Fordham Law Review
Volume 65 Issue 1 Article 1
1996
Dedication to the Honorable William Hughes Mulligan
Follow this and additional works at: https://ir.lawnet.fordham.edu/flr
Part of the Law Commons
Recommended Citation Dedication to the Honorable William Hughes Mulligan, 65 Fordham L. Rev. 1 (1996). Available at: https://ir.lawnet.fordham.edu/flr/vol65/iss1/1
This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. FORDIAM LAW REVIEW
Volume 65
1996-1997
FORDHAM LAW REVIEW
VOLUME LXV OCTOBER 1996 NUMBER 1
CONTENTS
DEDICATION
A DEDICATION TO THE HONORABLE WILLIAM HUGHES MULLIGAN ...... 1
SPECIAL ISSUE INSTITUTIONAL CHOICES IN THE REGULATION OF LAWYERS FOREWORD
LEGAL PROCESS SCHOLARSHIP AND THE REGULATION OF LAWYERS ...... Ted Schneyer 33 ARTICLES AND RESPONSES
CONFLICTS OF INTEREST IN LITIGATION: THE JUDICIAL ROLE ...... Bruce A. Green 71
DEVELOPING THE JUDICIAL ROLE IN CONTROLLING LITIGATION CONFLICTS: RESPONSE TO GREEN ...... Susan R. Martyn 131
GAME THEORETIC AND CONTRACTARIAN PARADIGMS IN THE UNEASY RELATIONSHIP BETWEEN REGULATORS AND REGULATORY LAvYERS ...... Richard W. Painter 149
RESPONSE TO PAINTER ...... Ian Ayres 201
PROFESSIONAL LIABILITY INSURERS AS REGULATORS OF LAW PRACTICE ...... Anthony E. Davis 209
PROFESSIONAL LIABILITY INSURANCE AS INSURANCE AND AS LAWYER REGULATION: RESPONSE TO DAVIS ...... Charles Silver 233
ABA REGULATION OF CONTINGENCY FEES: MONEY TALKS, ETHICS WALKS ...... Lester Brickman 247
PRINCIPLED OPINIONS: RESPONSE TO BRICKMAN ...... Susan P. Koniak 337 WHO SHOULD REGULATE THE ETHICS OF FEDERAL PROSECUTORS? ...... Rory K Little 355
WHO CAN BEST REGULATE THE ETHICS OF FEDERAL PROSECUTORS, OR, WHO SHOULD REGULATE THE REGULATORS?: RESPONSE TO LITrLE ...... Fred C. Zacharias 429
AFTERWORD
How SHOULD WE DETERMINE WHO SHOULD REGULATE LAWYERS?-MANAGING CONFLICT AND CONTEXT IN PROFESSIONAL REGULATION ...... David B. Wilkins 465
NOTE
BEYOND SEX DISCRIMINATION: A PROPOSAL FOR FEDERAL SEXUAL HARASSMENT LEGISLATION ...... Deborah N. McFarland 493 FORDHAM LAW REVIEW
VOLUME LXV NOVEMBER 1996 NUMBER 2
CONTENTS
REMARKS
MATTERS OF LIFE AND DEATH ...... The Honorable Liam Hamilton 543
ESSAYS
RESPONSES TO GLASS CEILINGS AND 0PEN DoORS. WOMEN'S AD VANCEMENT IN THE LEGAL PROFESSION
FoREwoRD ...... The Association of the Bar of the City of 561 New York, Committee on Women in the Profession
MORE GLASS CEILINGS THAN OPEN DOORS: WOMEN As OUTSIDERS IN THE LEGAL PROFESSION ...... Eve B. Burton 565
MOVING MOUNTAINS: A COMMENT ON THE GLASS CEILINGS AND OPEN DOORS REPORT ...... The Honorable Judith S. Kaye 573
PERSONAL REFLECTIONS ON GLASS CEILINGS AND OP" DOORS ..... Bettina B. Plevan 577
M'rs OF MERIrOCRACY ...... Deborah L. Rhode 585
RESPONSE TO GLASS CEILINGS AND OPEN DOORS: A MODEST PROPOSAL FOR CHANGE ...... Judith P. Vladeck 595
GLASS CEILINGS AND OPEN DOORS: A REACTION ...... The Honorable Patricia M. Wald 603
GLASS CEILINGS AND OPEN DOORS: A RESPONSE ...... Mary Jo White 619
ARTICLES
Tm CHAOS OF 12 U.S.C. SECTION 1821(k): CONGRESSIONAL SUBSIDIZING OF NEGLIGENT BANK DIRECTORS AND OFFICERS? ...... Steven A. Ramirez 625 EQUITABLE RECOUPMENT: REVISITING AN OLD AND INCONSISTENT REMEDY ..... Camilla E. Watson 691
NOTE
THE NEWSWORTHINESS REQUIREMENT OF THE PRIVILEGE OF NEUTRAL REPORTAGE IS A MATTER OF PUBLIC CONCERN .... Justin H. Wertman 789 FORDHAM LAW REVIEW
VOLUME LXV DECEMBER 1996 NUMBER 3
CONTENTS
ARTICLES
DRAcoNiAN FomrrUIREs OF INSURANCE: COMMONPLACE, INDEFENSIBLE, AND UNNECESSARY ...... Eugene R. Anderson 825 Richard G. Tuttle Susannah Crego RECONCEPTUALIZING THE JOINT DEFENSE DoCTRiNE ...... Deborah Stavile Bartel 871
TowARDS A COMMON LAW OF SENTENCING: DEVELOPING JUDICIAL PRECEDENT IN CYBERSPACE ...... The Honorable Robert W. Sweet 927 D. Evan van Hook Edward V. Di Lello NOTES
COMMON LAW PROTECTION OF INDIVIDUALS' RIGHTS IN PERSONAL INFORMATION .. William J. Fenrich 951
AN EQuALITY APPROACH TO WRONGFUL BiRTH STATUTES ...... Stephanie S. Gold 1005
WHEN NONUSE Is USEFUL: BANKRUPTCY LAW IN POST-COMMUNIST CENTRAL AND EASTERN EUROPE ...... Michael Kim 1043
A CASE FOR FAIRNESS IN PUBLIC WORKS CONTRACTING ...... Gene Ming Lee 1075
CONFLICTS BETWEEN ATTORNEYS AND SOCIAL WORKERS REPRESENTING CHILDREN IN DELINQUENCY PROCEEDINGS ...... Lisa A. Stanger 1123
THE SUPREME COURT GoES DORMANT WHEN DESPERATE TIMES CALL FOR DESPERATE MEASURES: LOOKING TO THE EUROPEAN UNION FOR A LESSON IN ENVIRONMENTAL PROTECTION ...... Erin A. Walter 1161
SECURITIES REGULATIONS IN CHINA AND THEIR CORPORATE FINANCE IMPLICATIONS ON STATE ENTERPRISE REFORM ...... K Matthew Wong 1221
FORDHAM LAW REVIEW
VOLUME LXV MARCH 1997 NUMBER 4
CONTENTS SYMPOSIUM FIDELITY IN CONSTITUTIONAL THEORY
EDITORS' FoR woRD ...... 1247
FIDELITY AS INTEGRITY THE ARDUOUS VIRTUE OF FIDELITY: ORIGINALISM, ScALIA, TRIBE, AND NERVE ...... Ronald Dworkin 1249
THE ImPORTANCE OF HUMILITY IN JUDICIAL REviEw: A COMMENT ON RONALD DwoRKIN's "MORAL READING" OF THE CONSTITUrION ...... Michael W. McConnell 1269
CONSTITUTIONAL INVOCATIONS ...... Frederick Schauer 1295
INTEGRITY AND UNIVERSALITY: A COMMENT ON RONALD DwoRKiN's FREEDOM'S LAW ...... Robin West 1313 FIDELITY TO OUR IMPERFECr
CONSTITUTION ...... James E. Fleming 1335 FIDELITY AS INTEGRITY: COLLOQUY ...... Panel 1357
FIDELITY AS TRANSLATION FIDELITY AND CONSTRAINT ...... Lawrence Lessig 1365
THE TRADITION OF THE WRrITEN CONSTrrUrION: A COMMENT ON PROFESSOR LESSIG'S THEORY OF TRANSLATION ...... Steven G. Calabresi 1435
TRANSLATION: WHO NEEDS IT? ...... Sanford Levinson 1457
ON FIDELITY IN CONSTrrrUTIONAL LAW ...... Jed Rubenfeld 1469
DISCOUNTING AccoUNTABLrY ...... Abner S. Greene 1489 FIDELITY AS TRANSLATION: COLLOQUY ...... Panel 1507 FIDELITY AS SYNTHESIS A GENERATION OF BETRAYAL? ...... Bruce Ackerman 1519 CONSTITUTIONAL FIDELITY/DEMOCRATIC
AGENCY ...... Frank I. Michelman 1537
THE BETRAYAL OF JUDGMENT ...... Lawrence Sager 1545
CONSTITUTING WE THE PEOPLE ...... Mark Tushnet 1557
THE PRACTICE OF FAITH ...... Martin S. Flaherty 1565
FIDELITY AS SYNTHESIS: COLLOQUY ...... Panel 1581
FIDELITY THROUGH HISTORY FIDELITY THROUGH HISTORY (OR TO IT) ... Jack N. Rakove 1587
THE LIVING HAND OF THE PAST: HISTORY AND CONSTITUTIONAL JUSTICE ...... ChristopherL. Eisgruber 1611
FIDELITY TO HISTORY-AND THROUGH IT .... Larry Kramer 1627
A FEw THOUGHTS ON CONSTITUTIONALISM, TEXTUALISM, AND POPULISM ...... Akhil Reed Amar 1657 FIDELITY THROUGH HISTORY AND TO IT:
AN IMPOSSIBLE DREAM? ...... Robert J. Kaczorowski 1663
FIDELITY THROUGH HISTORY: COLLOQUY ...... Panel 1693
DOES THE CONSTITUTION DESERVE OUR FIDELITY? AGREEMENTS WITH HELL AND OTHER OBJECTS OF OUR FAITH ...... J.M. Balkin 1703
FIDELITY, INDETERMINACY, AND THE PROBLEM OF CONSTITUTIONAL EVIL ...... Michael J. Klarman 1739
FIDELITY AND CONSTITUTIONAL ASPIRATIONS ...... Sotirios A. Barber 1757
THE MEANING OF BLACKS' FIDELITY TO THE CONSTITUTION ...... Dorothy E. Roberts 1761
"FREEDOM FROM UNREAL LOYALTIES": ON FIDELITY IN CONSTITUTIONAL INTERPRETATION ...... CatharineA. MacKinnon 1773
LEARNING FROM LINCOLN ...... William Michael Treanor 1781 DoES THE CONSTITUTION DESERVE OUR FIDELITY?: COLLOQUY ...... Panel 1787
REFLECTIONS ON FIDELITY ...... Ronald Dworkin 1799 NOTE
THE REHNQUIST COURT'S CHANGED READING OF THE EQUAL PROTECTION CLAUSE IN THE CONTEXT OF VOTING RIGHTS ...... JeanmarieK Grubert 1819
FORDHAM LAW REVIEW
VOLUME LXV APRIL 1997 NUMBER 5
CONTENTS
ARTICLES
NATIONAL LAWS, INTERNATIONAL MONEY: REGULATION IN A GLOBAL CAPITAL MARKET ...... Stephen J. Choi 1855 Andrew T Guzman
MEASURING THE GAINS OF TRADEMARK INFRINGEMENT ...... Dennis S. Corgill 1909
FINANCIAL REPORTING AND RISK MANAGEMENT IN THE 21ST CENTURY ...... Richard I. Miller 1987 Michael R. Young NOTES
PRESERVING PROCEDURAL DuE PROCESS FOR LEGAL IMMIGRANTS RECEIVING FOOD STAMPS IN LIGHT OF THE PERSONAL RESPONSIBILITY Acr OF 1996 ...... Todd G. Cosenza 2065
LET JUSTICE FLOW LIKE WATER: THE ROLE OF MORAL ARGUMENT IN CONSTITUTIONAL INTERPRETATION.. David L. Fitzgerald 2103
BETWEEN A ROCK AND A HURD PLACE: PROTECTING THE CRIMINAL DEFENDANT'S RIGHT TO TESTIFY AFTER HER TESTIMONY HAS BEEN HYPNOTICALLY REFRESHED ...... Antonia F. Giuliana 2151
FROZEN LIFE'S DOMINION: EXTENDING REPRODUCTIVE AUTONOMY RIGHTS TO IN VITRO FERTILIZATION ...... Samuel A. Gunsburg 2205
FROM THE INTERNET TO COURT. EXERCISING JURISDICTION OVER WORLD WIDE WEB COMMUNICATIONS ...... Gwenn M. Kalow 2241 POWER TO THE PEOPLE: ALLOWING PRIVATE PARTIES TO RAISE CLAIMS BEFORE THE WTO DISPUTE RESOLUTION SYSTEM ...... Glen T Schleyer 2275
A DERIVATIVES DILEMMA: THE TREASURY AMENDMENT CONTROVERSY AND THE REGULATORY STATUS OF FOREIGN CURRENCY OPTIONS ...... Thomas A. Tormey 2313 FORDHAM LAW REVIEW
VOLUME LXV MAY 1997 NUMBER 6
CONTENTS
REMARKS
JUDGING CASES V. COURTING PUBLIC OPINION ...... The Honorable Joseph W. Bellacosa 2381
PRESENTATION OF THE FORDHAM-STEIN PRIZE TO JUDGE GERALD BARD TJOFLAT . The Honorable Byron R. White 2405 The Honorable Gerald Bard Toflat
ARTICLES
WARRANTIES OF TITLE, FORECLOSURE, SALES AND THE PROPOSED REVISION OF U.C.C. § 9-504: HAS THE PENDULUM SWUNG Too FAR? ...... Robyn L. Meadows 2419
THE ADMISSION OF DNA EVIDENCE IN STATE AND FEDERAL COURTS ...... The Honorable George Bundy Smith 2465 Janet A. Gordon NOTES
SHATTERING THE MYTH: MEDIATING SEXUAL HARASSMENT DISPUTES IN THE WORKPLACE ...... CarrieA. Bond 2489
PROTECrING OLDER AMERICANS WORKING FOR FOREIGN EMPLOYERS FROM AGE DISCRIMINATION IN EMPLOYMENT... Lisa A. Butler-Brust 2535
PROSECUTORIAL DISCRETION AND THE DEATH PENALTY: CREATING A COMMITTEE TO DECIDE WHETHER TO SEEK THE DEATH PENALTY ...... John A. Horowitz 2571
CALIFORNIA'S UNCONSTITUTIONAL PUNISHMENT FOR HEINOUS CRIMES: CHEMICAL CASTRATION OF SEXUAL OFFENDERS ...... Raymond A. Lombardo 2611 BYSTANDER DISTRESS AND Loss OF CONSORTIUM: AN EXAMINATION OF THE RELATIONSHIP REQUIREMENTS IN LIGHT OF ROMER V. EVANS ...... Laura M. Raisty 2647
How CONSERVATIVE IS THE REHNQUIST COURT? THREE ISSUES, ONE ANSWER ...... Staci Rosche 2685
CONFIDENTIALITY, COUNSELING, AND CARE: WHEN OTHERS NEED TO KNOW WHAT CLIENTS NEED TO DISCLOSE ...... Janine Sisak 2747
MAY I ASK YOU A PERSONAL QUESTION? THE RIGHT TO PRIVACY AND HIV TESTING IN THE EUROPEAN COMMUNITY AND THE UNITED STATES ...... Ann E. Stanley 2775
REPRESENTING POLICE OFFICERS AND MUNICIPALITIES: A CONFLICT OF INTEREST FOR A MUNICIPAL ATTORNEY IN A § 1983 POLICE MISCONDUCT SUIT .... Nicole G. Tell 2825 FORDHAM LAW REVIEW VOLUME LXV OCTOBER 1996 NUMBER 1
EDITORIAL BOARD TnorTH J. HoiumAN Editor-in-Chlef ANTHoNY J. DREYER Managing Editor JOHN H. CHUN SUSAN D. HAWces Senior Articles Editor WIL1AM J. FENRICH Senior Articles Editor Writing & Research Editor JEANE rE REDMOND ANTHONY C. sCiA Annual Ethics Editor Symposium Editor STEPHANIE S. GOLD HEATHER M. JoHNsON DEBORAH N. MCFARLAND Notes & Articles Editor Notes & Articles Editor Notes & Articles Editor DAVID R. OWEN STACEY SABO JUSTIN H. NVERTAN Notes & Articles Editor Notes & Articles Editor Notes & Articles Editor ASSOCIATE EDITORS MELISSA S. ALwANr, GENE MINo LEE ERIN A. VALT-ER MICAEL Kim PnuIP J. POWER K. MATMHEW WONO LISA STANGER MEMBERS DAVID 0. AMENDOLA CAROLYN M. KRANMR JASON R. RmsEm CRAIG A. ASCHER SIMON R. MALXO SALVATORE A. RoAu.t.%v~o JONATHAN K. COHN ANDREW M. MARTIN BRENDAN P. RYAN JASON A. D'ANGELO JOSEPH T. McKRNAN CORDEI 1A S. RYAN MARISA DIMEGLiO RIcHARD L Pucao TODD H. SEJGEL ADAM M. ENDICK KAREN RAMOS THOMS A. TOR.mY MICHAEL E. GILLIGAN PHLIP J. RICHARDSON SHELBY ULA.N LILLIAN SPECK GROSSBARD DOUGLAS L VHmrAR
STAFF CHARLES C. AcHKAR CARRIE GIRGEN'F JANET R. MURTHA JULI L BARKER MICHELLE Gn-m.soHN MARGERY H. PERL%urmR DAVID J. BLUE ANToNIA F. GIULIANA BRE WSTR PETruS PAUL A. BRANCATO TERI GOLDBERG LAURA M. RAIS MARTN J. BoGuE TODD D. GoRm" ToMtY M. Roan CARRIE BOND JEANMARtE GRUBERT STACI RoscHE LISA A. BUTLER-BRusT SAm.EL A. GUKSBURG JACK B. SARNo JOSEPH A. CALASOEEI-rA DAVID N. HECHT TA..u ScAROLA DICxSoN C. CIN ALExANDRA E. Ht,7Es GLEN. T. SHLEE KARA FL CHING DANIEL S. HO.zmAN ALLISO, R. ScHARLv TODD G. COsENZA JOHN A. HOROwrm JOSEPH B. SHUsIOFsxy DAVID J. DANON STACY HORTH-NEUBERT MICHAEL SILVERBERG STEPHEN A. DEVANEY GwENN M. KALOW JANINE SISAK MARGARET M. DROHAN GARY L KAPI.AN A.-.%- STANLEY DAVID S. FNKELSmN JUN-KYU KOH ROSA E. So.N DAVID L FITZGERALD Mrr.TL H. KRAUS NIcoLE TEL. PATRICK J. FLANAGAN NAFATLI T. LEsHNXowrz CAROL J. WHTESIDES THOMAS T. FREEDMAN RAYMOND A. LOMBARDO DAISLS YOSHIDA ERIC D. GILL JULIE YOUNG MIN EIZABETH M. Zrro MICHAEL P. MOYER
LISA N. GURLEY Business Secretary WILLIAM HUGHES MULLIGAN 1918-1996 DEDICATION
THE BOARD OF EDITORS OF THE FORDHAM LAW REVIEW
Dedicates this Issue to the Memory of
THE HONORABLE WILLIAM HUGHES MULLIGAN Class of 1942 W ILLIAM HUGHES MULLIGAN was a beloved and valued member of the Fordham community. As a professor, dean, judge, and practitioner, he made a profound mark on the law and on those around him. Judge Mulligan graduated from Fordham College in 1939, and from Fordham Law School in 1942, where he was an Editor of the Fordham Law Review. After serving in the Army during World War II, Judge Mulligan returned to Fordhiam Law School as a member of the faculty. As Dean John Feerick once noted, Judge Mulligan "taught practically every course in the curriculum, including criminal law, pro- cedure, equity, trade regulation and insurance law."' In 1956, he was named Dean and Wilkinson Professor of Law at Fordham Law School. He recruited a stellar faculty, and planned and launched Fordham's move to its present Lincoln Center campus. He served as counsel to the 1967 New York State Constitutional Conven- tion, and as Chair of the State Commission on Reapportionment of the Legislature. In 1971 Judge Mulligan was appointed to the United States Court of Appeals for the Second Circuit by President Richard Nixon. After a decade of distinguished service on the federal bench, he stepped down and became a partner at the law firm of Skadden, Arps, Slate, Mea- gher & Flom. Judge Mulligan also served as a director of Catholic Charities for the Archdiocese of New York between 1985 and 1991. Judge Mulligan's career was marked by numerous awards and dis- tinctions, including: the New York Bar Association Gold Medal in 1982; the American Jewish Committee's Learned Hand Human Rela- tions Award in 1986; and the 1990 Fordham-Stein Prize. In 1995, Fordham established an endowed academic chair in International
1. John D. Feerick, Remarks Delivered on the Occasion of the Presentation of the Fordham-Stein Award to the Honorable William Hughes Mulligan, 59 Fordham L Rev. 479, 480 (1991). 2 FORDHAM LAW REVIEW [Vol. 65
Legal Studies, named in his honor, to bring distinguished visiting professors from around the world to teach at the law school. The alumni of the law school also have established a scholarship in his name. In addition, Fordham Law School's annual Constitutional Criminal Law Moot Court Competition continues to bear his name. As the following remarks attest, Judge Mulligan was a man of tire- less devotion-to his alma matter, his profession, his church, and his family. It is no small wonder that he leaves behind so many lives touched by him. We at the Fordham Law Review are honored to have had him as "one of our own," and, in recognition of his enduring leg- acy, are proud to dedicate the October 1996 Issue to his memory.