garrison, she joined books ever written. leading up to the argument. “We had to pre- the ACLU Reproductive Freedom Project. Heather Howard ’97 was appointed pol- pare for a case when we didn’t know who “One of the advantages of working for a icy counsel for Governor Jon Corzine of the members of the Court would be. We just public interest institution is that they let law- New Jersey in December 2005. Howard put forth the arguments we thought were yers have such fabulous experiences,” said previously served as Corzine’s Senate chief of staff. most persuasive.” Indeed, in the end, Ayotte Dalven. “I’d only been out of law school for v. Planned Parenthood of Northern New 10 years and they had no qualms about let- Bridget A. Brennan Voci ’97, a member England turned out to be Justice O’Connor’s ting me argue in front of the Supreme Court. of Semanoff, Ormsby, Greenberg & Tor- last opinion before retirement. They said, ‘It’s your case, you get to argue it.’” chia in Jenkintown, Pennsylvania, was In January, the Supreme Court reached As grateful as she is for the favorable named a 2005 Pennsylvania “Rising Star” by Law & Politics magazine. a unanimous decision in favor of Planned ruling, Dalven said, “I am concerned that Parenthood. It found that a 2003 New this ruling will embolden legislators to pass Alina Das ’05 was named an Open Soci- Hampshire law, which prevents doctors unconstitutional laws that are dangerous to ety Institute Soros Justice Fellow. Das will from performing an abortion on a teenager women, and force more and more women work at the New York State Defenders Association to create reentry and reinte- until 48 hours after a parent has been noti- to go to court with their doctors to pro- gration strategies for immigrants in the fied, cannot be upheld because it does not tect their rights and get the care they need. criminal justice system. allow an exception for medical emergencies. Striking down the entire law would have Instead of striking down the law, however, been the right thing and I’m hoping this will the justices sent the case back to the lower still be the outcome.” ■

118 THE LAW SCHOOL AUTUMN 2006 predominantly Catholic and conservative ...And New Rights Created country. In May 2005, one month after Roa Counselor convinces the highest court in filed, 85 percent of Colombians were against abortion in all circumstances. By the time Colombia that abortion is a human rights issue the decision came out, more than 60 percent supported the partial liberalization of abor- n a landmark 5-3 decision last May, the tion. For the first time, Colombians were Constitutional Court of Colombia ended talking about abortion as a human rights I the country’s complete ban on abortion. issue, and a matter of gender equality, social Mónica Roa (LL.M. ’03) successfully argued justice and public health. “Priests used to be that the total criminalization of abortion the main sources [for quotes in the media],” violated Colombia’s obligations to interna- says Roa. But now “doctors, feminists, law- tional human rights treaties that guarantee yers and human rights activists” are sought a woman’s right to life, health, dignity and for their opinions on abortion. equality. The law now includes exceptions Roa believes that there will eventually if the mother’s life or health are at risk, if the be broader liberalization of abortion in fetus is severely malformed, or if the preg- Colombia. “I don’t know how long it will nancy is a result of rape or incest. take and what the debate in Congress will “I am Colombian and I wanted to do some Roa opened the door to abortion rights in Colombia. be, but I am very clear that the cause is not thing about the issue,” says Roa, a Bogotá over and that society is better prepared to native. She sued on behalf of Women’s Link health, children and women’s participation face that kind of debate now.” Worldwide, a clearinghouse that seeks to in politics. “I argued that the Court should If anyone understands the challenges— help women’s rights advocates around the be consistent and also recognize the legal and dangers—of trying to bring about world develop effective legal strategies. Roa status of these international human rights change in a resistant society, it is Roa, who currently serves as the program director arguments when deciding the issue of abor- was assigned bodyguards by the government of the organization, which has offices in tion,” says Roa. after receiving threats. “Every time I go out Bogotá and Madrid. Before this ruling, an average of 400,000 and see the light of recognition in someone’s While several bills to liberalize Colom- Colombian women each year risked their eyes, I think, ‘This person is either going to bia’s abortion law had failed over the past health and lives to seek illegal abortions. insult me or thank me.’” ■ 30 years, Roa believed she had a good shot The government estimated that unsafe abor of winning when she filed suit in April 2005. tions were the third leading cause of mater- The Constitutional Court had recently recog- nal mortality. nized the legal value of international human Even more surprising than the legal rights arguments and used them to solve victory, however, was the impact this high- A little constitutional challenges in cases related to profile case had on public opinion in this goes a Guests of the Roundtable

The Dean’s Roundtable Luncheons are inti- Laurence Heilbronn (LL.M. ’82) mate gatherings where alumni can discuss Treasurer, St. Bernard’s School long way their career paths with a dozen or so students. Dean Richard Revesz’s guests during Robert A. Kindler ’80 the 2005-06 academic year included: Vice Chairman of Investment Banking, Morgan Stanley Paul Appelbaum ’98 Cofounder and former President, Charles Mele ’81 SeamlessWeb EVP, General Counsel and Secretary, Emdeon Todd Arky ’98 Executive Vice President, SeamlessWeb Rachel Robbins ’76 Former General Counsel, Gary Claar ’91 Citigroup International Managing Director, JANA Partners Marshall Rose ’61 Ulrika Ekman ’90 Chairman and CEO, The Georgetown Group Managing Director and General Counsel, Greenhill & Co. Michael I. Roth (LL.M. ’75) Make a gift to the Chairman and CEO, The Interpublic Group Frank Fernandez (LL.M. ’84) EVP, Secretary and General Counsel, James A. Shpall ’82 annual fund The Home Depot President, Applejack Wine & Spirits (212) 998-6061 Victor Ganzi (LL.M. ’81) Judah Sommer ’70 President and CEO, The Hearst Corporation Managing Director, Goldman Sachs www.law.nyu.edu/ Charles Heilbronn (LL.M. ’80) William Toppeta ’73 (LL.M. ’77) Executive Vice President, Chanel President, International, MetLife wherewestand

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Debating a (Tax) Law of Unintended Consequences aking amendments to already compli- sionals immediately criticized them, arguing cated tax rules is always a tricky busi- that the stringent requirements for giving M ness; the possibility of creating unin- written advice prevented lawyers from advis- tended problems looms large. That’s exactly ing clients properly and that the regulations what happened in June 2005, when the are extraordinarily complex, necessitating Internal Revenue Service implemented revi- costly training for tax practitioners. Desmond sions to Circular 230, said Michael Desmond, and the other speakers—Professor Deborah tax legislative counsel at the U.S. Department Schenk (LL.M. ’76), KPMG partners Frank of the Treasury, in the sixth annual lecture on Lavadera (LL.M. ’89) and Lawrence Pollack Current Issues in Taxation sponsored by the (LL.M. ’88), and Kostelanetz & Fink partner NYU School of Law Graduate Tax Program Bryan C. Skarlatos (LL.M. ’91)—explored and the Tax Practice of KPMG. how Circular 230 might impede lawyers The revisions to Circular 230 were from doing their jobs. They noted that strict Mary C. Bennett, senior official at the Organisation intended to combat fraudulent tax shelters, regulation on written advice left some tax for Economic Co-operation and Development. but spawned controversy instead. Tax profes- professionals feeling that they can no longer counsel clients about thorny situations International Tax: in writing. Boilerplate disclaimers on emails were of no help, said Lavadera, since these Lost in Translation standard addenda have become so routine ow do you define discrimination against that they’re virtually ignored, like “white foreigners in international tax law? That noise.” The IRS is taking such criticism to H was the question Mary C. Bennett of the heart, said Desmond, and exploring the pos- Organisation for Economic Co-operation sibility that “the rules are actually having the and Development (OECD) addressed in the opposite effect of what was intended, by cur- 10th annual David R. Tillinghast Lecture on tailing good written advice between lawyers International Taxation last fall. and taxpayers.” In “Nondiscrimination in International Schenk took a contrarian position on Tax Law: A Concept in Search of a Principle,” Circular 230, concluding that the tax profes- Bennett, a former partner at Baker & sionals’ complaints were exaggerated. “My McKenzie, now head of the Tax Treaty, reaction over the last year has been that the Transfer Pricing, and Financial Transactions level of rhetoric was really quite extraordi- Division at the OECD’s Centre for Tax Policy nary,” she said. “The protests—my career and Administration, explained that the U.S. is over; life as we know it will come to an and various other nations that comprise end; and I’ll never be able to send another the OECD and the European Union have

Michael Desmond, tax legislative counsel at the U.S. email—always struck me as a lot of lawyers agreed in principle that they won’t discrimi- Department of the Treasury. and accountants whining.” ■ nate against foreign nationals for tax purposes. This would include direct discrimination, such as taxing a foreign national more harshly than a domestic national “in the Analyzing Tax Reform same circumstances,” and indirect discrimination, such as not allowing nonresidents to Just 10 days after President Bush’s biparti- other things, recommended paring back the san panel delivered its 272-page report in home mortgage deduction for higher priced take the same deductions as residents. November 2005 on how to fix the biggest homes and eliminating deductions for state But the nondiscrimination principle is for- problems in the United States tax system and local taxes paid. Auerbach, who this malized in different ways in bilateral tax trea- and how to promote economic growth for year cotaught the Tax Policy and Public ties than it is in the E.C. Treaty. Additionally, all Americans, the Graduate Tax Program Finance Colloquium with Professor Daniel courts in the E.U. and the U.S. don’t interpret held “Tax Policy in the News: Perspectives Shaviro, cited the limitations placed on home on the Recommendations of the President’s mortgage deductions as one measure that the principle the same way at all. National Tax Reform Panel.” would benefit individuals with lower hous- courts in the E.U. countries, Bennett said, Professor Noël Cunningham moderated ing price points. Gentry, who served as a have been more willing to look beyond the a discussion among a distinguished group part-time consultant to the president’s ad- language of the law to determine whether of experts that included Alan Auerbach, visory panel, questioned the permanence of professor of economics and the law at the the current tax cuts and wondered whether the law affects noncitizens differently than University of California, Berkeley, School of taxes would eventually have to be raised to citizens. American courts, on the other hand, Law; William Gentry, associate professor of reduce the deficit. have so far tended to look at the terms of the economics at Williams College; Maya Mac- In the end, the report received mixed law alone. The result: inconsistent interpre- Guineas, director of the Fiscal Policy Pro- reviews. Each expert found flaws, but also tations of the nondiscrimination principle gram at the New America Foundation and saw benefits; at least one or two things on Michael Graetz, the Justus S. Hotchkiss Pro- the table will benefit everybody. As Graetz across different jurisdictions, something fessor of Law at Yale Law School. They ex- said, the advisory panel’s report has a certain Bennett sees as an intriguing challenge. “The amined the expansive report, which, among “smorgasbord quality.” topic interested me for a long time,” she said, “largely because it’s so baffling.”■

120 THE LAW SCHOOL AUTUMN 2006 Did the paper do the right thing in running The Press: A Right to Be Wrong? the story if it later turned out to be false? George Freeman, an assistant general counsel of the New York Times and adjunct professor of media law in NYU’s journal- ism department, felt it did, pointing out that the media has to balance accuracy with timely news reporting. He said that a well-informed public trumps the feelings of public officials. If a story proves to be wrong, Freeman said, that can be remedied on the corrections page. Freeman’s approach struck Martin London ’57, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, as inadequate; he considers the corrections page to be too little, too late. London argued that papers take From left, panelists George Freeman, Professor Diane Zimmerman, Martin London and Madeleine Schachter. too many risks on stories because they can afford to; courts have typically ruled in favor he First Amendment right to free speech prevent libel, correct any misinformation of the media. Still, London saw Freeman’s and a person’s protection against defa- and provide adequate retribution to parties larger point, conceding that “there is no T mation were debated—at times passion- that have been defamed. question that breathing room is needed for ately—during “Freedom of the Press or To focus the debate, Zimmerman de- the press,” but cautioned that there is no License to Libel,” the Law Alumni Asso tailed a scenario in which a newspaper value in defamation. Madeleine Schachter ciation’s Annual Fall Lecture. The panel prints a story stating a retired judge placed ’82, vice president and deputy general coun- discussion, moderated by Samuel Tilden violations on a piece of property in order sel of the Hachette Book Group, also sought Professor of Law Diane Zimmerman, focus to lower its price for her own benefit. The the middle ground: “Information is more ed on the public’s growing reliance on up- judge alleges that the article is incorrect and important,” she said. “Even if erroneous to-the-minute news, and measures that her image has been tarnished. The question: information is a part of it.”■

Chris Quackenbush Remembered supports programs for underprivileged chil- Three Last spring, the Law School dedicated a portrait in memory of Chris Quackenbush dren and endows a scholarship at the Law ’82, who died September 11, 2001, in the School. Quackenbush also served on the great reasons World Trade Center attacks. Quackenbush, a board of the University of North Carolina’s founding principal of Sandler O’Neill & Part- Educational Foundation. His portrait now ners investment banking division, had a stel- hangs in the John Sexton Student Forum in to give to the lar career; his background included stints in Furman Hall. Pictured in front of it are, from mergers and acquisitions at Skadden, Arps, left, Thomas O’Brien, secretary and treasur- Slate, Meagher & Flom and at Merrill Lynch er of the Jacob Marley Foundation; Carlton Capital Markets. A member of the Law Brown, the foundation’s president; Diana annual fund: School’s Board of Trustees since 1998, he Holden, the foundation’s executive director; created the Jacob Marley Foundation, which and Quackenbush’s widow, Traci. Impact Donations provide the impact of an endowment 1twenty times its size Evidence High participation provides evidence to foundations that our alumni believe in us 2 Mission Helps the larger mission of training creative, global and 3 honorable lawyers

AUTUMN 2006 THE LAW SCHOOL 121 ALUMNI ALMANAC

Attention For One Who Avoids It This profile of Jeffrey Friedlander ’70, by World’s Fair that hangs in Mr. Friedlander’s Joyce Purnick, appeared on December 19, impossibly neat office. 2005 in the New York Times. Some would find that daunting, almost as intimidating as advising mayors as different his is for the quiet ones, the many men as David N. Dinkins and Rudolph W. Giuliani.

and women who make the city work Mr. Friedlander finds it energizing. Times York New The Gavrysh/ Dima T by doing their jobs with little notice or “At different junctures I’ve asked myself, acclaim while others compete for attention are there legal issues more involved, more so easily (if fleetingly) won. meaningful day in day out,” he said in his Last week, while the head of the transit Church Street office on Friday. “Is there union sneered at the public on camera; the a client more meaningful than the City of governor campaigned for president, gun New York?” laws and the death penalty while punting His bosses are grateful that his answer

on the transit talks; and the president went has always been no. “I can say, ‘Jeff, how do IN THE LIMELIGHT: Jeffrey Friedlander, assistant into televised defensive mode, Jeffrey D. I solve this problem?’ and I will quickly get corporation counsel for New York City. Friedlander did what he usually does. the right answer, no ego, no politics,” said He worked in the city’s Law Department the current corporation counsel, Michael gency legislation needed after Sept. 11—his on such matters as eminent domain and A. Cardozo. proudest accomplishment is drafting anti- the next bond sale—with time out Thursday As Mr. Friedlander sees it, politics is not apartheid legislation in the 1980’s, under evening for a little-noticed City Hall cer- what distinguishes mayors. What does? In which the city’s largest public employee pen- emony where Mayor Michael R. Bloomberg his soft murmur of a voice, he offered some sion fund could divest itself of investments in and fans honored him for his service. discreet observations. companies doing business in South Africa. Mr. Friedlander, 58, is the city’s first “Koch was the most open,” he said. “You’d Reforms in South Africa made it unnec- assistant corporation counsel, and has been go into a meeting, he’d ask the youngest per- essary, but he still considers it “one of the with the city’s law office for 35 years. He has son a question, and he’d listen.” Giuliani? most meaningful things I ever did.” worked under 6 mayors and 12 corporation “He had a more closed circle.” Mr. Dinkins, Mr. Friedlander, one of four broth- counsels and today is second in command. whom he’s known since his premayoral days? ers born to an insurance broker and an He supervises divisions, writes and “A friend.” Mayor Michael R. Bloomberg? elementary public school teacher, grew up reviews mayoral legislation, advises the “Different. But he does listen to advice.” near Tompkins Square Park, developed a mayor and city agencies, negotiates with “Mayors share more than they may real- fascination for American history at Seward the City Council, and is in charge when the ize,” he added. “Regardless of who’s mayor, Park High School and pursued his interest corporation counsel is not around. education, public safety, social services, the at Hunter College. He could have left for more money, but budget—those are the issues. That’s what At New York University School of Law, here he is, still mastering the legal intrica- the city is about.” one of Mr. Friedlander’s professors, who cies of subjects broad and diverse because Of the dizzying variety of subjects Mr. was also in the very job Mr. Friedlander has this is New York, a “nation within a nation,” Friedlander has worked on—from gay rights now, suggested that he apply to an honors as it says on a playful map from the 1939 and campaign finance reform to the emer- program in his office. The student followed the advice of his mentor, Norman Redlich (a future corporation counsel), joined the city’s Law Department right out of law school, and, professionally speaking, he was home. Personally speaking, home is a brown- OUTLaw stone in Boerum Hill that Mr. Friedlander shares with his wife, Marjory Karukin Announces the Creation of an Friedlander, a librarian, and their daugh- NYU School of Law LGBT Alumni Network. ter, Julia, a senior at Princeton. He is not all work. A trip to Burgundy awakened an interest in wines, he collects inkwells from the The LGBT Network will: American Arts and Crafts period, and he is > Create a greater sense of community among past and a deacon of the All Souls Unitarian Church in Manhattan. present LGBT Law School students Mr. Friedlander has, of course, thought > Facilitate mentoring relationships and networking opportunities of moving on, and knows he could earn much more with a private law firm than he > Provide a means for LGBT alumni to share their experiences does with the city (about $180,000 a year). with the law school community But he stayed, and sounds as if he will as long as he can, for the most basic of reasons: If you are interested in joining the network, please email Karlis Kirsis ’07, “I love being here.”

122 THE LAW SCHOOL AUTUMN 2006 2006 Reunion Estreicher as moderator; “The Supreme Court at a Crossroads,” with panelists Matthew D. Law Alumni ostalgia mingled with substantive dis- Brinckerhoff ’90 and Chistopher J. Meade Association Awards course at the weekend’s four panel dis- ’96 joining moderator Burt Neuborne, the N cussions: “Guantánamo and the Rule Inez Milholland Professor of Civil Liberties; Jay Furman ’71, The Vanderbilt Medal of Law,” which featured Adjunct Professor and “Responding to Corporate Crime: Com George Lowy ’55, Judge Edward Donald Francis Donovan and Brennan pliance and Enforcement in the Post-Enron Weinfeld Award Center Associate Counsel Aziz Huq and Era,” which featured Samuel Buell ’92, was moderated by Hiller Family Foundation Kathryn Reimann ’82 and Walter Ricciardi Joel Ehrenkranz ’61 (LL.M. ’63), Alumni Achievement Award Professor of Law David Golove; “Dealing ’78 and was moderated by Norma Z. Paige with Talent: The Entertainment Lawyer at Professor of Law Jennifer Arlen ’86. Jennifer Arlen ’86, Legal Teaching Award Work,” with the participation of Craig Balsam The festivities carried on into the night Steven Banks ’81, Public Service Award ’86, Thomas Tyrrell ’71, Marvin Josephson at the Waldorf, where catching up at dinner, ’52 and L. Londell McMillan ’90 and Dwight music and the cha-cha were the only items Vanita Gupta ’01, Recent Graduate Award D. Opperman Professor of Law Samuel left on the docket. ■

1 2

3 4

5 6

(1) The entertainment law panel discussion featured, from left, moderator Professor Samuel Estreicher with L. Londell McMillan, Marvin Josephson, Thomas Tyrrell and Craig Balsam. (2) LL.M. graduates from 2001 enjoying their fifth-year reunion. (3) Vanderbilt Medal winner Jay Furman and his wife, Victoria Moran. (4) Maxroy Mitchell ’96 and his wife, Tynetta. (5) Recent Graduate Award winner Vanita Gupta with guest Chinh Le. (6) The swinging dance floor at the Waldorf.

AUTUMN 2006 THE LAW SCHOOL 123 ALUMNI ALMANAC

From Paris to the “Paris of the Americas”

As a preeminent international legal institution, the NYU School of Law has a growing community of alumni pursuing their livelihoods all over the globe. Each year, faculty members attending conferences or conducting work outside of the Big Apple serve as Law School ambassadors and catch up with alumni, as they did last year in Florence, Italy (Professors Samuel Estreicher and Richard Stewart), Chicago (Professor Estreicher), Cape Town, South Africa and Shanghai, China (Professor Eleanor Fox), Atlanta, Georgia and Monterrey, Mexico (Professor Barry Friedman) and Tel Aviv, Israel (Professor Joseph Weiler). Dean Richard Revesz also made trips to Paris, Geneva and Buenos Aires to greet prospective students and keep alumni informed of news from Washington Square.

Dean Revesz, center, with president of the NYU Club of France Laurence Olivier Dutheillet de Lamothe, member of the French Conseil d’Etat and Rahmil (M.C.J. ’96), fourth from left, and other guests at the Paris reception. justice at the French Constitutional Council, far left, with alumni in Paris.

Dr. Willi Dietschi (M.C.J. ’72), standing at left, president of NYU.CH, the Professor Ronald Noble, secretary general of Interpol, with Evelyne Fiechter- Swiss alumni association, receives a gift of appreciation from Dean Revesz. Widemann (M.C.J. ’76), left, and Dr. Aleya El Bindari Hammad in Geneva.

Horacio Beccar-Varela Jr. (M.C.J. ’56), left, with Julio C. Saguier (M.C.J. ’88), Roxana Kahale (M.C.J. ’90), left, with Juan Curutchet (LL.M. ’92), center, and president of La Nación, S.A., who hosted the reception in Buenos Aires. Michael Rattagan (M.C.J. ’93) at the Buenos Aires reception.

Packing Power for Students on the Road ing in the area. “As much as we would like to, the faculty and I are unable to visit all of the aShelle Davis ’07 was excited about on the International Court of Justice (ICJ) in places where we have alumni,” says Revesz. spending a semester at the University The Hague—but one who gave her a highly “This program is designed to connect these R of Amsterdam; only one thing could coveted internship, too. “Being at the ICJ accomplished people with one another, make the experience even better—connect- was a great experience,” says the AnBryce with our students and with the work the Law ing with an alumni mentor there. Davis, who Scholar. “I actually got to sit in on the 2006 School is doing now.” Next year, students is planning a career in international law, Bosnia-Herzegovina v. Serbia-Montenegro traveling to 18 international destinations, approached Dean Richard Revesz, the Office genocide hearings.” including Ghana, Argentina and Estonia, of Career Services and the Office of Alumni Davis’s experience was the catalyst for will plug into this powerful network in order Relations for help. They not only found her Students on the Road, a new program that to generate the most memorable and worth- a mentor—Thomas Buergenthal ’60, a judge matches students abroad with alumni liv- while experiences possible. ■

124 THE LAW SCHOOL AUTUMN 2006 nomics; she liked math but was discouraged A Firefighter and a Trailblazer by a teacher. She irked high school authori- For 24 years, FDNY Captain Brenda Berkman ties by organizing forums for voters to quiz school board candidates. “I thought that kids has been proving courage is gender neutral. should have some say in what kinds of things they could pursue,” she says. hunning lawyerly business suits to don Indeed, Berkman has earned two pro- Berkman graduated summa cum laude the blue uniform of the New York Fire motions by virtue of passing exams. Now as from St. Olaf College in Northfield, Minne S Department—as a woman, no less— captain of Engine 239 in Brooklyn, she is the sota, then in 1975 earned her M.A. in history Brenda Berkman ’78 knows what it means first to rush into a burning building. “Any from Indiana University, where she met her to follow Robert Frost’s proverbial road less firefighters who say they have never been now ex-husband, Kenneth Gordon, and traveled. “I knew I was in for a struggle, but frightened at an incident are either lying or moved to New York. She attended the NYU I’m the eternal optimist. Maybe it’s that mid- crazy,” she says. School of Law while working at her father-in- western thing,” says the native Minnesotan. She has earned a measure of respect and law’s law firm—whose client roster included A no-nonsense woman with the lean has “a very good relationship” with her all- the Uniformed Fire Officers Association. It physique of the former marathon runner male engine company, she says, while noting was in part getting to know the fire officers she is, a penetrating gaze and a surprisingly quiet and low voice, Berkman, 54, was the main subject of Taking the Heat: The First Women Firefighters of New York City, a documentary narrated by Susan Sarandon that conveys the isolation, harassment and danger these pioneering women endured. The film had its world premiere at Tishman Hall last February, and later aired on PBS. The facts are that in late 1977, about 500 women signed up for the first NYC firefighter entrance exam that wasn’t restricted to men. Of those who passed the written test, 89 continued to the physical one. All of them, including Berkman, failed. In 1979, Berkman filed a highly publicized, lengthy and contentious lawsuit that challenged the exam’s validity. A federal judge in 1982 upheld Berkman’s claims—that the feats required in the physical exam weren’t essential to fire fighting and discriminated against women—and a new exam and training program were ordered.

Later that year, Berkman joined the fire acad- A HERO’S WELCOME: Berkman returned to the NYU School of Law last February for the world premiere of a emy’s first class of 47 women trainees. documentary about New York City’s women firefighters. She is seen here in a still from that film. But the real battle was just beginning. The women were routinely harassed. One partic- that working with another woman would be through her job that piqued her interest in ularly dangerous act was to drain the wom- a plus. “But I’m so far along in my career. I’m joining the FDNY. en’s air tanks so that when they were called not going to spend my last few years agoniz- Almost 25 years after her victory, however, to a fire they either had to run in without oxy- ing about whether I’d like to be a lot happier. what rankles her most is how tenuous the gen or be considered cowards. The women I’m taking it for what it is, right now.” hard-fought gains have been. “After 9/11 the were shut out of meals and were subjected to Young women firefighters are grateful to buzzword was ‘the brothers,’” says Captain obscenities, verbal abuse, physical violence, Berkman for paving the way. “I don’t think a Peter Gorman, president of the Uniformed sexual molestation and even death threats lot of us would have the courage to do this Fire Officers Association. In the six months from other firefighters. “Not all men par- job if it weren’t for Brenda,” says Regina after 9/11, the FDNY hired just one woman ticipated in the harassment,” Berkman says. Wilson, 37, who joined the force in 1999. among more than 600 recruits, and today just However, those men who stood up to defend Berkman’s efforts have not only enabled 29 of the city’s nearly 11,500 firefighters are the women became targets themselves. women to work side by side with men, says women. Gorman agrees with Berkman that “There was a lot of opposition to having Wilson, but have led to even small improve- the city doesn’t do enough to recruit women women in the firehouse,” says Berkman’s ments that loom large in the everyday life of or minorities. He notes that the city rarely attorney, Clinical Professor of Law Laura a firefighter, like “having shoes and shirts uses women in their promotional efforts. Sager, who was then the director of the that fit, female bathrooms in the firehouse “I am proud that I challenged and con- Women’s Rights Clinic at NYU School of Law. and lingo that is gender friendly.” tinue to challenge the fire service for the “It was a guys’ club.” In many ways, fire fight- Even as a child, Berkman challenged the benefit of women and the larger commu- ing still is. “There is still a misogynist climate status quo. “One of my earliest memories is of nity,” Berkman says. “Being forced to con- that goes on in fire departments all over the trying to get into the [then-boys-only] Little form to narrow stereotypes of what you can world because some people still believe that League,” she says. At school, she wanted to and can’t do with your life, that hurts men this is a man’s job,” Berkman says. take shop, but was forced to study home eco- as much as women.” ■

AUTUMN 2006 THE LAW SCHOOL 125 ALUMNI ALMANAC

The Right Place at the Right Time breathtaking view of the Golden Gate Trustee Sloan Lindemann Barnett ’93 in in Washington, D.C., Joseph Collins ’75 in Bridge, a perch over the shimmering San Francisco, Richard Marmaro ’75 in Los Chicago, Chris Compton ’68 in Palo Alto A waters of Marina del Rey or the prom- Angeles and William Brewer III (LL.M. ’78) and Lawrence Green ’77 in Boston. They ise of genuine Southern hospitality were in Dallas graciously opened their beauti- all invited Law School alumni to cocktails, some of the added attractions for Law ful homes to alumni, faculty and admitted and encouraged their guests to mix, mingle School guests as they caught up with one and prospective students. In addition, other and keep up with the latest news emanating another at receptions in seven U.S. cities. generous hosts included Paul Berger ’57 from Vanderbilt Hall. ■

LOS ANGELES Flom, welcomes :guests Richard at Marmaro, his Marina a delpartner Rey home.at Skadden, Arps, Slate, Meagher &

: From left, Dean Revesz with Joseph Miller (LL.M. ’67), SAN FRANCISCO reception host Sloan Lindemann Barnett and Assistant Dean Kenneth Kleinrock.

WASHINGTON, D.C. : Host Paul Berger, a retired partner at Arnold & Porter, addresses the alumni and prospective students mingling at his firm’s offices.

BOSTON : Lawrence Green, a partner at Burns & Levinson, hosted an April reception at a reception hall called the State Room.

: From right, host William Brewer III, Skye Brewer, Dean Revesz and DALLAS Kit Sawers, executive director of the Bickel & Brewer Foundation.

126 THE LAW SCHOOL AUTUMN 2006 son or two blaze a path for me,” she said, Another First for Fox adding that former dean Norman Redlich Law Women announces Alumna of the Year award (LL.M. ’55) had appointed Fox an associate dean in charge of the J.D. division from 1987 to 1990; to date, Fox is the only woman to have held that position. Breaking barriers has been a way of life for Fox. Among her many posts, she has served as the first female chair of both the New York State Bar Antitrust Law Section and the Section on Antitrust and Economic Regulation of the Association of American Law Schools, and as the first female vice chair of the ABA Antitrust Section. Fox has made “extraordinary contributions to the legal world,” said Roecker, and it is important “to pay tribute to her humanity in an all-too-often cold profession.” That humanity is something Fox relishes. In addition to her books on antitrust and European Union law, mergers and central European competition policy, she has written a comic novel, W.L., Esquire (Marando Press, 1977), about women in the male- dominated legal profession. Fox clears time in her busy schedule to have lunch with her Professor Fox proudly displays her award alongside students Elise Roecker, left, and Carolyn Walther ’07. 1Ls, and goes above and beyond to keep her students engaged in the classroom. Every aw Women honored Professor Eleanor In her speech, Fox emphasized the year she recites a poem she wrote about Fox ’61 with its first Alumna of the Year importance of finding mentors, naming sev- Benjamin Cardozo’s opinion in Palsgraf L Award at their Alumnae Reception last eral inspirational female faculty members in v. Long Island Railroad Co. and proximate March, in recognition of the many ways in the audience, including Sylvia Law ’68 and cause. Said Roecker: “I can tell you my class, which she has led the way for female attor- Linda Silberman. But mentors can be men, at least, applauded.” The assembled guests neys. In a warm and well-received speech, too. “I had the good fortune of having a per- responded to Fox the same way. ■ Fox, the Walter J. Derenberg Professor of Trade Regulation, who teaches Antitrust Law, International and Comparative Competition Lawrence P. King Room Dedicated Policy, European Union Law and Torts, brief- ly sketched her long and distinguished career. Family and friends gathered last September bankruptcy law, a field in which King was She recalled that when she went to work for to dedicate a Vanderbilt Hall classroom in considered the expert. He introduced Leon- the U.S. attorney’s office in the 1960s, it was honor of Lawrence P. King. The room was ard Rosen ’54, a longtime friend and col- decorated with mementos including King’s league, who spoke of King’s “passion for the believed that women shouldn’t “get their Sir Harold Acton medal and a student car- law, what it is and what it should be.” Among hands dirty,” so she was placed in the civil toon of the professor in action. Dean Rich- King’s accomplishments was his founding of division, not the criminal one. Fox followed ard Revesz, the Lawrence P. King Professor the Lawrence P. King and Charles Seligson her philosophy of doing her best possible of Law, talked about King’s four decades on Workshop on Bankruptcy and Business Re- the faculty and his “tremendous passion” for organization. work no matter the circumstances, however, and that led her to become the first female partner at a major Wall Street firm, Simpson Thacher & Bartlett. “It never was suspected I would be a partner,” said Fox, by way of explaining how she eventually became one: through quiet, unassuming diligence. As Elise Roecker ’07, cochair of Law Women, observed in her introductory re marks, Fox’s impact has been far-reaching. “It is safe to say she has broken open antitrust law,” said Roecker, noting that Fox has advised two presidents, Clinton and Carter (for the latter, she served as commissioner of the National Commission for the Review of Antitrust Laws and Procedures); several countries including South Africa, Indonesia Dean Richard Revesz, left, Leonard Rosen and Denis Cronin converse in the King Room. and Russia; and the European Union.

AUTUMN 2006 THE LAW SCHOOL 127 Making the Grade

A MATTER OF DEGREE: Jenny Xiao Ling Huang accepts a Law School diploma on behalf of the J.D. Class of 2006 at the 174th University Commencement on May 11. At the ceremony, NYU President John Sexton bestowed honorary degrees on Mikhail Baryshnikov, Supreme Court Justice Anthony Kennedy, Xerox Chairman and CEO Anne Marie Mulcahy, French novelist Alain Robbe-Grillet and civic leader Wilma Stein Tisch. Beverly Sills and Law School alumna Rita E. Hauser also received awards. “The World Could Use You Now More Than Ever”

peaking frankly about the great responsibilities of leadership today, former executive director of UNICEF Carol Bellamy ’68, now president and CEO of World Learning, an organization that promotes interna- S tional understanding, addressed this year’s graduating class. She urged the graduates to think of themselves not only as lawyers, but as leaders—a profound difference, she said—adding that lawyers have the tools necessary to take charge. “You have a thorough understanding of the law and how it applies to the real world, [you] can truly have a permanent and lasting effect on all of man- kind.” She listed many injustices around the world: “Poverty, HIV/AIDS, disease, abuse and genocide are too complex to be solved by government and educators alone. We need your leadership.” Bellamy added, “It’s a privilege” to have graduated from the NYU School of Law. “Honor it and be proud.” Reflecting on an academic year that began with the devastating hurricanes along the Gulf Coast, Dean Richard Revesz spoke of his pride in the humanity of the graduating class. “I was deeply impressed by our students’ responses,” Revesz said. “You set up fundraising efforts and clothing Alexander Dmitrenko drives, and arranged legal assistance for those displaced by the devastation.” And he Dmitrenko’s road to the Law School was offered a parting wish: “My hope is that you quite different from Buskey’s, with his hav- combine your newly acquired knowledge ing grown up in what was then the Soviet with your passions; that you use what you Union and graduating magna cum laude have learned to take a stand with reason from Rostov State University Faculty of and integrity as well as conviction.” Law in Russia. He also earned two previous Two students who exemplify Revesz’s international LL.M. degrees, in Budapest ideal are Brandon Buskey and Alexander and Toronto, before receiving his tax LL.M. Dmitrenko, J.D. and LL.M. candidates respec- from the Graduate Tax Program at NYU. tively, who spoke on behalf of the class of “Having grown up in a Communist house- 2006. Both delivered unique perspectives hold, it was the rebel in me that wanted on their Law School careers. to come to the ‘cradle of capitalism’—New Carol Bellamy “The law cannot help people,” said Buskey, York City,” Dmitrenko said in his remarks, a Root-Tilden-Kern and an AnBryce scholar which included thank-yous in eight lan- who was raised in Fayetteville, North Carolina. guages. A prime example of “the global “But people who know the law can help peo- lawyer,” at 28 years of age Dmitrenko has ple.” In a crowd-pleasing, funny and person- already contributed to international taxa- ally reflective speech, Buskey described how tion and constitutional law in places like in his first year, Professor Bryan Stevenson’s Kazakhstan, Kyrgyzstan and Russia, as well admonition to “find your own place in the law” as landmark rulings concerning same-sex led him to focus on public interest law and marriage in Canada. He will start as a tax criminal justice by taking Professor Randy associate at Dewey Ballantine in the fall. Hertz’s Juvenile/Criminal Defense Clinic and Before the conclusion of the ceremony, becoming a board member of Law Students Lester Pollack ’57, chairman of the NYU Against the Death Penalty. He will continue to School of Law Board of Trustees, introduced follow this path in 2006-07, when he serves as Daniel Blaser and Elida Kamine, who pre- a clerk for the Honorable Janet C. Hall ’73 of sented a $78,000 gift from the class of 2006, the U.S. District Court of Connecticut prior to helping to ensure that future law students joining Stevenson’s Equal Justice Initiative of have the same opportunities for leadership Brandon Buskey Alabama the following year. and community that they had. ■

AUTUMN 2006 THE LAW SCHOOL 129 MAKING THE GRADE

Profiles Heather Childs tudents will often credit professors with inspiring in them a whole new view S of their future. For Heather Childs, lightning struck after taking Professor Noah Feldman’s The Administrative and Regulatory State course and attending a conference on global administrative law organized by Professors Richard Stewart and Benedict Kingsbury. “Everyone sees administrative law as boring, but it’s something I find fascinating as a conceptual matter,” says Childs. “It’s what tied law school together for me and is something I never would have expected.” Unexpected to others, as well, is Childs’s other passion: dance. Through a nonprofit group called House of the Roses, she puts her lifetime of dancing to use teaching New York City homeless children her craft. After graduating, Childs will clerk for Judge Emilio Garza of the U.S. Court of Appeals for the Fifth Circuit in San Antonio, in her home state of Texas. A note she wrote on American, European and global administrative law will also be published in the Journal of International Law and Politics. Childs is considering a Ph.D. in history, with a concentration on American administrative law and due process, leading to a possible career in academia. Soon enough it may be Childs’s turn to inspire future law students. ■

Commencement

America is not just a place.

America is an‘‘ idea—the idea of freedom. Hundreds of millions around the world are‘‘ watching us

to see if freedom works. And they

are skeptical. The verdict is out.

Anthony M. Kennedy Associate Justice, Supreme Court of the United States, Doctor of Laws recipient

130 THE LAW SCHOOL AUTUMN 2006 Thomas Leith

n Paris, where he was living and working as a jazz and funk drummer, Thomas Leith I found himself absorbed by old Supreme Court decisions, such as one reaffirming the constitutional status of the Miranda ruling, when a friend said, “You realize that normal people don’t read entire Supreme Court transcripts?” That comment led Leith, who at the age of 31 was planning a career change, to apply to law school. But what confirmed for him that law was the right choice was his experience in the Federal Defender’s Clinic. With three other clinic students, Leith represented an ambulance driver accused of disorderly conduct. “Students are only allowed to do petty offenses,” says Leith of the case. “But it’s not petty to the defendant.” Weeks of preparation, including reviewing testimony and dissecting a surveillance video, led to Leith presenting evidence and cross- examining witnesses during a seven-hour trial, at which Leith’s client was acquitted. “After you get to know your client and his story, you get really invested for the sake of the defendant,” says Leith. “We were scared to death of letting him down.” Leith observes that performing in a band onstage has many similarities to arguing in a courtroom before a judge and jury. His next gig? Working as an associate in the litigation department of Sidley Austin. ■

In recognition of her

outstanding‘‘ professional achievements, her hard work

in helping secure a more

peaceful world, her visionary philanthropic legacy‘‘ and

her unwavering devotion

to this institution….

Dean Richard Revesz, introducing Rita E. Hauser, who was presented the Albert Gallatin Medal by President John Sexton and Chairman of the Board of Trustees Martin Lipton

AUTUMN 2006 THE LAW SCHOOL 131 MAKING THE GRADE

Lais Washington

summer internship in sunny Palo Alto, California, revealed to Lais Washington A that corporate law just didn’t suit her. Spending weeks in the lovely glass-walled offices of Morrison & Foerster handling intellectual property cases, Washington kept thinking about her previous summer position in nearby Oakland, where she had been exhilarated by hitting the streets to canvas voters and rolling up her sleeves to draft the language in a ballot measure to legalize medical marijuana. “I had my own office and secretary,” says Washington of her Silicon Valley setup. “But it just felt wrong to me since I’d never so much as had my own desk or computer on a regular basis.” Instead, Washington, a Root-Tilden- Kern scholar, has found a better fit in New York. After graduation, she will work as a prosecutor in the Manhattan District Attorney’s office under the legendary Robert Morgenthau. By taking this position, she hopes to help lead the way for others, especially women of color, to consider prosecutorial work. Washington’s aspirations include returning to NYU. “I’m hoping it’s not too far off that I’ll come back to talk in the Leaders in Public Interest Series,” says Washington. “It would be great to walk into Vanderbilt as an attorney to share what I’ve learned.” ■

The very concept of New York‘‘ City and the life of our university stand as

a rebuke to those who say

that balkanization and

fragmentation is inevitable.

In your years here you have lived in a community‘‘ that

foreshadows the best of

the world to come.

President John Sexton, speaking to the Class of 2006

132 THE LAW SCHOOL AUTUMN 2006 Convocation Kudos Proud relations and scholarship donors celebrate with graduates of the Class of 2006 and share in the joy and honor of attaining degrees from the New York University School of Law.

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AUTUMN 2006 THE LAW SCHOOL 133 MAKING THE GRADE

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10. Benjamin T. Huebner 19. Gregory M. Perry 27. Audrey Weissberg (LL.M.) 35. Sullivan & Cromwell Public Who’s Who with his mother-in-law, with his father, with her father, Kenneth Interest Scholar Adam Barbara H. Dildine ’74, Law School Trustee Weissberg (LL.M. ’80) J. Heintz was hooded and his father-in-law, Wayne Perry (LL.M. ’76) by Law School Trustee 1. Ari S. Bassin Peter A. Norling ’74 28. Katherine H. Worden Kenneth M. Raisler ’76. with his father, 20. Donald Theodore Rave with her mother, Steven Bassin ’66 11. Alonso Indacochea III with his grandfather Virginia Worden ’75 36. William & Mary Sterling Pardo de Zela (LL.M.) Donald Theodore Rave Scholar Miranda B. 2. Daniel Blaser, chair of with his father, Ricardo (LL.B. ’56) 29. Katharine M. Zandy Johnson was hooded by the 2006 Class Gift Indacochea (M.C.J. ’77) with her father, William C. Sterling Jr. ’59 Committee, with his 21. Annette C. Rosskopf John Zandy (LL.M. ’76) and Mary B. Sterling. father, Dr. Martin J. Blaser 12. Douglas B. Heitner (LL.M.) with her fiancé, with his father, Tobias Eberl (LL.M. ’05) 30. Shira J. Zatcoff 37. KPMG Scholar William 3. Katherine A. Brodsky Kenneth Heitner ’73 with her uncle R. Johnson (LL.M.) was with her father, (LL.M. ’77) 22. Jacob Sasson Michael J. Widman ’86 hooded by Lawrence with his twin brother, Pollack (LL.M. ’88). Daniel J. Brodsky 13. Sophi K. Jacobs Joseph Sasson ’05 with her father, 38. Wilmer Cutler Pickering 4. Jared Bybee with his wife, Scholars and Donors Professor James Jacobs 23. Hale/Dorr Root-Tilden- Mehrsa Baradaran ’05, Gina S. Spiegelman Kern Scholar Lais S. and their daughter, with her aunt Professor 31. Deborah Rachel Linfield 14. Washington was hooded Cyra Baradaran-Bybee Dena C. Kesselman Helen Hershkoff Fellow Anne N. Arkush with her sister Michelle was hooded by by C. Hall Swaim ’64. 5. Lesley Anne Coben Kesselman Sadowsky ’00 24. Elizabeth Jane Sudler Trudy Linfield. with her father, with her parents, Eileen Not Photographed: Jerry Coben ’69 15. Scott Malagold FitzGerald Sudler ’74, 32. AnBryce Scholar Brandon with his brother chair of the Dean’s J. Buskey was hooded Law School Trustee 6. Arielle Cohen David Malagold ’01 Strategic Council, by Law School Trustee Jay M. Furman ’71 hooded with her parents, and Peter Sudler ’73, Anthony Welters ’77 Furman Academic Fellows: Naomi Weintraub Cohen 16. Kenneth Mantel Law School trustee and Beatrice Welters. Elizabeth C. Arens ’68 and Harvey Cohen ’68 with his parents, Joan Licht Mantel ’75 25. David L. Tisch 33. Alex E. Weinberg Fellow Jenny L. Huang Michael A. Livermore 7. Alexander Dmitrenko and Arthur Mantel ’70 with his father, Andrew F. Gordon (LL.M.) Jeremy C. Marwell (LL.M.) with his cousin University Trustee was hooded by Joy E. Milligan Marsha Metrinko, NYU 17. Ian McGinley Daniel Tisch Kenneth Heitner ’73 Kathleen Marie O’Neill School of Law Director with his father, (LL.M. ’77). William J. Wailand Donald Theodore Rave III of Development Patrick W. McGinley 26. (LL.M. ’71) with his parents, 34. M. Carr Ferguson Fellow Adele Wailand ’73 8. Adam David Greenwood Andrew L. Grossman with his uncle 18. Solomon Michael Oliver and George Wailand ’72 was hooded by Making the Grade Ken Greenwood ’82 with his father, Law School Trustee photographs by Leo Sorel Solomon Oliver Jr. ’72 M. Carr Ferguson 9. Joshua W. Heideman with (LL.M. ’60). his cousin Ron Tzadik ’03

AUTUMN 2006 THE LAW SCHOOL 135 A Chat with Simon Chesterman

imon Chesterman, former executive director of the Your wife, Ming Tan, is Singaporean. How did you meet? We met getting our Ph.D.s at Institute for International Law and Justice, is the Oxford, then she moved to Singapore and I moved to New York via Yugoslavia. While I new director of the Singapore Program. The dual- was doing research on East Timor, my then- boss allowed me to route each of my trips degree LL.M. program, conducted with the National through Singapore with a week of leave. I S eventually persuaded Ming to marry me University of Singapore, will matriculate its first class in and move to New York.

May 2007. Chesterman is an expert on international law What will she do after your move? She runs a corporate foundation where her boss is and the U.N. who has lived or worked in Afghanistan, Singaporean. She will move jobs within the organization and be based out of Singapore, China, Rwanda and Serbia. A native Australian, he spoke so it works very well.

with senior writer Graham Reed about heading back East. Are you and Ming looking forward to raising a child in Singapore? We’re raising him to Why is the new LL.M. program in Singapore? but not yet to study law across jurisdictions. be bilingual in English and Chinese. That’s Singapore presents the best gateway to Asia, Together with the National University of going to be even easier in Singapore. In par- which, economically, is incredibly global- Singapore Faculty of Law, we hope to be part ticular, having a family network will be use- ized, but legally, in terms of international of a transformation in that way of thinking. ful. We’ll have grandparents who are keen institutions, is not. There’s a great deal of on spoiling our child rotten. readiness to practice law across jurisdictions The program offers a specialization in justice and human rights. Will that be a challenge in Who spoils children worse, Australian or a country known to be strict? Yes, but I don’t Singaporean grandparents? In terms of toys, think it will be a danger. One of the things he’s in a bidding war between both sets at we’re hoping will come out of this is a two- the moment. The difference is best sum- way conversation—that Singaporeans and marized not by grandparents, but by people other people in this program learn some- you meet on the street. Our son was born thing from the Americans and the faculty very large and he’s got a nice healthy belly. who go over there, and that it’s just as con- In Australia, people will be amused and rub ceivable that we learn something from them. his belly and call him a little Buddha. In Singapore, old people will pass us on the You’ve been critical of the secretary-general street and say, he’s not eating enough. and the United Nations, but honestly, is the U.N. just an unattainable ideal? The real prob- In 2005, the Melbourne newspaper The Age lem is mismatched expectations. Is the U.N. listed you as one of “50 Australians Who an organization that does things or is it a dip- Matter” along with Germaine Greer, Rupert lomatic conference where member states get Murdoch and Dame Edna. Are you mobbed by together and agree or disagree on shared pol- adoring fans when you go home? Mercifully, icies? The answer is, of course, that it’s both. no. It was an enormous compliment, not But the confusion between those functions least because of the category I was included leads to disappointment. The U.N. can never in, “Stirrers,” a wonderfully Australian slang be everything to everyone. To quote former term meaning those who challenge author- Secretary-General Dag Hammarskjöld, the ity or speak truth to power. U.N. was not created in order to bring us to heaven, but to save us from hell. You are aware that Hugh Jackman was just a runner-up? I’ll now think twice about sending What will you miss most about New York? a copy to my mother. The multicultural lifestyle, the people who are passing through town and the fact that What do you like to do when you’re not think- for my line of work, the U.N. is right around ing about peacekeeping and nation-build- the corner. There’s also Broadway, restau- ing? I enjoy playing with my son, teaching rants and so on. But with a one and a him new words and how to walk, things like half year old child, my wife and I that. I run, travel, read. I write. When I was at realized that we don’t actually do Oxford, I wrote a play. many of these things. We’ll miss the theory rather than the practice. What’s it about? It’s about 50 minutes long. ■

136 THE LAW SCHOOL AUTUMN 2006 The the magazine of the new york university Law School Law school of law

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save the date! may 5, 2007 the magazine of the new york university school of law autumn 2006 were you in the class of Law School 1957, 1962, 1967, 1972, 1977, 1982, 1987, 1992, 1997 or 2002?

where we stand…one year later million $3.4 — raised as of August 1, 2006