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www.stanfordalumni.org SUMMER 2001 / ISSUE 60 Contents

Features ,------_e 14 BEYOND NAPSTER By Doug Fine Copyright, Fair Use, and Intellectual Property Collide in Cyberspace P2P networking technology has revolutionized file swapping, but now new business models are emerging to beat down the legal challenges faced by upstarts like PROFESSOR Napster. Here's what the experts LAWRENCE LESSIG ----1------111IIII------see in our digital future. I 20 ELECTION REVIEW By Mel Taylor Stanford Law School was very well represented during Election 2000. Professor Pamela Karlan led the way through the media blitz, Dean Kathleen Sullivan played a role in the first election case brought before the u.S. Supreme Court, the Robert Crown Library won a national award for its election reference database, and Election 2000: Epilogue was presented as an open forum to examine this important chapter in election history.

20 Departments

2 From the Dean 4 Letters 5 NewsBriefs 26 Professors in Print 28 Alumni Weekend 2000

32 Law Gatherings

33 Classmates 76 In Memoriam

COVER ILLUSTRATION by Ron Chan 11

STANFORD LAWYER 1 Major Classroom Renovation \Vill Support Integration of Information Technologywith Legal Pedagogy

BY KATHLEEN M. SULLIVAN

UMMER MAY BE A QUIET TIME across the rest of campus, but here at the Law School, things are humming-and drilling and sawing and hammering-as con­ struction crews undertake the first major renovation in the history ofthe "new" law school. Built in 1975 as a classic example ofthe architectural style known as "brutal­ ism," our buildings have remained physically unaltered ever since. Next fall, the EI.R. Classroom Building will leapfrog over the last quarter ofthe twentieth century directly into the twenty-first, with each ofits 16 classrooms gutted and fully renovated. Our newly modernized classrooms will free our faculty to teach not only with markers and whiteboards, but also with Internet access, digital projection, and state-of-the-art au­ diovisual technology. New power, lighting and ergonomic seatingwill enable our students to work comfortably on the laptop computers they now nearly all bring to class. And the opportunity for new forms ofinteractive and collaborative learning will be unlimited. This transformation ofour classrooms, made possible bythe generosity ofour alumni and friends in our last capital campaign, symbolizes Stanford's distinctive approach to legal ed­ ucation. On the one hand, we are frugal, practical, and more focused on our ideas and our human capital than our physical infrastructure; we reallywore those class­ rooms out before deciding to rebuild them. By waiting, we avoided many waste­ ful errors made bylaw schools who renovated before we did; for example, in all class­ rooms but one, we will deliver Internet access by high-speed wireless connections rather than by already obsolete wire. On the otherhand, we aim to be the most forward-looking oflaw schools, prepar­ ing our students for the law practice, business environment, and public policy challenges ofthe future. The world our students will workin fifteen or twenty-five years from now will be marked by exponential changes that we think it is our job to anticipate and prepare for. In that future world, legal knowledge will be enhanced by a vast universe ofdigital resources accessible by wireless devices from anywhere, not limited to books and reporters standing on library shelves. In that future world, instantaneous communication amongoffices, firms, markets, and court­ rooms around the globe will require new sophistication and flexibility in our professional relation­ ships. And in that future world, the need for new approaches to problem-solving will place a pre­ mium on the ability to collaborate, negotiate, and work productively in groups. Our new classrooms will enable us to bring the excellent legal education we already offer into

2 SUMMER 2001 line with that new world. They will be beautiful and These are issues that Professors John Barton, Paul pleasing, to be sure, but their reason for being will be func­ Goldstein, Lawrence Lessig, and MargaretJane Radin, tion, not form. Theywill enable our faculty to speak the our faculty's copyright and cyberspace experts, regular­ legal language ofour students. ly explore in their teaching and scholarship, and that Ourstudents already do most oftheir research on line. many of our high-tech alumni like Alex Alben '84 of Our students already gain wireless access to Westlaw RealNetworks face daily in their practices and busines­ over their Palm Pilots because those two companies ses. Nextyear, ourstudents will have the chance to work chose Stanford Law School as the site to test exciting le­ with our faculty to influence these policy questions directly gal applications for the future. through clinical work at our newly launched Center for And our students already take their studies far beyond Internet and Society under the direction of Lecturer the limits ofSocratic real time, e-mailing their professors Jennifer Granick. any time ofday or night with thoughtful questions about Ourfaculty also contribute impressively to policy for­ the issues covered in class. mation in a host ofother high-tech areas, from the dig­ Our new classrooms will facilitate new forms ofcur- ital divide at home addressed by a major conference at the ricular creativity that take advantage ofsuch digital tools. Law School that Professor Radin helped organize last I hope you will visit them at Alumni December, to the digital divide Weekend this October. And they Theworld our students will work abroad that Professor Barton will will pave the way for other physi­ address over the next year as a cal renovations that will be nec- in fifteen ortwenty-fiveyears from member ofthe United Kingdom's essary in the next several years as prestigious six-member Commi­ we convert a law school of the nowwill be marked byexponen­ ssion on Intellectual Property 1970s to a model oflega! education Rights. for the new millennium. The 2000 presidential elec­ Ourclassrooms are only one tial changes thatwe think itis our tion-and the Supreme Court's setting, however, in which the Law novel decision that Florida's re­ School participates in shaping the job to anticipate and prepare for. countviolated the Constitution's legal future. As made clear by the equal protection clause-present fine articles in this issue on the Napster controversy and the very different public policy issue ofwhether feder­ the aftermath of Election 2000, Stanford Law School al election procedures should be left to existing state and faculty continue to make importantcontributions to pol­ local variation, or be governed instead by more uni­ icy debates over the mostvexing and important issues of form federal standards. Such issues have been grist for the day. students taught by our nationally televised voting rights The Napster controversy presents one aspect ofthe expert Professor Pamela Karlan, and for the many alum­ issue ofhow to balance copyright protection and free­ ni who attended our "Election 2000: Epilogue" forum dom ofspeech in the digital age. This interface has long or other events. been thought settled by the exceptions in copyright Our public debates about the election are a reminder law for fair and non-infringing uses that help preserve that the Law School is as committed to contributing to a public expressive domain. But does the speed oftrans­ the intersection oflaw and public policy as it is to the in­ mission over the Internet threaten copyright holders with tersection oflaw and business, and we are very fortunate new dangers of theft warranting new forms of legal to have faculty members who have gained national and protection? Or does the balance need to be struck the international recognition for doing so. I hope you will other way to make sure speech is not locked up in new agree that this is a vital part ofwhat being a great pro­ types of digital straitjackets? fessional school is all about. _

STANFORD LAWYER 3 ) Issue 60 I Vol. 35 I No. Letter~

EditOr MEL TAYLOR m [email protected] Miranda Revisited Warren Court declared Miranda to be

Communications Director t was sad to read that Utah Law the law. ANN DETHLEFSEN School Professor Paul Cassell is Mr. Cassell's concern for "victims' [email protected] Idissipating his Stanford Law School rights" overlooks the fact that before we education on a crusade against the start depriving a defendant ofhis consti­ Art Director/Designer Miranda decision and sadder still to tutional rights, let us make sure we have AMPARO DEL RIO amparodesign.com see Stanford Lawyer glorifying him for the right defendant and that his rights doing so. ("Keeping the Bad Guys are not lost to him because they are Copy Editor Caught," Fall 2000) merely "technical." One man's techni­ DEBORAH FIFE By requiring that police advise a sus­ cality is another man's substantive right.

Contributing Editors pect ofhis or her rights and respect a re­ Whether someone is a victim ofa KATHERINE RELF-CAiiiAS quest to consult a lawyer, the Miranda crime is not an excuse to take away from ERIKA WAYNE decision was intended to end the era of the accused, who is also a citizen, his LINLY WEBB rubber hoses and harsh lights. constitutional rights. "Tilting justice to­ Alumni News Coordinator If, as Cassell contends, the confes­ ward the aggrieved" should not be a de­ LINDA WILSON sions of26,000 violent felons, or any­ vice to deprive a defendant ofa fair trial. thing like that, are suppressed armually Jerome F. Downs '49 (AB '47) Class Correspondents 57 ESTIMABLE ALUMNI because offailure to comply with Miranda, he could make a worthwhile EditOrial Interns contribution to society by working CORRECTIONS MELANIE EGUSA lAB '03) to eliminate such persistent policy e apologize for an error that GLORIA HUANG lAB '01) misconduct. appeared in the Law School's Production Associates James R. Madison '59 W1999-2000 Annual Report of JOANNA MCCLEAN Giving. Inadvertently, an asterisk was MARY ANN RUNDELL rankly, it grieves me that the fellow placed next to the name ofThomas C.

STANFORD LAWYER trying to bust the Miranda rule came Rubin '88, indicating that he was (ISSN 0585-0576) Ffrom Stanford; obviously, he did not deceased. Happily, he is not. We are is published for alumni and friends have Stanley Morrison for Consti­ sorry for any inconvenience caused to of Stanford Law School. tutional Law. For my own two cents Mr. Rubin because of this oversight. worth, the states have all the power in We also would like to correct an Correspondence and information should be sent to criminal matters and the accused need error that appeared in the Fall 2000 is­ EdItor, Stanford Lawyer, all the rights they can get. sue of Stanford Lawyer. In our sidebar Stanford Law SChool, Mr. Cassell is obviously not sympa­ story on]ose Cardenas '77, we indicated Crown Quadrangle, 559 Nathan Abbott Way, thetic to that message. The victims are that a case involving Kaiser Steel in the Stanford, CA 94305-8610; victims and that fact carmot be undone. 1980s was handled pro bono. It was not...... a11lsw.a1umnl.pubsO As I saw so movingly done in Dead Man Furthermore, Mr. Cardenas was not forsythe.stanford.elIu Walking at the opera the other night, interviewed by the New York Times

Copyright 2001 by rhe Board killing the killer does not bring back the regarding pro bono hours. We regret of Trustees of Leland killed; I am not sure it really makes the these errors. Stanford Junior University. survivors feel any better. ReproductIon in whole or in part, Mortimer H. Herzstein '50 without permission of the publisher, is prohibited. f Paul Cassell thinks violations ofa Stazterd l47JlJ'-er Stanford Lln1Jyer is listed in: defendant's constitutional rights are Welcomes Letters from Readers Dialog's Legal Resource Index merely "technical matters," it is clear Submissions may be edited for length and and Current Law Index and LegalTrac I he never represented a client charged clarity. Send to Editor, Stanford Lawyer, (1980-94). Issues of the magazine since 1966 are available on microfiche with a crime. Stanford Law School, Crown Quadrangle, through William S. Hein & Co., Inc., That he is of the view that Miranda 559 Nathan Abbott Way, Stanford, CA ...- 1285 Main Street, rule should be abolished makes it equal­ 94305-8610, or bye-mail to: Buffalo, NY 14209-1987. ly clear that he never represented a Iaw.tllumni.pubS®ftrsythe.stanford.edu client charged with a crime before the Printed on recycled paper

4 SUMMER 2001 NewsBriefs

'" President Bush "'=> 0 his practice full time Stanford Law's overall reputa­ :I: when the crisis is over. tion for providing an outstand­ Picks Bolten '">- :I: Kahn represents ing curriculum delivered by an As Deputy ;0 :I:'" companies and individu­ absolutely first-rate faculty >- Chief of Staff als in complex environ­ committed both to research and ""0 OSHUA B. BOLTEN '80, ~ mental, antitrust, securi­ to practice," said Dean Sullivan. who served as policy ~ ties, lender liability, Jdirector during the ;; employment, and breach Sullivan Named to Bush-Cheney campaign, ofcontract cases, with an National Election was named by President emphasis in multiparty George W Bush as assis­ and class-action litigation. Commission tant to the president and At Stanford, Kahn athleen M. Sullivan, Dean deputy chief of staff for took a master's degree in and Richard E. Lang policy in December. political science, studied KProfessor ofLaw and During the presiden­ the presidency during Stanley Morrison Professor tial campaign, Bolten Joshua B. Bolten'SO law school, and complet­ of Law, has been named a vice worked closely with among others, former Stanford Provost ed course work for a doctorate chair of the National Com­ Condoleezza Rice, who is now the administration's National in political science. He served as mission on Federal Election Security Adviser. national chair ofthe Stanford Reform created in the wake of The new deputy chief worked for Goldman Sachs Law Fund from 1997 to 2000 the November 2000 election. International in London from 1994 to 1999. Under President and has been a member of the Former Presidents Gerald George H. W Bush, he served as general counsel at the Office Law School's Board ofVisitors Ford andJinuny Carter, who ofthe U.S. Trade Representative from 1989 to 1992, and then since the early '90s. Kahn was serve as honorary chairs, over­ as deputy assistant to the president in charge of legislative af­ also recently elected chair of the see the bipartisan commission. fairs during the last year ofthe administration. state Commission onJudicial Chairs are Lloyd Cutler, former Bolten served as international trade counsel at the Senate Performance, and he has pub­ White House counsel, and Finance Committee from 1985 to 1989. He also worked at the lished more than 20 articles on Robert Michel, former minority law firm ofO'Melveny & Myers and the legal office ofthe State a variety oflaw-related subjects. leader in the U. S. House of Department after graduating from Princeton University and With the state's energy Representatives. Stanford Law School. problem so rich in symbolism, The commissioners, who Kahn will have the opportunity are serving on a voluntary basis, his new post provides to add were chosen because they are California Governor supplies and skyrocketing costs, to his collection of political able to provide a wide range of Taps Kahn for State Davis and the legislature reor­ cartoons-one of the largest insights, from academia to Energy Post ganized the ISO to make it such private collections in the practical politics, that are need­ more responsive to California's country. ed to evaluate the growing an Francisco litigator needs while the state tries to number offederal election Michael A. Kahn '73 (AM pull out ofthe worst electricity U.S. News Ranks reform proposals. S'73) was appointed by and natural gas crisis in decades. SLS Second in Nation The commission is focus­ California Governor Gray Prior to his "being para­ ing on the future of federal Davis (AB '64) in chuted in" to lend .s. News & World Report, for elections, and not re-fighting February as board assistance, Kahn the second year, has named the Florida contest. Issues in­ chairman for the was already quite UStanford Law School as the clude: voting techniques and powerful state­ busy as senior part­ No.2 law school in the country. ballot design; the timing of sponsored Cali­ ner and head ofliti­ Yale was No.1 and Harvard federal elections and commu­ fornia Indepen­ gation at Folger No.3. nicating results; absentee and dent System Levin & Kahn LLP The rankings of 174 ac­ overseas military votes; con­ Operator in the in San Francisco. credited law schools, published testing and recounting; new midst ofthe Kahn, who consid­ annually, are based on a weight­ technology for voting; and new state's severe ers himself a "serial ed average ofthe 12 measures institutions, such as a national energy crisis. conscriptee" in the of quality established by the elections commission or In response to Michael A. Kahn '73 state's energy war, magazme. strengthened Office ofElec­ dwindling power IAM'731 will return to "Our position attests to tion Administration of the

STANFORD LAWYER 5 Federal Election Commission. plained, "to explore the issue of Distinguished Jurist Student Affairs at the Law Commissioners include how the technology and proce­ Cordell Named School from 1978 to 1992, has William Barr, Griffin Bell, dures ofelections can be re­ been named Vice Provost and William T Coleman, Jr., John formed to make them as fair Stanford Vice Provost Special Counselor to the Presi­ Danforth, vice chair Slade and equal as possible, while anta Clara County Supe­ dent for Campus Relations. Gorton, Hanna Holborn Gray, minimizing fraud." rior CourtJudge LaDoris "Almost 20 years ago, Colleen McAndrews, Daniel The work of the commis­ SHazzard Cordell '74, who LaDoris Cordell left her job at Patrick Moyillhan, Leon sion will be developed into a served as assistant Dean for Stanford to start her career as a Panetta, Deval Patrick, Diane September 2001 report that, ac­ Ravitch, Bill Richardson, and cording to Ford and Carter, John Seigenthaler. "will be ofreal use to the 107th "We're holding hearings at Congress and the Bush admin­ presidential libraries through­ istration as they move forward." out the country," Sullivan ex- (Please see page 22 for more on the aftermath ofthe November election.)

Thompson and Team Win NSF Grant arton H. Thompson, Jr., JD/MBA '76 (AB '72), BVice Dean and Robert E. Paradise Professor ofNatural Resources Law, is a member of the four-person Stanford team awarded $1 million as part of the National Science Founda­ tion's first round ofmajor funding to spur fundamental research and support the inno­ vative application ofinforma­ tion technology. The Stanford project vied with more than 1,400 proposals. Friedman Recognized Thompson teamed up with For Scholarly Influence Dean Sullivan delivered the Stanford civil and environmen­ inaugural Justice Ruth Bader tal engineering and computer AWRENCE M. FRIEDMAN, the Marion Rice Kirk­ Ginsburg Distinguished Lecture science faculty to develop a wood Professor ofLaw, was awarded the Fellows ofthe on Women and the Law at the distributed information man­ American Bar Foundation award for outstanding research Association of the Bar of the agement framework, named in law and government at the organization's annual meet­ City of New York on November REGNET, that will make ing in February. 15. Praising Ginsburg's governmental regulations avail­ LIn a biographical sketch ofFriedman prepared for the event, "pioneering career" as a able online. Rayman L. Soloman, dean ofthe Rutgers University School of women's rights litigator and REGNET, as an informa­ Law-Camden, wrote, "[Friedman] is internationally recognized comparing the American tion technology infrastructure, as the preeminent socio-Iegal scholar ofhis generation. Ina schol­ constitutional law of sex will initially work on regula­ arly career that has spanned over 40 years, and so far has pro­ equality with more specific tions related to hazardous duced over 20 monographs and 200 articles, Professor Friedman and detailed provisions in waste management by gathering has deepened our understanding of the ways in which law and other nations' constitutions, repositories for regulatory social, political, economic, and cultural forces have interacted in Sullivan called Ginsburg's information and then develop­ American history His books and articles have shaped a gen- successes under the equal ing tools to locate, merge, eration ofscholars " protection clause "a little like compare, and analyze informa­ Established in 1955, the Fellows of the American Bar cooking when there's nothing tion, an extremely complicated Foundation encourages and supports research that focuses on in the kitchen." task until now. the improvement of the legal system.

6 SUMMER 2001 work at Pillsbury was Stanford­ served as counsel related. Zumwalt is also presi­ for 28 years, was dent of the Santa Clara County named deputy Bar Association. general counsel, Zumwalt named Thomas emeritus. Hud­ LaDoris Cordell '74 Fenner '76 CAB '73) deputy nall, who was judge," said University Presi­ general counsel for the Uni­ honored with the dentJohn Hennessy, "and in versity. Fenner, who has served KennethM. the ensuing time, she has not as counsel for the University Cuthbertson Award for excep­ panel to evaluate Zumwalt's only distinguished herself on for 16 years, was most recently tional service to the University, work and qualifications for the the bench, but she has also senior university counsel. retired in January. permanent position. She said, become a noted community Michael Hudnall '68, who Dean Sullivan served on the "Zumwalt offers a rare combi- leader and impassioned advo­ cate for social justice." In 1982, Cordell became the Public Forum Highlights Gaps first African-American female judge on the bench in Northern Among Users of Technology California. She served on the N DECEMBER 9, STANFORD LAW SCHOOL hosted a public forum that ex­ Municipal Court ofSanta Clara amined the disparate use oftechnology throughout the state. County until 1988, when she "Bridging the Digital Divide" was part ofthe Hitachi California Public Affairs Forum won a countywide election, mak­ series. Cosponsors included Hitachi; the Stanford Program in Law, Science & Technology; ing her the first African­ the California Council on Science and Technology; and the Stanford Institute for Economic American Superior Court judge Policy Research. in Santa Clara County. Thought-provoking issues discussed by some of The new Vice Provost re­ the state's leading technology, legal, and educa­ ports to the President and over­ tion experts included what standards sees five offices that focus on should be applied to Internet ac­ quality of life and equity issues. cess; what policies will direct­ In addition to her new du­ ly influence the distribution of ties, Cordell hopes to develop computers to elementary and teach a course on judging schools; and whether combined that will include hands-on telecommunications and Internet training for second- and third­ service providers will be less ex­ year Stanford law students. pensive than individual providers for low-income groups. Zumwalt Named Dean Kathleen Sullivan and Stanford Counsel, MargaretJane Radin, Wm. Benjamin Scott and Luna M. Scott Professor of Fenner Advanced Law and Co-Director ofthe Stanford to Deputy Post Program in Law, Science & Tech­ ding to Stanford Law nology, were co-chairs and modera­ ~chool alumni:s presence tors of the conference, along with /t top Umverslty ranks, Professor Roger Noll of Stanford's PresidentJohn Hennessy has Department ofEconomics. named Debra L. Zumwalt '79 Among those presenting at the University General Counsel. event were alumnus Larry Irving '79, former Assistant Secretary, U.S. Department ofCommerce, Zumwalt, who has served who delivered the keynote speech, and Stanford Law Professor Lawrence Lessig, who examined as Acting General Counsel the relationship ofequal access to democracy. Education, universal service, and equal access were since February 2000, was discussed during a town hall meeting moderated by Sullivan. Senior University counsel from One ofthe broad conclusions reached at the event was that bridging the gap would require the ; .~.

1987 to 1993. Prior to her new coordinated efforts oftechnology innovators, government regulators, communications providers, '~•• : I- post, she was a partner at and skilled teachers. Policy recommendations from the forum are included in CCST's Critical Path i- Pillsbury Winthrop LLP and Analysis ofCalifornia's Educational System which was published in May. managing partner ofits Silicon For more information visit: http://ccst.uer.edu/cpa/bdd/bddhome.html Valley office. Much ofher

STANFORD LAWYER 7 nation ofstrengths-as sea­ soned litigator, knowledgeable Cyber Expert counselor, and energetic and Lessig Founds stalwart defender of Stanford's interests across a wide range of Center for Internet matters over the last decade. and Society We could not have found a per­ ENOW ED Internet son better suited to serve as rights expert Professor Stanford's chief lawyer than the Lawrence Lessig has highly respected, incredibly founded the Center for hard-working person who was Internet and Society at already serving in that role on Stanford Law School to pro­ an interim basis." vide legal representation to individuals, explore the relationship between Internet Nosanchuk Steps Up architecture and constitutional and pub­ To National Chair lic policy values, and help protect the intellectual marketplace ofideas exist­ athew s. Nosanchuk '90 ing in cyberspace. (AB '87) has been named "The general focus of the cen­ MStanford Law School's ter is to help students analyze the first National Law Society developing relationships between the Chair. architecture of cyberspace, civil liberties, In his new role, Nosanchuk and innovation," Lessig said. is responsible for increasing Stanford Law School focuses on the immediate and long-term legal issues raised committee member participa­ by new technologies and their impact on society. tion in planning and facilitating The center has established a clinic led by lecturer and experienced cyberspace litigatorJennifer w > <: law society activities; assisting Granick as director, through which Stanford Law students can work on cutting-edge legal issues o regional chairs in developing in cyberspace. varied program offerings that (For more on the center, please see the sidebar on page 18.) appeal to a broad constituency; and working with chairs to de­ velop strategies to increase at­ New York, San Diego, San since 1999. Levin is responsible SLS Associate Dean tendance from a wide cross-sec­ Francisco, Seattle, Silicon for recruiting individual re­ Named Assistant tion ofalumni. He had been the Valley, and Washington, D.C. union chairs; developing strate­ co-chair ofthe Stanford Law Ifyou are interested in commu­ gies for Alunmi Weekend pro­ To the President Society ofWashington, D.C. nicating with fellow alunmi in gramming; assisting in ulie Lythcott-Haims (AB Nonsanchuk and the Law your region, please subscribe to recruiting notable speakers; and '89), former Associate Dean School have developed listservs a regionallistserv by visiting maintaining ongoing commu­ Jfor Student Affairs at the for the major regional alumni http://lawtalk.stanford.edu/-alum nications with alumni in the de­ Law School, has been named areas: Chicago, Los Angeles, ni]elations. velopment ofAlumni Weekend. Assistant to Stanford President In this national He was the very successful gift John Hennessy. Prior to serv­ position, Nosan­ co-chair for the Class of 1973's ing at the Law School, chuk joinsJohn 25th reunion. His class was the Lythcott-Haims practiced in­ Levin '73 (AM first to raise more than $2 mil­ tellectual property law in the '70), who has lion to honor its reunion. Levin Bay Area. She received her law served as National also serves on the Stanford degree from Harvard in 1994. Reunion Chair Board ofTrustees. "Her devotion to Stanford and the local community, pro­ MARK YOUR CALENDAR fessional training as a lawyer, Alumni Weekend 2001 is October 11-14. Watch for the and a truly collegial approach to brochure describing the exciting programs and activities to work will make her a pleasure arrive in the mail in August. Register using the printed ma­ to work with," Hennessy said. terials or the secure online registration form at http://www.law. stanford.edu/alumni/alumni-weekend/registration.This is a Cathy Glaze '85, who served weekend not to be missed! as Acting Associate Dean for John Levin '73 and Mathew Nosanchuk '90 lAB '871 Student Affairs from September

8 SUMMER 2001 2000 through May 2001, has Ten SLSAlumni, Students Travel to The Hague now been named for the post. Faculty Make the For Global Warming Summit Top 100 Lawyers List International Prize ANJAY RANCHOD '0 I AND LOUISE WARREN '03 Honors Renowned alifornia Law Business traveled to the Netherlands over last thanksgiving with fel­ named 10 Stanford Law low Stanford Law students GradyJackson '02, Gwen Parker Chinese Scholar Calumni and faculty mem­ '03, Tauna Szymanski '03, and Aimee Christensen '01 to ast October, one of China's bers to its list of the top 100 participate in international discussions and negotiations most highly respected legal most influential lawyers in involving global warming. Lscholars and jurists, Ni California in October. The SLS group, whose trip to The Hague was made possible Zhengyu '29, was presented The survey ranking, by Greenpeace USA, joined with 200 other American college and with the inaugural Ni Prize in conducted for the third year, graduate student environmental leaders to express their views on the International and Chinese Law, was based on 850 personal CriSIS. established in his honor at interviews conducted with law The objective of the summit, which drew 10,000 government Stanford Law School. firms, law schools, and public officials, environmentalists; industry lobbyists, and media represen­ In her welcoming remarks, interest organizations through­ tatives, was to write mles to implement the 1997 Kyoto protocol, Dean Kathleen Sullivan recog­ out the state. an agreement under which the nized Professor i as "one of amed to the list were US. and other indusu'ialized the most distinguished law grad­ Warren M. Christopher '49; nations agreed to cut emissions uates in the School's history." Donald S. Chisum '68 (AB '66); of carbon dioxide and other An internationally recog­ Mary B. Cranston '75 (AB '70); heat-trapping gasses below nized scholar, teacher, jurist and Gordon K. Davidson '74 (BS 1990 levels. public servant, Professor Ni has '70, MS '71); Ronald M. "While European coun­ served as a World Court judge; George '64; Joseph A. Grund­ tries worked to strengthen the legal counsel to China's Minis­ fest '78, W A. Franke Professor treaty, the United States, try ofForeign Affairs; arbitrator ofLaw and Business; Craig Japan, Saudi Arabia and oth- Grady Jackson '02, Sanjay Ranchod to China's Maritime and Fo­ WJohnson '74;]. "lerence er countries pushed for loop- '01, and Louise Warren '03. reign Trade Arbitration Com­ O'Malley '75;John E. Place holes to water down the Kyoto missions; and director ofthe '85; and Dean Sullivan. Protocol," according to Ranchod and Warren. Ranchod is nation­ China Society ofInternational al chair ofthe Sierra Club's Global Warming and Energy Committee. Law. He also served in key Three Venture He said "the American negotiating position was strongly influenced United Nations positions, in­ Investor Alumni by the oil and coal industries and their political allies who want to cluding the International Law delay transitioning to cleaner energy sources." Commission, and as legal coun­ Make 'Midas List' For more information, visit http://els.stanford.edu; http://unfccc.int; sel to numerous Chinese diplo­ ntrepreneurs who steer http://iisd.ca/climate/cop6; and http://sierraclub.org/globalwarming/ matic missions to the UN. clear of tech wrecks and In his remarks, Professor Eother market implosions lawyers who do the patent pellate courts ended in US. Ni said he hoped that the prize have what venture investors work, and investment bankers District Court in San Jose in "would serve the purpose of call the "Midas Touch." who promote the product." January with a unanimous court enabling lawyers to be better Three SLS alumni who jury award of$139 million, and equipped for rendering legal have it were named to Forbes Ruby Slaps Government services beyond national magazine's "Midas List of 100" Supplier in $80M boundaries." for last year. Included were James C. Gaither '64, managing Whistle·Blower Case director ofSutter Hill Ventures; t was a big-time slap down Gordon K. Davidson '74, chair for heavyweight litigator and of Fenwick & West; and Craig Ione-time wrestler Allen Johnson '74, chairman of Ruby '68, taking on the US. Venture LawGroup. Government and one ofits top According to Forbes, "Midas defense manufacturers, FMC members include entrepreneurs Corporation. Ruby won. and angel investors who nurture After 14 years, 100 motions, the ideas, venture capitalists and 1,000 boxes ofsupporting who fund them, technical advi­ material, the protracted battJe NiZhengyu'29 sors who judge the technology, fought in federal trial and ap- Allen Ruby '68

STANFORD LAWYER 9 an $80-million post-verdict Solicitor General, delivered the Stanford Sweep ceived a National Association settlement. keynote address. His com­ Fellowships for Public Interest Law award Ruby's team included for­ ments were followed by a series and will work with California mer classmate J. David Black of panels featuring a Who's ach year post-graduate Indian Legal Services, Oak­ '68 ofWhite & Case, Phillip G. Who of the key academics and fellowships are awarded to land, Calif., to ensure that Svalya ofCupertino, and Roy practioners in the field, includ­ Estudents who have chosen Native American Indians gain Bartlett. ing former Acting Solicitors careers in the public interest full access to social, education­ The government false General Walt Dellinger and sector. This year a record num­ al, and economic services. claims whistle-blower case, Barbara Underwood, Ninth ber of Stanford law students Alexander Thier '01 re­ United States ofAmerica ex rei CircuitJudge William won these coveted national ceived a Skaaden Fellowship Henry Boisvert v. FMC Corp., Fletcher, former Boalt Hall awards, including: Foundation award to work with began in 1986 with a lawsuit DeanJesse Choper, former Angela Chabot '01, who the Silicon Valley Affordable filed by Boisvert, a fonner em­ Ohio Solicitor General]effrey received the Natural Resources Housing Project at the East ployee ofFMC, manufacturer Sutton, as well as Stanford Defense Council environmen­ Palo Alto Community Law ofthe u.s. Army's Bradley faculty member and visiting tal fellowship cosponsored by Project to mitigate the regional Fighting Vehicle. faculty member Akhil Amar the Altshuler, Berzon, Nuss­ housing crisis and advocate for The all-terrain vehicle was ofYale and Roderick Wills, Jr., baum, Rubin & Demain affordable housing in Silicon designed to carry troops and ofMichigan. public interest law firm in San Valley communities. equipment through water and Participants' articles will Francisco. She will be working Jennifer Wedel '01 re­ on land, but it leaked, according appear in the Stanftrd Law with physicians and scientists ceived the Ruth Chance Law to Boisvert, an FMC test ana­ Review, Vol.53 Issue 5. Visit the against polluters and toxic Fellowship sponsored by lyst, who continued to report Law Review's website at waste producers. Equal Rights Advocates in San the deficiencies. Ruby proved http://www.law. Helen Chen '01 received Francisco, where she will be Boisvert was wrongfully termi­ stanftrd. edu/lawreview the National Association for working. She will provide litiga­ nated by FMC after he filed suit Public Interest Law award tion support for staff attorneys under the False Claims Act. SLSAmongTop sponsored by the Asian Law in class-action and individual­ Ruby, a partner in the San Schools In LRAP Caucus in San Francisco. She representation cases; participate Jose firm of Ruby & Schofield, will be working to promote the in a full range ofcommunity has practiced criminal and civil Spending health and safety ofAsian immi­ outreach programs, including law since graduating from report by the National grant workers, particularly in offering training sessions at em­ Stanford. He says he learned a Association for Public sweatshop work environments. ployment centers on workers' lot about law between high AInterest Law has found Heba Nimr '01 received rights; and supervise the staff of school and law school while on that Stanford is one of only the Soros Post-Graduate Justice the ERA's nationwide advice the professional wrestling cir­ six law schools that make up Fellowship from the Center for and counseling hot line. cuit in the Midwest, following 70 percent ofloan repayment Crime, Communities and in the footsteps ofhis father. "I assistance program funding Culture of the Open Society Campbell Returns to learned how to get beat and nationwide. Institute. She will be working Teaching After Congress not whine about it, and that LRAPs, such as the Miles with INS WatchlLa Raza was the most valuable lesson I & Nancy Rubin Loan Forgive­ Centro Legal in San Francisco om Campbell, who last fall could have learned as a trial ness Program at Stanford Law to organize and mobilize Bay attempted unsuccessfully to lawyer." School, are credited with en­ Area immigrants for the protec­ Yunseat incumbent Senator abling more graduates to enter tion oftheir civil rights, includ­ Dianne Feinstein (AB '55) Law Review Event the lower paying public service ing immigration proceedings (D-Calif.), has returned to the Revisits State area of law, despite substantial involving detention because of Farm and his post full-time as educational debt incurred by criminal histories. a tenured member ofthe Sovereign Immunity many law students. Jeffrey Snipes '01 received Stanford Law School faculty. two-day symposium, pre­ The report listed Stanford a Rockefeller Brothers Fund In his first semester back in sented by the Stanford Law along with Yale, NYU, Har­ award and will work at the Vera the classroom, the former AReview in February, ad­ vard, Columbia, and George­ Institute ofJustice in New York, member of Congress is teach­ dressed the Supreme Court's town. According to the report, under general counsel and spe­ ing a course on antitrust law changing understanding of although the number ofloan cial cOlillsel on legal programs and conducting a seminar on state power and the future im­ assistance programs is down to address legal, business, and the separation of powers. In plications ofrecent, key feder­ slightly since 1994, the payout organizational issues facing the fall, he will also teach ad­ alism decisions. has risen from $3 million to members ofVera. ministrative law and interna­ Seth Waxman, former U.S. $7.6 million in 1999. Sunshine Sykes '01 re- tional jurisdictions.

10 SUMMER 2001 ing a teacher again," Campbell instead, registered additional $510,000, while the unidenti­ said. "On balance, it's an over­ names containing the name fied Mole was sabotaging their whelmingly happy moment. I'm "Stanford." efforts. at a job I love." Gillooly ultimately agreed The arch-saboteur, whose to transfer stanfordlawyer.com, identity was kept secret even Suit Quashes Use of stanfordlawyer.net, and stanford from her fiancee, was Kathryn stanfordlawyer.com lawyer.org to the University. Price '98, who successfully siphoned money from the pot, a Jolla attorney Craig 'The Mole' is Alumna, monkey-wrenched the tests, Gillooly-calling himself Now Writing Novel and kept her identity hidden. La "big fan" of Stanford­ Price didn't win first prize. gave up his claim to the ust when you thought it was She did receive a flat fee for be­ stanfordlawyer.com domain safe to go back into your ing The Mole, which turned out Professor Tom Campbell name after being sued by Jliving room, reality TV has to be the perfect assignment. Stanford last year for "eyber­ opened a new window on life Price is now writing a In campaigning against squatting" and trademark in the Outback, on an island of screenplay based on a novel she Feinstein, Campbell was infringement. temptation, and in boot camp wrote while at SLS. said to be at his best before The solo practitioner, who sharing quality time with drill Incidentally, the last time students, with whom he is not an alumnus, used the site sergeants. we reported on Curtis Kin '96 discussed the issues of the day, to direct visitors to another site In one such show, The in Stanford Lawyer, he was in the values ofpublic service, that offered legal consultation Mole, a series ofnine episodes, contention for $500,000 on the and the importance of being services. Gillooly initially re­ put five men and five women TV show Big Brother. He involved in government. fused to transfer the domain through mental and physical didn't win the top prize, but "I'm very happy about be- name last year when asked, and, challenges to win a jackpot of still got $50,000 for living with 10 strangers. Better or worse than boot camp? Students Launch Online Journal Designed to Push Boundaries TA TFORD AGORA: An Online Journal ofLegal Perspectives (formerly the Stanford Journal ofLegal Studies) recently became the second Stanford Law journal available solely on the Internet. While other journals distribute their text via tradition­ al channels, Agora and the Stanford Technology Law Review have turned to the Web to publish schol­ arlywork. According to Agora's editorial board, the name change "not only reflects the new format evolu­ tion but also the publication's recommitment to pushing the boundaries oflegal education." Agora's first issue included "Socratic Perspectives on American Constitutionalism"; "Subversive Speech in the Trial ofSocrates and in the Redistricting Cases"; "Socrates the Cos­ mopolitan"; and "The Quest for the Historical Socrates," among other articles. The Web-based journal is published at http://law.stanford.edu/agora/ Stanford Technology Law Review is described by its editorial board as "an innovative forum for intel­ lectual discourse on critical issues at the intersection of law, science, technology, and public policy." It was first published online in spring 1997 and is available at

http://stlr.stanford.edu/STLRlcore-page/index.htm DAVE BLACK

STANFORD LAWYER U A FOND FAREWELL William Hewlett, SEC Chair Levitt Law School Friend Addresses hile most Stanford grad­ Market Issues uates have some idea of n his last major public addresse as out­ Wthe tremendous impact going U.S. Securities and Exchange technology pioneer William ICommission Chairman lastJanuary, the R. Hewlett (AB '34, Engr. '39) widely respected Arthur Levitt provided had on Stanford University faculty, studel}ts, alumni, and neighbors of over the course ofhis Ii fetime Stanford with a broad perspective on to­ (see Stanford magazine, day's rapidly changing securities market in March/April 2001 issue), far a public address at the Law School on fewer are aware ofhis gen­ January 8. erosity toward Stanford Law "Congress established the framework School. for a national market system to connect Hewlett, who died on the growing number of different markets John Freidenrich '63(AB '59), Congresswoman Anna Eshoo January 12,2001, at age 87, twenty-five years ago," Levitt said. "This (D. 14th District, Calif.) Chainnan Arthur Levitt and the William and Flora framework, set forth in the 1975 amendments, has served our markets well." Hewlett Foundation made pos­ The chairman explained the results ofa recent SEC study that found that investors who placed sible the establishment ofthe orders for stocks at prices better than the prevailing market price (limit orders) were significantly less Judge John w: Ford Profes­ , likely to have their orders executed on Nasdaq than they were on the New York Stock Exchange. sorship in Dispute Resolution "It is essential to keep in mind the very significant strides Nasdaq has made in recent years," by matching the gift ofthe late Levitt said. "At the same time, price competition must remain at the core oftheir focus." Thomas w: Ford, a Menlo The chairman, whose talk generated lively debate, closed by saying, "Prudence is critical as we Park real estate developer. consider changes to a market system that must never cease to function ... for the benefit ofAmerica's Ford established the investors-not for anyone institution or interest." professorship to support Chairman Levitt's address can be viewed on the Web at http://law.stanford.edulcoursesllevitt.shtml teaching and research in alter­ native methods of dispute res­ olution and honor his father, Hewlett Foundation have been utive aircraft. Wives of SLS Faculty the late Honorable John w: important supporters ofthe Governor Ronald Reagan Remembered Ford, who presided for more Law School and its teaching named Volk Corporations than 20 years in the Court of mission. We appreciate all that Commissioner in 1967. uth K. Franklin, curator at Common Pleas in Youngs­ they have done for the School, Among other initiatives, he Stanford's Cantor Center town, Ohio. Hewlett support­ and particularly in promoting coauthored a revised Cali­ Rfor Visual Arts and the ed the professorship based on our outstanding curriculum in fornia Corporate Securities wife ofMarc A. Franklin, the his belief that learning to solve dispute resolution, mediation Act that simplified procedures Frederick 1. Richman disputes without litigation was and negotiation." for corporations to issue stocks Professor of Law, Emeritus, a sound business strategy. in California and also exempt­ died December 18 in San In assisting in the estab­ Volk Revised ed securities listed on the New Francisco of complications lishment ofthe professorship, Corporate Securities York Stock Exchange from from pneumonia. She was 64. Hewlett and the foundation state registration. Mrs. Franklin was curator each gave $500,000 gifts obert H. Volk '58 (AB Volk resigned his position ofthe arts ofAfrica, Oceania, to match Ford's pledge of '54), a former state com­ in January 1968 when the new and the Americas. She and her $1 million. The chair-the Rmissioner of corporations securities law and accompany­ husband often traveled to first endowed at the School who worked to bring corpora­ ing regulations went into ef­ Africa, the Pacific Islands, in the area ofdispute reso­ tions to California, died on fect, saying that he had reached Indonesia, and the Americas lution-is currently held by January 2 in Los Angeles at his goals. to study the role ofart in those Deborah R. Hensler. age 68. The attorney and busi­ He is survived by his wife, cultures. Reflecting on Hewlett's nessman led Unionamerica, Barbara; children Christopher, Between 1962 and 1966, support ofthe School, Dean the holding company of William, Lauren, and Eliza­ Mrs. Franklin worked with Kathleen Sullivan said, Union Bank, and also man­ beth Volk Lawler; and 10 Carl Spaeth, former dean of "William Hewlett and the aged airport facilities for exec- grandchildren. the Law School, on the

12 SUMMER 2001 University's Committee on irginia Merle Thompson reer took them first to the New Editor International Studies. Mrs. Williams, the wife of University ofTexas, then to el Taylor is the new edi­ Franklin, began volunteering VHoward R. Williams, Columbia, where he held the tor of Stanford Lawyer, in the late 1980s at what was Robert E. Paradise Professor Dwight Professorship, and Mreplacing Kevin Cool, then the Stanford Museum of ofNatural Resourses Law, eventually to Stanford in 1963. who was named editor of Art and is now the Cantor Emeritus, died on December Professor Williams, an expert Stanford magazine last fall. Center. 15 after a lengthy illness. in oil and gas law, became the Taylor holds degrees in She is survived by her She was 82. first holder ofthe Stella W and journalism and communica­ husband and children, Mrs. Williams was born in Ira S. Lillick Professorship in tions from Duquesne Uni­ Jonathan of Seattle and Alison Providence, R.I. She graduated Law in 1968. versity and the University of ofCambridge, Mass.; sister from Barnard College in 1941 Mrs. Williams is survived Pittsburgh. He has a back­ Diana Korzewnik ofNewton and married Howard Williams by her husband, son Frederick ground in corporate communi­ Highlands, Mass.; and two in 1942. While he served in the ofSan Francisco, and grand­ cations, public relations, and grandchildren. anned services, Mrs. Williams daughter Elisha Williams advertising. _ was employed as a librarian in Alvarado ofSan Francisco. argaret McDonough, Louisville, Ky. His teaching ca- the wife offonner Acting MLaw School DeanJohn R. McDonough, died February 7 at her Cupertino home at age 85. Value of Mrs. McDonough emi­ Ecosystem grated with her family from Services the Netherlands to the United States in 1930. The Lauded McDonoughs were married in GROUP OF 30 1944 and settled at Stanford, scientists, lawyers, where her husband joined the conservationists, Law School faculty. economists and pol­ Mrs. McDonough, an icy- makers met at accomplished oil painter, was Stanford last fall to active in the First Congre­ discuss ways ofpub- gational Church ofPalo Alto, licizing the importance ofecosys­ as a Red Cross volunteer, and tem services in an effort to pro­ as a member ofthe Stanford tect the ecosystem itself. Women's Club. Ecosystem services are nat­ She is survived by her hus­ ural systems that purify air and band; daughterJana ofDeer­ water, detoxify waste, renew soil, field, ill.; son John ofMountain regulate climate, prevent floods, View; and sister Geraldine Block control pests, and pollinate plants. Examples are watersheds, soil fonnation, gas regulation, nutri­ w «> ofLevittown, N.Y. ent cycling, and erosion control. o John McDonough served Among the conference hosts was Vice Dean and Robert E. Paradise Professor of Natural as Assistant Professor ofLaw Resources Law Professor Barton H. ThompsonJr.,JD/MBA '76 (AB '72). In explaining the im­ from 1946 to 1949, Professor portance of ecosystem services, Thompson focused on watersheds and showed that the clear de­ ofLaw from 1952 to 1970 and mand for improving water quality has resulted in a call for protecting watersheds throughout the Acting Dean from 1962 to country. 1964. He taught courses in the Thompson explained that the New York City Water Department's decision to allocate $1.5 bil­ conflict oflaws and trade regu­ lion to preserve the Catskill and Delaware watershed, and not spend $6 billion to construct a new lation and helped found the water treatment system, was a successful way ofproviding New Yorkers with a better understanding Stanford Law Review in 1948. ofthe importance ofwatershed conservation, which includes the protection ofa wildlife habitat. He served as assistant and asso­ Suggesting that we could generalize from New York City's experience, Thompson pointed out ciate deputy attorney general that Salt Lake City, Seattle, and Portland, Maine, have already begun investing in watershed pro­ ofthe U.S. Department of tection projects. Justice from 1967 to 1969. Thompson contributed to a special issue ofthe Stanford Environmental Law Journal published in June that presents results ofthe workshop. Visit http://elj.stanford.edu

STANFORD LAWYE13 13 Copyright, Fair Use, and STUDENTS KNOW NAPSTER ALL TOO WELL. Thirteen-year-olds are downloading Intellectual Property 1.5GB worth of MP3 files in two days-their favorite music and everyone else's in the uni­ verse-for free. Cyber friends call it swapping; music companies call it copyright infringement. Collide in Cyberspace For music lovers it's been great, almost too good to be true. But times are changing, and in a big way. The outcome of the Napster lawsuit is bound to affect other forms of digital media in the entertainment, education, and information sectors ofthe economy. To protect copyright holders, in 1998 Congress lengthened copyright protection, ini­ tially 14 years, to 70 years from the death ofthe author for individual works and 95 years for corporate works. New Wave critics say that only by loosening current copyright laws will we make sure that the marketplace receives a steady flow ofcreative work, and not just from artists promoted by their respective industries. Their argument: Current industrial-age copyright law does not By Doug Fine translate into the digital age (read "cyberspace"). Which brings us to Napster. Illustration by Ron Chan P2P Sets Off the Alarm en Napster founder Shawn Fanning revolutionized the recording industry in 1998 by allowing computer users worldwide to share MP3 files directly from their hard W drives (called "peer-to-peer" or "P2P" networking technology), he set offa chain *

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14 SUMMER 2001 ­ '"=> u '"

reaction. Thanks to a market saturation rate several times faster than that ofthe VCR, almost all players agree that Napster is help­ ing propel worldwide industry and society from the factory age into the digital age faster than you can say "download." Stanford legal experts are on top of (and in some cases, in front of) the changes caused by the revolution, which has busi­ ness and legal ramifications far beyond the movement ofjust sound files. With millions ofNapster users pile-driving the marketplace into new sales and distribution models whether current rights holders are ready or not, the once stable arena of copyright itself is becoming a hot and "AT THE BEGINNING OF THE cutting edge field. TWENTIETH CENTURY PEOPLE One week music lovers had to fork over $16.95 at the chain record store for a CD of ASKED WHETHER A PIANOLA the latest hits (even if they only liked one or two of the songs); the next they could down­ load pretty much any song ever recorded. So the question became: "Are conventional in­ ROLL INFRINGED COPYRIGHT. terpretations ofcopyright dead in the digital age?" THE SUPREME COURT One knowledgeable observer doesn't think so. "Napster is one ofseveral instances where ADDRESSED THIS, AS IT HAS a new technology has intersected copyright," explains intellectual property expert Paul OTHER TECHNOLOGICAL Goldstein, Stella W and Ira S. Lillick Professor ofLaw at Stanford and author of the ac­ claimed 1995 book Copyright's Highway: Frcmz Gutenberg to the CelestialJukebox. "At the be­ INNOVATIONS." ginning of the twentieth century people asked whether a pianola roll infringed copyright. -PROFESSOR PAUL GOLDSTEIN The Supreme Court addressed this, as it has other technological innovations. But the courts are only half the story. As it has before, Congress will become involved and ulti­ mately the conflict will be resolved through licensing and other business solutions in the marketplace." Stanford Law Professor Lawrence Lessig, who founded the * Law School's Center for Internet and Society in]anuary (see side­ bar), concurs. He believes that in the case of Internet-based ------~ ..

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STANFORD LAWYER 15 SLS Establishes Center for Internet and Society, sound recordings, whatever the result ofNapster's Will Provide Students with Cyberlaw Case Experience litigation, "Congress can issue compulsory licens­ ing regimes, so ilmovation and distribution aren't the exclusive domain ofthe record companies." In PROFESSOR LAWRENCE LESSIG has been watching the digital world take cases like apster, "the courts right now are al­ shape, and he wants to make sure that civil liberties and free speech don't get lowing current copyright holders to leverage their trampled as it develops. InJanuary, he founded the Center for Internet and power in cyberspace. When cable stations re­ Society at Stanford to raise the public's awareness ofrights issues raised with broadcast content, they use compulsory licensing. the expansion of technology. In addition to litigating cases and directly rep­ It's a very sensible system Congress has established. resenting clients, the center's staffwill lobby and write amicus briefs. A similar system needs to be established [for digi­ "Studentswill workwithme and the clinical directorofthe center,Jellllifer tal information dissemination technologies]." Granick, in providing clients with representation, which will help them de­ Lessig and Goldstein, who were interviewed velop their practical skills," Lessig said. "We will assist clients who might not in March, have since been proven correct: Con­ have the resources to hire a civil attorney." gressional hearings on the subject ofdigitallicens­ Lessig gained notoriety by advising U.S. DistrictJudge Thomas Penfield ing began April 3. JacksonintheMicrosoft antitrust case. Lessighas addressed audiences around Napster began blocking songs in March after the world on cyberlaw topics, including a well-received keynote address at the U.S. Ninth Circuit Court ofAppeals revised an the national Peer-to-Peer ConferenceinSanFrancisco lastyear. He is a pro­ earlier court injunction, and thereby let the com­ lific writer and speaker on behalfofindividual rights issues in cyberspace. pany continue the swapping service as long as it "There's something about the climate now," the cyber rights expert says, took all "reasonable steps toward blocking copy­ "that indicates a lot is changing in law and society. Our mission is to make righted songs identified by the record labels." sure that a framework is established that will allow creativity to flourish." Hank Barry '83, CEO ofNapster, said in re­ Ofthe first cases under review by the center, one challenges the consti­ ferring to his own company, "The Ninth Circuit tutionality of the copyright Court ofAppeals clearly said that P2P is not an ar­ term extension act; the sec­ KEEPING THE INTERNET AT chitecture that is inherently illegal." ond, a free speech case, in­ LEAST AS FREE AS THE REST OF volves a client who is being OUR LIVES IS ONE OF LESSIG' 5 Other Industries Affected sued by CNNfor puttingup y early 2001, every sector in the entertain­ POLICY GOALS. a spoofwebsite. ment and media industry was already think­ Granick-a criminal defense attorney who earned her stripes defending Bing what P2P technology would mean for its young computer experts-said, "Students will workdirecdywith litigators on business, says Stephen Sharf '75, a film entertain­ these cases, because we believe that the value ofpractical experience in this ment attorney who represents studios and produc­ fast-changing field cannot be overestimated." tion companies, among them Sony Pictures The center offers a limited-enrollment seminar, Law and Technology, Entertainment and Walt Disney Productions. which Granick explained is a work-in-progress. "We'll be doing a lot ofcase In the film industry, Sharfsays, the Napster fall­ work over the summer, and next year we expect to be involved in a greater out and the possible future it suggests are "prime nwnberofcases," she said, adding thatthe centerwill be responsive to a wide topics at every convention and seminar. The biggest range ofissues. "We will match cases with our students based on their inter­ concern is the piracy issue [with digital DVDs]. ests and ability." People spend $50 million to manufacture a mo­ Lessig said Stanford students generally display an "extraordinary amount tion picture. At the moment it's only a bandwidth of energy" when it comes to individual rights and technology. However, he problem that is preventing the same kind ofdown­ makes clear that the centeris not exclusivelyfor certified digital activists. "We loading we see with sound files on Napster." won't choose people because oftheir point ofview," he said, "but rather on Digital age companies are not unaware ofthis their ability to work. This type of experience can be a valuable tool for any future. "This is not something that ends in music; student planning on joining a Silicon Valley firm." Those who become involved with the center most assuredly will become well versed in digital civil liberties law. "I don't want to underestimatewhatwould happenifpeople got aroused about these issues," attests Lessig's colleague Margaret Jane Radin, Wm. Benjamin Scott and Luna M. Scott Professor of Law, who taught Stanford's first courses in cyberlaw. "Ifpeo­ ple who really care about free speech begin to push for legisla­ tive and judicial decisions, 1 think that could make a difference in our future."_

16 SUMMER 2001 it's absolutely going to happen in the film to fear from a "Napster-esque" economy. willing to go on the Internet to get copies of area too," confinns Heather Bell Redman, '90, "History shows that new innovations that CD without paying anything to the executive vice president, strategy and devel­ like the record player and the VCR created artists, songwriters, and copyright owners. opment at AtomShockwave Films, an new marketplaces and revenue bases for copy­ The reality is that many songwriters and Internet-based film and game provider. right holders," says Alex Alben '84, vice pres­ artists are paying their rent and putting food She said, "Ourwhole angle is now about ident for government affairs at RealNetworks, on the table based on the royalties that they thinking, 'How do you become a major me­ Inc. "And the videocassette not only opened receive from the sale of CDs and tapes." dia company with the changes that are hap­ up a new marketplace, but on a real-dollar ba­ pening in the marketplace as a result oftech­ sis, theatrical-based revenues have increased Software Industry Similarities nology? You look at what a Disney does: since 1980. The core market continued to ut are there ways for copyright hold­ They've got Tv, film in theaters and dolls in grow as two new ones did: video rental and ers to make money even with a dif­ stores down better than we ever will. They've video sales." Bferent interpretation of copyright? been working these models for years. But RealNetworks' Alben points out that, "there then you ask, 'Does Disney know how to Get Closer to the Artist are industries that have thrived with high take advantage of the Internet, of mobile o what are current copyright holders rates ofpiracy. The one that is most relevant communications, ofwhat people want to do to do? Simply sit back and allow pira­ is the software industry, which faces a 20 to on their cell phones?' The answer is, 'No, not scy? "WIth sound recordings, for exam­ 30 percent rate domestically, and 80 to 90 per­ better than we do.''' ple, a lot ofpeople believe that you can make cent in some foreign countries. Does that more money by looseningyour control on the mean that it should stop making software Betamax Revisited music," says Fred von Lohmann '95, a copy­ products? What tlle software industry did e real wrestling match in the dig­ right lawyer and visiting researcher at the was realize that it could operate in an at­ ital infonnation transfer debate thus Berkeley Center for Law & Technology. ''You mosphere ofhigh piracy. The way to get con­ 'Dfar has been in the always nebulous forge closer relationships with the artists. Pay sumers to buy products when it is easy to space between intellectual property and fair Prince $20 a year and get whatever he puts counterfeit is to offer an array of benefits, use. Napster fans say that because there are out. There are many possible business mod­ like customer support and upgrades. These public domain recordings and other licensed els waiting to be tried, this argument goes, if are tangible benefits to the consumer." works accessible through the service, there only you let go a little bit. Don'tworry about Along these lines, AtomShockwave's are "substantial non-infringing uses." This is keeping track of every copy of every song. Redman says that if her company became language the Supreme Court used in 1984 to Take advantage of access to artists and gath­ the target of Napster-like alleged pirating, usher in VCRs in the famous Sony Betamax er marketing infonnation. Thinkofhow valu­ "We'd probably try to co-opt the process case Universal City Studios, Inc. et al. v. Sony able it would be to know what CDs people and use it as a tool for promotion. We'd like­ Corporation ofAmerica Inc. et al., despite the like. This is one theory." ly take tlle position that ifyou work with con­ infringing uses (home taping) that were ad­ Notsurprisingly, current copytight hold­ sumer demand, there is always a way to prof­ mittedly going on. The Ninth Circuit agreed ers and their attorneys don't necessarily see it it from it." that the Napster system is "capable of sub­ that way. "We're talking about Copyright 101 Why do current copyright holders and stantial non-infringing uses." here," said Adrian White '79, addressing cur­ next generation companies see things so dif­ Napster hasn't had much success battling rent apster-like file sharing. White is exec­ ferently, especially when profits for every­ contributory infringement accusations on utive vice president of business and legal af­ one are literally guaranteed? As von Lohmann these fronts thus far, although Barry says he fairs at the independent record label Sheraton explains, "Why should we expect record com­ believes the Sony argument will fallon kinder Square Entertainment, LLC/Artemis Records, panies to be eager to embrace change? Afrer ears as Napster's case moves up the federal and works with artists such as Steve Earle and all, their profits have been growing in the judicial ladder. "We have appealed the deci­ Ricky LeeJones. last few years. They face challenges, they sion ofthe Ninth Circuit because we believe Linda Newmark '88, senior vice presi­ have bad years and good years, but there's no there was a misreading of the Sony case," dent of acquisitions at Universal Music crisis with the basic business model, as far as Barry said. Publishing Group, agrees with White. "The the executives are concerned. They know it Even though the recording (and mo­ main danger that we face is that there are has to change, but they feel they can man­ tion picture) giants are bristling at and suing music consumers who do not really under­ age and be in charge of the u·ansition." over alleged violations of current copyright stand or care about the concept ofcopyright. Another reason is that no single model law, many of those delving deepest into the Many people who would never consider go­ has yet emerged tllat guarantees copyt'ight media delivery debate are predicting that ing to their local record store and walking out holders what they believe is tlleir justified current rights holders don't have that much with a CD without paying for it may be velY piece ofthe pie.

"THE COURTS RIGHT NOW ARE ALLOWING CURRENT COPYRIGHT HOLDERS TO LEVERAGE THEIR POWER IN CYBERSPA E. WHEN CABLE STATIONS REBROADCAST CONTENT, THEY USE COMPULSORY LJ 'ENSING. IT'S A VERY SENSIBLE SYSTEM ... ," -PROFESSOR LAWRENCE LESSIG

STANFORD LAWYER 17 Neither the Medium Nor the Message, It's the Business Model that Counts

ACCORDING TO ALEX ALBEN '84 CAB '80), vice sold for $15, allowing the record company to retain roughly president ofgovernment affairs for ReaL.~etworks, $4 after manufacturing and distribution costs and markup by Inc., hard-line business decisions will eventually the wholesaler and retailer. Furthennore, on every record dictate which model(s) ofdistribution will be cho­ with at least ten tracks, the music publishers representingthe Alex Alben '84 lAB 'SOl sen to bring music to the masses. The following authors ofthe underlying songs earn 7.5 cents pertrack, which excerptis taken from a longer article by Alben titled Copyright they distribute to the writers in their repertoire. So, the CD in the Post-Napster Universe. Alben is a member ofStanford's as a fonnat is a boon for both record companies and music Law, Science & Teclmology Advisory Board. writers, as it guarantees the sale of 10 to 12 songs witll each "While consumer behavior is in flux and the legal stan­ basic unit. dards are far from clear, solutions are emerging on the digi­ "Online distribution threatens the established CD business tal horizon. The same technologies that Internet users have model because interactive techologies allow consumers to pick widely embraced can also drive a legitimate market for mu­ and choose which songs theywant to stream ordownload. Few sic.... What will these new models look like? consumers, even with high bandwidth connections and lots of "To be successful, the businesses that sell online music hard drive storage space, will select all 12 songs on a digital al­ will have at least the following elements: 1) They will offer a bum. In fact, buildingyourown playlist and mixing and match­ wide choice ofmusic content to consumers (one ofthe killer ing songs by different artists (or by the smne artist from differ­ features ofNapster)j 2) They will make it super easy for con­ ent albums) is one ofthe joys ofusing a digital jukebox. sumers to find and subscribe to music, withoutjumpingthrough "The sale ofsongs in single units, however, breaks the CD onerous authentication and anti-piracy procedures; 3) The unit and the CD price point. More than any otherfactor, this consumerwill perceive 'value' in the product that is delivered. is the obstacle for online music distribution. Once the record "While it is evident that online music distribution is in­ companies and music publishers are convinced that they will credibly convenientfor music lovers, we should recognize that sell a high volume ofsongs online-unbundled from tlle tra­ retail distribution ofrecords serves a large market very well. ditional package of 10 to 12 per CD-rapid progress will be People like the physical touch and feel ofCDs, and appreciate made and the legitimate problems ofsecure music distrubiton the ability to stack them on their shelves and play them both will be solved. To accomplish this, : I inhome stereos and portable CD players. High-speed Internet online companies will need to work : I and vast online databases will not erase the advantages ofthe with record companies to estab- : I CD. Rather, distribution ofmusic over the Internet will sup­ lish new units ofsale that create a ~-- ... plement the retail market and create brand new music prod­ fair 'value proposition' in the minds ucts that don't have equivalents in the physical world.... of consumers who have become "The challenge for new methods ofdistribution, in fact, accustomed to free online distri­ lies more with the established business models ofthe record­ bution. ing industry than with the creation of new technologies to "Given the forces unleashed serve new markets. For the past 20 years, the CD's 600 by digital distribution, it i., inevery­ megabyte storage capacity has enabled music producers to one's interest to establish a mar­ give users 10 to 12 tracks of high quality digital audio in the ket that benefits both users and Redbook CD fonnat. Consumers recognize the value ofget­ owners of copyrighted works. ting a dozen songs for $15 at the record store. Consumers re­ Until tllen, we will continue to suf­ mained loyal to this price point, even when it becmne appar­ fer the shocks oflife in the digital ent to music critics and music consumers alike that very few earthquake zone, where the en­ recording artists were making albums that were wanted by ergies ofconsumers and content fans for each and every track. owners collide in unpredictable "However, tlle 'one-hitwonders' oftlle record world still ways."_

Are Laws Too Restrictive: and Luna M. Scott Professor of Law, be­ at Stanford and offered the schools first course le technology and consumer lieves that recent additions to copyright law, on the Web. "Any more than that is mo­ demand are pushing the legal such as the Digital Millennium Copyright nopoly. Legislation like the Digital Millen­ W and business models for media Act, have resulted in intellectual property nium Copyright Act increases property rights. distribution in one direction, elements in the rights becoming overextended. "From an Ifthere's not enough new stuffout there that judicial world could well be moving in the oth­ economic point ofview, we only need enough we can use to make new things, people will er. Property and cyberlaw expert Margaret copyright to get the material out there," said slow down making things. And that's con­ Jane Radin, Stanford's Wm. Benjamin Scott Radin, who pioneered courses in cyberlaw trary to the purpose ofcopyright law. The re-

18 SUMMER 2001 "THE INDUSTRY CAN THEORETICALLY SURVIVE THE ARCHITECTURAL READJUSTMENT OF $IO-PER-MONTH INSTEAD OF $16-PER-CD." -PROFESSOR MARGARET JANE RADIN

vision of the Napster injunction said some­ in the marketplace to subscription services for sumers demand. "The thing like this-that the original injunction online content. My company has a very pop­ record companies and went too far. I think that's a step in the right ular program (GoldPass) that offers streaming publishers have prom­ direction." music and video to subscribers, for a monthly ised that they would license these kinds ofuses While almost everyone agrees with en­ fee of$9.95. There are 200,000 subscribers. You for five years; hundreds of millions ofdollars tertainment attorney Lee Eastman '97, that geta specified set ofcontent. For example, ac­ have been invested in anticipation ofthose li­ an "enormous shake-up of traditional busi­ cess to major league baseball games." censes, and they have never materialized." ness models" is under way throughout the in­ What ofthe artists? Many players in the dustry, exactly what kinds of models will Starting at Zero May Be debate, from the Recording Industry Asso­ emerge is, in 2001, a matter ofconsiderable An Advantage ciation ofAmerica leadership to the regulars speculation. s for whether the traditional media in Napster chat rooms, claim to speak for the "Right now almost all of our revenue powerhouses will be necessary in the actual creators ofthe content. But here again comes from syndicating the content," says Adecentralized, Internet-based near fu­ the legal and business models are still evolv­ Redman. "[We sell] to other businesses who ture, Redman, as most everyone else in the are­ ing. Michael Hausman, manager for musi­ need content to attract visitors: broadband na, can't predict. But she says, "We have the cian Aimee Mann, points out that any new providers, cellular folks, TV stations, and luxury ofbuilding from the ground up and can model has to consider complex issues ofdivvy­ new-technology folks who are trying to build grow as consumer demand grows, whereas a ing up performance, songwriter, and copy­ readership. The other part of the business is traditional media company is used to pack­ right fees. "And many older artists didn't have ad driven. We are definitely looking at and ex­ aging productin a box and selling it in a store. digital distribution clauses in their contracts." perimenting with subscription and pay-per­ It sees itself as less flexible. There's also the Von Lohmann believes that the features view models as well." possibility that the successful new media ven­ of copyright law a society adopts influence The future is so up in the air, no one tures will be the target of buyouts." the kinds of artists the society gets. He says seems to have an answer to this basic ques­ Can the established media players ad­ that some potentially emerging models would tion: After learning that they can receive con­ just to new rules, to new interpretations of eliminate the Britney Spearses and the tent, legal or not, for free, is the Napster gen­ copyright, to new business models, to an ab­ "Titanics" ofthe world, but might foster in­ eration willing to pay for its trip-hop jams? sence of factories and a tangible shrink­ dependent artists whose sales numbers now Although it's hard to compete with free, wrapped product? "The industry can theo­ just don't spell pay dirt for major distribu­ many pundits point to early research that ap­ retically survive the architectural readjustment tors. "In the patronage days we got Beethoven pears to indicate that Napster users often of $lO-per-month instead of $16-per-CD," and Mozart, and there was no copyright law," download music as a free sample, which in turn Radin says. "I don't know if they can exactly he points out. "We had music. Some people spurs them to buy albums. But Lusan Chua turn on a dime." even think it was good music." '03 offers a perspective that those in the in­ Universal Music Publishing Group's dustry might not like to hear: "A lot of Newmarkis certainly aware ofthe changes that [Editor's Note]: In late spring, Real­ Napster's appeal is that it's free. People say it's are afoot in the very near future. "In the mu­ Networks, AOL Time Warner Inc., EMI and not, but the fact is students are poor. A five­ sic field, I think we will have subscription BMG teamed up to form the joint venture dollar subscription model doesn't sound like services where consumers will pay a month­ MusicNet, a new licensing subscription tech­ a lot, but that's lunch." ly fee in order to get either a certain number nology for online services companies. Napster Indeed, one ofthe challenges to the record ofdownloads or streams ofmusic per month, may be an affiliate. industryis "to give the consumer incentives to or, for a higher fee, an unlimited number of Yahoo! Inc. announced Duet, the online purchase the online product," says RealNet­ downloads or streams for that month. I also subscription service that will offer music from works' Alben. "One might be very simple: On think we will continue to have pay-per-down­ major record labels Universal Group and Napster you don't really know what you're load sites. I don't think traditional record Sony Music Entertainment. The service will getting in terms ofquality. The product might stores are going to go out of business, but be part of the Yahoo Music site. be mislabeled, the wrongversion, too short, or they are likely to incorporate kiosks or other Vivendi Universal, the world's largest the wrong format. One of the key benefits of computer terminals that consumers can use music conglomerate, bought the streaming legitimate digital distribution is that the con­ in the stores to buy music. I'm sure there will audio companyMP3.com, which may provide tent provider will be there to stand behind the be things that we rely on in five years that we technical contributions to Duet.• product. In fact that's a key feature ofany buy­ can't even imagine today." VVork by Doug Fine, AB '92, has appeared in the er/seller transaction. In terms of what these Napster's Barry isn't so sure traditional Washington Post and in Salon. His book, Not Really systems will look like, there is some attraction copyright owners can adjust as quickly as con- an Alaskan Mountain Man, is due out nextyear.

STANFORD LAWYER 19 Election 2000 Covera e

Karlan Leads Stanford Law Through Media Blitz Sullivan in Supreme Court Case Over Florida Electors Library's Database Proves Major Resource Election 2000: Epilogue Provides Public Retrospective

By Mel Taylor

T THE TUR OF THE CE TURY, satirist Finley Peter Dunn created a fictional char­ acter by the name of Mr. Dooley. Records show that Dooley was a Chicago bartender 1W()'IN-ONE·Professor Pam Karlan (left! relied on Erika Wayne to provide who had an exceptionally keen understanding updates on litigation and breaking news during the election. Wayne-who of how the political process worked. has the picture·in·piclure feature on her lV-said that on one evening, Karlan appeared on MSNBC and CNN simultaneously. One summer evening, after a consider­

able time of bending the elbow with his friend, Mr. Hennessey, and Richard E. Lang Professor ofLaw and Dooley reached over the bar, drew his best mate close, and whispered what he Stanley Morrison Professor ofLaw, said in­ troducing Karlan at a post-election forum in knew to be an ultimate truth: February at the Law School. "And you can "Hennessey," he said "no matther whether th' constitution follows th' flag be sure the CD-ROM and autographs are right behind it," she said without missing a or not .•• th' supreme coort always follows th' i1iction returns." beat. The audience laughed. Sorry to say, Mr. Dooley, but Bush v. Gore turned that one inside out, for this It was a light-hearted moment preced­ ing what would be a serious discussion by a time the election returns followed the Supreme Court, whose pivotal December panel ofnationally well-known legal schol­ 12 decision Bush v. Gore helped seal the victory of President George W. Bush ars, including Sullivan and Karlan, who were brought together for "Election 2000: in Rorida and thus the nation. Epilogue." The open forum, sponsored by the Fora clear understanding ofthe legal cir­ Montgomery Professor of Public Interest Law School and the Stanford Law Society of cumstances surrounding what has been called Law, wrote the first casebook on the elec­ Silicon Valley, would examine the difficult the case ofthe decade, we highly recommend tion early this year, working with Samuel legal issues thatAmericans most wanted sort­ Professor Pamela S. Karlan's casebook, Whm Issacharoff, Professor ofLaw at Columbia ed out and analyzed after the nation's 36-day Elections Go Bad: The Law ofDemocracy and the Law School, and Richard H. Pildes, emotional roller coaster ride in electing the Presidmtial Election of2000 (Foundation Press, Professor of Law at New York University 43d president ofthe United States. More on 2001), from which Mr. Dooley was borrowed, School of Law. the forum later. quite liberally. "This has to be the fastest case book What really added the extra measure of Karlan, the Kenneth and Harle ever published," Kathleen M. Sullivan, Dean humor to Sullivan's introduction was the fact

20 SUMMER 2001 Election 2000 Chronology that during the election and its aftennath, ty, one that might be a little obscure, but Karlan served as the Law School's on-air, then something like this hits. I felt as if! The following chronology of events, which on-line, up-linked, in-print media expert. had invested in the right thing-the appeared in Harper's Magazine (May To this day, columnists and news pro­ Haloid [now Xerox] Corporation oflegal 2001), was prepared by Erika Wayne of the ducers continue to choose her for expert specialties." Robert Crown Law Library staff. analysis ofa wide range ofelection and vot­ She weighed in when the heavy po­ ing rights issues. In April, her op-ed on litical guns came and went. She weighed NOVEMBER North Carolina redistricting appeared in in on the butterfly ballots and the the New York Times. In May, she was fea­ Votomatic machines, whyvoters vote and 7Voters go to the polls to elect their 43d president. At 7:49 p.m., EST, NBC is the first television network to tured with Judge Richard Posner of the how voters vote, disenfranchised voters name AI Gore the winner of Florida. The other three net­ U.S. Court of Appeals for the Seventh and privileged voters, undervotes, over­ works soon follow suit. At 10 p.m., CBS is the first net­ Circuit in an election cover story in votes, and why voting procedures "should work to retract the call. Harper's Magazine. probably not be standardized" for the na­ "Pam Karlan is an expert who learned tion's 180,000 voting precincts. SAt 2:16 a.m., the Fox Network's Decision Desk, man­ voting rights law as a litigator in the Karlan closely followed the more aged by George W. Bush's first cousin John Ellis, calls the trenches for the NAACP Legal Defense than 30 lawsuits filed in Miami-Dade, presidential race for Bush. At 4:05 a.m., the call is and Education Fund," Sullivan told the fo­ Broward, Palm Beach, Leon, and Volusia retracted. By late morning, Bush's nearly 6 million-vote rum audience in Kresge Auditorium. "She counties alone and provided analysis for lead is reduced to 1,784 votes. Neither candidate concedes. is truly one ofthe top voting rights experts many. She did the same for the litigation in the United States." erupting in Georgia, Illinois, NewMexico, 9 Gore asks for a hand count of presidential ballots The media agree. During the elec­ and Texas. in Volusia, Miami-Dade, Broward, and Palm Beach tion, Karlan appeared 15 times on top­ "I felt that part of my responsibility counties. rated network broadcasts, and was in­ as a legal expert was to explain how a parti­ terviewed by major publications at least cular case fit into the context ofother court 11 Bush sues in federal court to stop manual recounts that many times. She appeared on The decisions-lower courts for contested elec­ in these counties. NewsHourwith Jim Lehrer and Nightline, tion recounts and Supreme Court deci­ Volusia County files suit in Leon County Circuit and was quoted often by Hemy Weins­ sions for broader issues," she said. 13 Court seeking to extend the Tuesday deadline for a final tein ofthe Los Angeles Times. Legal cor­ Herresponse to what was most chal­ vote count. respondents for the New York Times, as lenging about on-air analysis: "I made well as other national reporters and sure that I separated my description of Florida's secretary of state, Katherine Harris, says she will columnists, sought her out for her expert what was happening from my judgment not extend the 5 p.m. November 14 deadline for certify­ analysis. Karlan made it into their data­ as to how and why it was happening ... ing election results. bases because she knows her subject cold, I worked hard to keep the two separate, u.S. District Judge Donald M. Middlebrooks refuses to she thinks clearly, and she speaks plain­ but that's not always easy, you know­ stop manual recounts in Rorida. ly. Also, she's a tad irreverent, all ofwhich there's always a gray area there, where the adds up to making her an interviewer's two overlap at the margin." Palm Beach County seeks advisory opinions from the dream. She's an on-air natural. Division of Elections, which is under the secretary of "We jokingly said they should start Just One ofThose Days state, and from the Florida attorney general to determine sending a golfcart for her every morning," It was the middle of November. Karlan if it should proceed with a hand count. said hall-mate Robert Weisberg, the had chosen the second and third week Edwin E. Huddleson,Jr. Professor ofLaw. for make-up classes, figuring itwould be 14 Bush appeals Judge Middlebrooks's ruling to the Eleventh Circuit Court of Appeals in Atlanta. During the election, Karlan was doing a down time. In addition to everything else lot of taping for national shows at going on, she had bumped up her nor­ Secretary of State Harris sets a deadline for November Stanford's TV production studio right mal teaching load from 8 to 15 hours. 15 at 2 p.m. for counties seeking a manual recount to across campus. One morning, not a cart "My students were velY sweet through­ submit a written justification. but a limousine pulled up to whisk her to out the whole thing," Karlan said affec­ a San Francisco TVstation for a network tionately. "They really were." Leon County Judge Terry Lewis denies the request for an broadcast. On one ofthose not frantic but still injunction and upholds the Florida deadline to submit "It was a total blast," Karlan said. hectic days, her students made the day. election results by 5 p.m., but rules that counties may notify the secretary of state that recounts are pending, "You know, you think you have a special- She had scheduled a makeup class for a and are allowed to continue recounting and to file updated or corrected returns. "It was exciting, interesting, and the kind After receiving conflicting advisory opinions, Palm Beach ofevent you're glad when it's over ... but County asks the Florida Supreme Court if it should I wouldn't have missed it for the world." proceed with the hand count. -PROFESSOR PAM KARLA

STANFORD LAWYER 21 them to discuss constitutional law in an intense Library Database \Vms Law Library kind ofway by focusing on a particular issue." Publications Award for 2001 At the same time, she pointed out that there was a lot of "hand-wringing" among THE LAW SCHOOL'S ELECTION 2000 website, which proved to be an invalu­ certain members ofthe professoriate-at-large able resource during the election, recently won the Association of Law Libraries pub­ who thought Bush v. Gore was the worst opin­ lications award in the nonprint division. The award will be presented at the annual ion ever. "But make no mistake, this case was AALL conference this July in Minneapolis. Accepting will be Erika Wayne, Reference not Korematsu, nor was it Dred Scott," Karlan said. "Itwas bad in craftsmanship, but not un­ and Internet Services Librarian, who developed the website. precedented." Election 2000 served as a leading resource during the election, drawing hits from Understanding why the court decided a wide range of users-from legal scholars and the media to national search engines the way it did, and what it did wrong in terms and the Department of Justice. During the 1S-day period leading up to the final Supreme of judicial craftsmanship, she said, is some­ thing people will spend time working through Court decision, the site was accessed 1,400 times. On December 12, the day of the in constitutional law and political process decision, it received 763 hits. courses for years to come. Wayne credits faculty and staff with helping her put Election 2000 together. "For example, Paul Lomio [the library's Assistant Director for Information Services], who Technology: Help or Hindrance? The roles of the media and the newer tech­ is the biggest news junkie in this whole building, was first in the office each day:' she nologies were discussed by political pundits said. "When I came in, he would ask me if I knew about such-and-such a case or did and national news anchors ad infinitum af­ I hear the latest about a breaking news story?" ter the election. Was their overall effect good, The librarian said Professor Pam Karlan and other faculty members would drop by bad, or neutral? "Five years ago, this story couldn't have on their way to class to provide her with updates and new leads. "Even my father, who been covered this way," Karlan said. The lives in central Aorida, would send me news clips from local papers In Seminole County ability to get copies ofdocuments literally as before they made the national radar:' Wayne said. "Truthfully, the database project they were filed, in effect, changed how these turned into a Law School team project!' events were described. "I was better informed on briefs and expert opinions coming out of She followed a morning ritual: Check CNN, the Orlando Sentinel, the Miami Herald, Florida, economics and political science de­ the Palm Beach Post, the Tallahassee Democrat, and the Atlanta Constitution. "At least partments, and law schools than I ever could they had the news stories, then I had to search out the legal references:' she said. have been in the past. The desire for instant Wayne admitted that gathering the legal information sometimes took a bit of results still remains problematic for the me­ dia, bur I have to say from the point ofview sleuthing, but most often "it just took being friendly and talking to lots of clerks and ofa scholar commenting on what was going assistants. One clerk even took the time to fax me 300 pages:' on, the immediacy offered by the new tech­ Faculty, staff, students, alumni, and friends who use the site can't say enough good nology was one hundred percent positive." words about Wayne, Lomio, and the entire library staff. Karlan underscored the fact that reporters often asked for comment on a decision too "As much as our library is closed to the general public, when you put up a good soon after it was handed down. More sur­ website that's made available to everyone and they find it useful ... that's quite a prisingly, she said a lot of experts "shot ftom service:' Wayne said. Visit the site at http://election2000.stanford.edu the hip" and responded without having re­ viewed the case or decision in question. "I never spoke on a decision or case that I had­ n't actually read," she added. time during which she was supposed to tape As a legal scholar, Karlan took a broad­ And therein, as Mr. Dooley would say, lies for The NewsHour, so she asked her students er look than most at the overall effect of the a tale. ifshe could do the first 20 minutes ofclass, go election, and particularly how it might influ­ to the studio, and return. "Well, of course," ence legal education. Get it First, Get it Right they replied. "We were provided with a wonderful Itwas almost 7 p.m., PST, Tuesday, Decem­ When she got back, one of them had teaching vehicle-wonderful for teaching stu­ ber 12, when Erika V Wayne had decided written on the board in big letters: "Pam, while dents about civil procedure and federal courts enough was enough. The Robert Crown you were out, your mom called. We told her issues," Karlan said. "There were a lot offirst­ Library reference and Internet services li­ you were in the library, butwe can't keep cov­ years in the class who hadn't had constitu­ brarian was tired after several weeks of te­ ering for you like this." tionallaw yet, so itwas a great opportunity for dious work compiling a monster database on

22 SUMMER 2001 15 The Florida Supreme Court denies Secretary of State Harris's motion to halt manual counting of ballots. Harris says she will not accept results of any hand re­ counts when it is time to certify the Rorida vote on November 18.

16 Gore files an emergency motion in state court to prevent Secretary of State Harris from certifying the results until the manual recounts have been completed.

The Rorida Supreme Court issues an interim order that Palm Beach County can proceed with a manual recount of ballots.

17 The Eleventh Circuit Court of Appeals denies Bush's request to stop manual recounts on constitutional grounds.

Leon County Judge Lewis rules that Secretary of State Harris's decision to exclude hand-recounted votes was not an abuse of discretion and allows the decision to stand.

The Rorida Supreme Court orders Harris not to certify the Florida vote until it can rule on whether hand recounts will be added to the final tally.

"This case was not Korematsu, 21 The Rorida Supreme Court unanimously rules that state election officials must include the results of manual nor was it Dred Scott." -PROFESSOR PAM KARLA, recounts in Rorida's final presidential tally.

22 Palm Beach County Judge Jorge Labarga rules that Election 2000. This powerful resource docket number and then the decision," election officials must consider dimpled chad ballots. tool would eventually list 700 sources, she said, "so I decided to type in what I Miami-Dade County Canvassing Board stops the recount thought the decision name would be us­ court documents, findings, articles-all of ballots. efficiently broken down into 64 sec­ ing their style." tions, some with more than 250 refer­ Karlan was in her office working on Bush files a certiorari petition with the U.S. Supreme ences. Then and now, it is the site for something else when she got a call from Court, asking the Court to block the Rorida Supreme election issues. If Forbes's "Best of the legal correspondent HenryWeinstein of Court decision allowing hand counts. Web" issue ever names the top election the Los Angeles Times. He told her the site, this will be it. decision was imminent. "I tried to pull it 23 Florida Supreme Court declines to order Miami­ Dade County to resume recounting ballots. "Thatnight, we suspected the court down from the Web, but I couldn't, so I was going to hand down its decision but went down to the library. Erika had al­ 24 The u.s. Supreme Court agrees to hear Bush's I was tired ofwaiting," Wayne said, "so ready gotten it and printed it out. And, appeal of the November 21 decision ofthe Florida I decided to pack it in and go home. I had you know, within a minute and a half, Supreme Court. just reached Campus Drive andJunipero I'd say we got forty calls. But before I Serra Boulevard when NPR announced returned any ofthem, I took the time to 26 Secretary of State Harris announces the certified that the court was going to make a state­ read it." Wayne said Karlan gotit first and vote totals with a 537 vote lead for Bush, thereby ending ment." She turned herMitsubishi around got it right. the protest phase and beginning Florida's contest phase. and headed back to the library. 27 Gore files a complaint in Leon County Court Wayne said the Supreme Court "Election 2000: Epilogue" to contest the election. website had been getting hammered all Mter the prolonged election process, day, and it was nearly impossible to get while many Americans were believed 2f) Leon County Judge N. Sanders Sauls orders the on. But, because librarians are part de­ on even jubilant, many others relieved 14,000 ballots contested by Gore to be brought to his ," tective, Wayne had spotted something that the strength of their voice in gov­ courtroom along with the voting booths and tabulation about the way the Supreme Court Web ernment had been weakened. In cities machines. people were fashioning their URLs. across the country, Americans expressed "There was a certain way they wrote the their need for a contextual framework

STANFORD LAWYER 23 Sullivan Played Role In Florida Case Helped Establish Federal Election Reform Commission

"NO LAW SCHOOL was more caught up in the election and unteered their time pro bono on both sides of the aisle!' the post-election fever than Stanford law School;' Dean Kathleen Asked how the case will affect the teaching of the law, she M. Sullivan said, "whether it was Warren Christopher '49 leading said, "For a constitutional lawyer, you can't just teach Bush v. Gore the Gore forces down in Florida or Pam Karlan appearing literal­ as garden variety equal protection case. You have to teach it as ly every night as the voice of reason and clarity on the nightly high­ something more momentous, more about the relationship between quality news shows!' the court and the political process, something closer to teaching Sullivan served as co-counsel with Harvard law Professor about Brown v. Board [ofEducation] and the relationship between laurence Tribe, on the first election-related case that went to the the court and the political process!' U.S. Supreme Court [Bush v. Palm Beach Canvassing Commission]. Sullivan said that, as a casebook author, she would place Bush The case Involved a challege to Florida's recount procedures, and v. Gore near those cases that are about what should be legal ques­ ultimately, to the authority of the Florida Supreme Court. tions and what should be political questions, "so it belongs more "I got involved;' she said, "because of my litigation experience with Marbury v. Madison than with the cases about unequal tax­ working with Tribe and my connection through the school with ation and commerce among the states." Warren Christopher.... I thought it was very important to the rule In addition to developing a deep appreciation for how the of law and respect for the law to defend the Aorida Supreme Court courts work,· Sullivan pointed out a second positive outcome of from a kind of court-bashing that was beginning to sweep the the case: the development of the private, bipartisan National country, and also to make the argument that, in the first round, Commission on Federal Election Reform. She· was recently ap­ the Florida Supreme Court was trying to interpret the law, not pointed, along with former Senator Slade Gorton of Washington, make the law!' Tribe, in describing Sullivan, has said she "has a as one of the vice chairs of the commission. (See NewsBriefs, great sense of mission!' page 5). She explained that the issue In the case was whether there ex­ As for the election's end result, she believes that the very best isted a federal statute that required Aorida to decide who its pres­ outcome would be "to increase the attention that we pay to elec­ idential electors were by a particular time. "And on that issue, we tions by increasing voter turnout and also strengthening each per­ basically won nine-to-zero;' she said. "In both Bush v. Palm Beach son's belief that each and every vote really does count. With re­ and the second round, Bush v. Gore, the Supreme Court decided spect to procedures, we need to make sure that, to ensure that that federal law was a safe harbor provision. little did we know every vote does count, those votes are counted correctly!' that the two lurking issues of Article II were, first-was there a fed­ Sullivan said she got involved in the election reform movement eral constitutional bar on Aorida judicial involvement in deciding by way of writing an op-ed in the New York Times, "One Nation, who the electors were, and, second-was there some requirement One Standard Way to Ballot" (November 15,2000). Serendipitously, in the Fourteenth Amendment equal protection clause that re­ the article appeared on the day Sullivan was attending a board counts by a state be decided in some uniform fashion? Those two meeting of the Century Foundation. sleeper issues came to life in the second round of the case!' In the article, Sullivan wrote, "A constitutional amendment of Sullivan said it was fascinating to sit in Dean Kathleen M. Sullivan Article II could provide for uniform election the second chair watching Stanford law grad­ methods simply by emulating the fail-safe uates Chief Justice William H. Rehnquist '52 clause of Article I: for example, by providing (AB '48,AM '48) and Associate Justice Sandra that Congress should prescribe the time, Day O'Connor '52 (AB '50) playa crucial role places, and manner by which electors should in the ultimate decision. "The most exciting be included on the ballot and elected, and part about it was to see the importance of the method for settling disputed votes!' law to our national political health. This is a The coincidence of the furor over the elec­ country in which, as [Alexis] de Tocqueville tion, the op-ed piece, and the board meeting said, 'The most important controversies even­ provided the impetus needed for the founda­ tually get decided by lawyers:" tion to became one of the major sponsors of Sullivan said that whatever you might this private election reform commission, think of the election outcome as a political Sullivan said. matter, you have to be impressed with "the She summarized her role in the election energy and vitality of the profession that pro­ this way: "This is really a story of a constitu­ duced it, the power of the advocacy, the re­ tional scholar who gets involved in a consti­ markable speed and quality with which the tutional case, loses, and becomes involved briefs were produced, and the arguments with constitutional reform.... I hope we're prepared, and the array of lawyers who vol- ultimately going to win!' •

24 SUMMER 2001 30 Acommittee of the Rorida legislature votes to recom­ mend a special session with the intent of selecting its own slate of presidential electors.

Gore asks the Florida Supreme Court to order an immedi­ ate hand recount of the disputed ballots.

In the U.S. Supreme Court, Democrats challenge the right of Florida's legislature to select their own presidential electors.

DECEMBER

1 Oral argument in the case of Bush v. Palm Beach County Canvassing Board is presented in the U.S. Supreme Court.

The Rorida Supreme Court affirms the decision of the Palm Beach Circuit Court that the butterfly-ballot design did not disenfranchise voters. SUPREMES' INTERVENTION: At "Election 2000: Epilogue," panelists Dean Sullivan (not pictured! and (from left! Professor Akhil Reed Amar, Professor Pamela Karlan, and 4 The u.s. Supreme Court vacates the decision of the Fonner FCC Chair Newton Minow debated the more controversial issues, including the timing of Rorida Supreme Court, ordering it to clarify its definition of a legal standard for recounts. judicial intervention and relevance of the electoral college. Leon County Judge Sauls rules that the vote tally for to clarify how and why this remarkable as father ofMary Minow '97." Nassau County should remain unchanged and that hand chapter in election history had played Vigorous debate focused on over­ recounts of disputed ballots are not needed in Palm Beach out the way it did. "Election 2000: arching electoral themes, some philo­ and Miami-Dade counties. Epilogue" examined that context, and sophical, others practical: Do we truly more. enjoy a universal right to vote? Should 6 The Eleventh Circuit Court denies Bush's request for an The public forum held in Kresge the effectiveness ofour vote depend on injunction to stop manual recounts in four Florida counties. Auditorium featured a panel ofnational­ whether we do so by punch card or pen­ 8 The Rorida Supreme Court overtums Leon County ly recognized legal scholars. In addition cil, paper or machine? Should we switch Judge Sauls's decision to reject Gore's request for a recount to Sullivan and Karlan, the panel included to uniform digital voting methods? of the undervote in a few Rorida counties and orders the ..:. ," Akhil Reed Amar, Southmayd Professor Should national elections be entrusted recount to begin immediately. ofLaw at Yale Law School and Visiting to local canvassing boards? What should Professor ofLaw at Stanford during 2000­ the role ofthe courts, state and federal, 9 The u.s. Supreme Court stays the Rorida recount. 01, and Newton N. Minow, national pub­ be in deciding the outcome ofdisputed Justice Scalia, in a concurring opinion, writes that "[t]he lic interest advocate, former Federal elections? The panel then took ques­ counting of votes that are of questionable legality does in my view threaten irreparable harm to [George Bush], and to Communications Commission Chair­ tions from the audience in a lively ex­ the country, by casting a cloud upon what he claims to be man, current member ofthe Presidential change. "Election 2000: Epilogue" was the legitimacy of his election. Count first, and rule upon le­ Debate Commission, and Annenberg streamed over the Web and cable cast on gality afterwards, is not a recipe for producing election re­ Professor of Communications Law and Stanford's Channel 51. sults that have the public acceptance democratic stability Policy at Northwestern Law School. The finality of the United States requires:' Amar is a leading expert in consti­ Supreme Court decision in Bush v. Gore tutional law and constitutional history, compressed what seemed to be a lifetime 12 The U.S. Supreme Court reverses the ruling of the as well as the author ofnumerous books, of political wrangling into a IS-second Florida Supreme Court in Gore v. Harris. The recounts are including The Bill ofRights: Creation and sound bite-but this particular one will halted. Justice Stevens in his dissent writes: "Although we may never know with complete certainty the identity of the Reconstruction. He also appeared often on continue to be replayed, and often, far winner of this year's Presidential election, the identity of the national media during the election. into the future.• loser is perfectly clear. It is the Nation's confidence in the Minow was lauded by Sullivan for judges as an impartial guardian of the rule of law:' his "extraordinary career as a distin­ Videotapes of"Election 2000: Epilogue" are guished chair ofthe Federal Communi­ available by calling 650/723-51 00. The pro­ 22 The Florida Supreme Court issues an opinion on re­ cations Commission under President gram is available on the VJ7eb at http://video­ mand from the U.S. Supreme Court, Writing: "Accordingly, Kennedy ... and for serving as a great tux.stanford. edu:8080Iramgen/lec­ pursuant to the direction of the United States Supreme lawyer and great public servant as well turesle2 k-epilogue.rm Court, we hold appellants can be afforded no relief:'

STANFORD LAWYER 25 Professors in Print Excerpts from faculty publications, quotations, and commentaries

JOHN H. BARTON '68, George E. Osborne Thus, the persistence of racial segregation, Professor ofLaw, as coeditor with Melanie C. even in the face of civil rights reform, is not Greenberg and Margaret E. McGuinness, in mysterious." TVords Over Ular (Rowman & Littlefield 2000): PAUL GOLDSTEIN, Stella w: and Ira S. "In making any such evaluation of a ne­ Lillick Professor of Law, in his book, gotiation, it is important to consider the dif­ International Copyright: fering meanings that can be given to success "Not all copyright principles are univer­ and failure. Stalling disaster for a period is of­ sal, nor are all divisions false. To take just one ten valuable. In light of the real uncertainties example, a distinctive commitment in the of the world, few serious politicians will be United States to individual autonomy in polit­ moved by the argument that the particular ical and economic life has left a visible mark on peace will lead in a few years to an even worse the nation's copyright law. American fair use eruption ofviolence. (The classic example of doctrine, permitting the free use ofcopyright­ a peace with seeds ofdiscord-Versailles-was ed works under circumstances that other coun­ certainly planned, not a matter ofa failure to tries would find hard to excuse, clearly mirrors w: Ford Professor ofDispute Resolution, on achieve a more balanced agreement.) Moreover, the special place offree speech in the American curtailing litigation, in the Los Angeles Times: one never knows how much worse things would constitutional scheme. Inexcusing certain new "Starting in the 1970s, this kind of great have been had there been no agreement." technological uses of copyrighted works, fair negativism about the role of the courts ush­ G. MAR C USC 0 L E, Associate Professor use and otherstatutory exemptions also reflect ered in an era of conciliation, in which busi­ of Law, on bankruptcy exemption reform, in the American resistance to collective adminis­ nesses and the courts themselves promoted al­ American Banker: tration-a common institution in Europe and ternate means of resolving disputes. The "The call for reform of the use of state elsewhere-as asolution to the transaction costs emphasis on methods such as mediation was propertyexemption law in bankruptcy has been that arise at the intersection ofcopyright and accompanied by a shift in rhetoric promoting sung by a wide range ofvoices, in near perfect new technologies." the idea that it is bad to fight, good to com­ harmony, across the entire political spectrum, HENRY T. GREELY (AB '74),Professorof promise." from bankruptcy scholars, bankruptcy judges, Law, on the federal ruling that genes can be LAWRENCE LESSIG, Professor of Law, bankruptcy lawyers, journalists, and even the patented, in the Ulashington Times: on Napster, in the Guardian (London): National Bankruptcy Review Commission. "The guidelines don't speak to the polit­ "The courts are ratifying the ability of[the "One commentator has identified the ab­ ical and religious concerns ofwhether genes entertainmentindustry] to regulate cyberspace sence ofuniformity as the single most threat­ should be patentable at all. ... But they are a now, before we even know what it's going to ening aspect of the bankruptcy crisis. These good move in that they are attempting to strike look like.... We need the period of experi­ voices are just the latest in a long succession a balance between encouraging scientists to mentation. Give me 10 years before we get to of challenges to employment of diverse state make discoveries, yet not give anyone an un­ that conclusion, but don't restrict the innova­ property exemptions in bankruptcy." necessary monopoly." tion now." RICHARD T. FORD (AB'88),Professorof GERALD GU NTH ER, William Nelson JOHN HENRY MERRYMAN, elson Law, as coeditor with Nicolas Blomley and Cromwell Professor ofLaw, Emeritus, on Bush Bowman Sweitzer and Marie B. Sweitzer David Delaney on residential segregation, in v. Gore, in "A Risky Moment for the Court" Professor of Law, Emeritus, in his book, The Legal Geographies Reader: in the New York Times: Thinking About the Elgin Marbles: Critical Essays "Political geography-the position and "As I thought about what might have on Cultural Property, Art and Law: function of jurisdictional and quasi-jurisdic­ roused four or five Justices to take up this case, "If the principle were established that tional boundaries-helps to promote a racial­ I thought back to an earlier era in which the works of foreign origin should be returned ly separate and unequal distribution ofpoliti­ Court was asked to expedite review-Watergate. to their sources, as third World nations in­ cal influence and economic resources. "In 1974, the Court had more than two creasingly demand in UNESCO and other Moreover, these inequalities fuel the segrega­ weeks to reach a decision all could support. In international fora, the holdings ofthe major tive effect ofpolitical boundaries in a vicious 2000, the time to think through and agree on Western museums would be drastically de­ cycle ofcausation: each condition contributes more esoteric legal issues is far shoner.... But pleted. to and strengthens the others. ifthe Justices do rule on the case, they should "The Elgin Marbles symbolize the entire Thus, racial segregation persists in the ab­ strive for a unanimous, clear decision. body ofunrepatriated cultural property in the sence ofexplicit, legally enforceable racial re­ Otherwise, this divisive election could end up world's museums and private collections. strictions. Race-neutral policies ... predictably corroding not only the political process, but Accordingly, the preservation and enjoyment reproduce and entrench racial segregation and the Court as well." of d1e world's culmral heritage and the fate of the racial caste system that accompanies it. DEBORAH R. HENSLER, theJudgeJohn the collections of the world's great museums

26 SUMMER 2001 William B. Gould IV Honored For National Service are all in some measure at stake in a decision -Memoir Focuses on NLRB about the Marbles." ROBERT L. RAB.lN. A. Calder Mackay WI L LI AM B. GO ULD IV. the Charles A. Beardsley Professor Professor ofLaw, on regulatory compliance of Law, has written Labored Relations: Law, Politics, and the as a defense to product lia bility, in the NLRB: A Memoir, a work that has gained international at­ Georgetown Law Journal: tention. Gould served as chairman of the National Labor "... If we are substantially dependent Relations Board from March 1994 to August 1998. He has on the tort system to provide the educational since returned to Stanford, where he has been on the law fac­ function of revealing massive cover-ups of ulty since 1972. health information by industries like as­ A member ofthe National Academy ofArbitrators since bestos, or occasional efforts to conceal risk 1970, Gould has arbitrated and mediated more than 200 labor disputes. Upon his resig­ information from regulatory agencies like nation from the NLRB, President Clinton wrote: "With a strong commitment to pro­ the FDA, then it is undeniably the case that moting stable labor-management relations, you have skillfully guided the NLRB through tort law is serving a positive function ofsome the challenges posed by today's rapidly changing work environment." consequence...." On the occasion of Gould receiving his fifth honorary doctorate, the president of MARGARET JANE RADIN (AB '63), Wm. Rutgers University said, "... perhaps more than any other living American ... [he has] Benjarnin Scott and Luna M. Scott Professor contributed to the analysis, the practice, and the transformation oflabor law and labor re­ of Law, on organizing an advertisement in lations." the New York Times that carried the names of InJanuary, Gould wrote an opinion page editorial in the San Francisco Chronicle high­ 660 law professors denouncing the U.S. lighting features ofthe confirmation ofhis appointment to the NLRB. The following ex­ Supreme Court decision in Bush v. Gore, in cerpt is from "Borking-Then and Now": the Boston Globe: "... I was the third ofClinton's black subcabinet early selections (for chairman ofthe "Law professors are generally quite con­ National Labor Relations Board), and, although confirmed, I attracted the largest num­ servative, and we don't do things like this fre­ ber ofsenatorial 'no' votes ofany administration appointee during that time. quently. But I was outraged. I thought the "Opposition to Clinton nominees was said by some to be Republican vengeance for rule of law collapsed and that it was akin to the Senate's 1987 rejection ofRobert Bork for the U.S. Supreme Court. The press creat­ a coup d'etat. Itwas beyond the pale and went ed a verb, 'Borked.' The term is now attached to the pendingnominations ofJohnAshcroft against all legal precedents. It was a naked for attorney general, Gale Norton for secretary of the interior, and the now-withdrawn power grab." candidacy ofLinda Chavez for secretary oflabor. DEB 0 R A H L. RHO DE. Ernest W. "The Borking ofClinton nominees differs from the Borking ofthe Bush triumvirate. McFarland Professor ofLaw, with Charisse Formal debate about my nomination, for instance, focused on my proposals to strength­ R. Lillie, on the lack ofdiversity in the Florida en existing labor law. This contrasts with [Linda] Chavez, who opposes minimum wage, election proceedings, in the Chicago Tribune: family leave and affirmative action legislation. The contention was that when I would ad­ "In a profession where women consti­ judicate labor-management disputes, I would use my reform proposals aimed at fortifying tute almost 30 percent and minorities 11 per­ the law. cent of the membership, is it possible that "In 1993, today's supporters ofAshcroft derailed the nomination of those ofus who none qualified to playa prominent role in supported the law. Now they support those who would radically transform it... ." the litigation? What message does it send Under Gould, the board sought injunctive relief more frequently than in any compa­ when the only woman professional to figure rable period in its 63-year history. Gould teaches a seminar on international labor stan­ prominentlyin the legal proceedings, Florida dards, and has begun a book on the subject, which was brought into focus during the 1999 Secretary ofSta te Katherine Harris, received World Trade Organization meetings. almost as much coverage for her choice of lip gloss as for the merits ofher decisions?" 1 atural Resources Law, on innovations in ornot justice is served in capital punishment WILLIAM H. SIMON, William Wand environmental policy, in the University of cases, in the Houston Chronicle: Gertrude H. Saunders Professor ofLaw, on Illinois Law Review: Robert Weisberg... has studied capital lawyers accepting stockin lieu ofcash, in the "Perhaps the most pervasive, prominent, punishment extensively and concluded it ex­ New York Times: and continuing innovation in the modern en­ ists mostly as a symbolic issue. As long as "It's not the form of compensation you vironmental era has been the involvement of politicians say they are in favor ofit and oc­ want to keep your eye on, but the relative citizens in the enforcement ofenvironmen­ casionally execute someone, the public is sat­ magnitude. If a large fraction of a lawyer's tal laws.... Unlike their predecessors, al­ isfied and a "cultural equilibrium" is main­ portfolio is invested in a client, then people most all of the major laws provided for suits tained, he said. worry that his independence will be com­ by private citizens to enjoin or penalize vio­ Voters may not reject a district attorney promised and he'll be more likely to over­ lations oftheir provisions. These citizen suit such as Holmes Gohn B. HolmesJr., the re­ look improper practices or even encourage provisions became a defining theme of the cently retired district attorney of Harris them in the hope ofpersonal gain." modern environmental era." County, Texas] who pushes through a lot of BARTON H. THOMPSON JR.JD/MBA ROBERT WEISBERG '79, Edwin E. death penalty cases, he said, but neither do '76 (AB '72), Robert E. Paradise Professor of Huddleson,Jr. Professor ofLaw, onwhether they demand someone like him. _

STANFORD LAWYER 27 HE SKY ON FRIDAY, OCTOBER 20, may have been a bit overcast, but the excitement and anticipation that filled the air more than made up for the weather. Law School alumni came to socialize with fellow grads, salute members often reunion classes, learn about the future oflegal education and how to make the most ofthe Internet economy, and listen to the Honorable GeorgeJ. Mitchell deliver the ninth]ackson H. Ralston Lecture in International Law. Distinguished former U.S. Senate majority leader Mitchell was hon­ ored with the Ralston Prize for his humanitarian legislative initiatives and accomplishments as an international peacekeeper.

The occasion also celebrated the Warren Christopher Professorship '97," he said," I decided to try new tactic. I wanted them to agree on in International Law and Diplomacy, a joint professorship with the simple list ofwhat each wanted." Not surprisingly, "both sides wanted Instimte for International Smdies. The creation of the chair was the the same things, and that is what led to a breakthrough in the talks and inspiration oflead donor Richard L. Morningstar '70, the Ambassador evenmally led to the accord." The full text ofMitchell's speech appears to the European Union, and his wife, Faith (AB '68). Many other gen­ in the Stanftrd Journal ofInternational Law, vol 37: 1. (To order a copy erous Christopher admirers and Stanford supporters ultimately jointed of the issue, visit http://www.law.stanford.edulsjill) the Morningstars in underwriting the new chair. Mitchell serves as chancellor ofThe Queens University ofNorthern In May 1998, Mitchell-atthe request ofthe British and Irish gov­ Ireland and chairman ofthe International Crisis Group, the ethics com­ errunents-served as chairman of the International Commission on mittee ofthe U.S. Olympic Corrunittee, and the ational Health Care Disarmamentin Northern Ireland. He successfully mediated an historic Commission. Most recently, he was asked by President Bush to head accord agreed to by Ireland and the United Kingdom. For his service, the U.S.-led fact-finding committee inquiring into the use of deadly he received the Presidential Medal of Freedom-the nation's highest force in the outbreak ofIsraeLi-Palestinian violence. civilian honor-in addition to the Philadelphia Liberty Medal, the Truman Instimte Peace Prize, the German Peace Ptize, and the United SALUTING ALUMS: Dean Sullivan addressed alumni Nations (UNESCO) Peace Prize. gathered for their SO·year reunion on Saturday evening. Mitchell's lecture, titled "Making Peace," focused on his experi­ Reunions were held for the classes of 1950, '55, '60, '65, ences at the center of the IrelandlUK Peace process. He recalled hav­ '70, '75, 'SO, '85, '90, and '95. To property fete the large ing made little or no progress for ayear and one-half, and failed to even group, individual pavilions were set up on Wilbur Field. get the two sides to sit in the same room. "Then before Christmas in Alumni enjoyed fine dining, socializing, and dancing.

PHOTOS BY RUSS CURTIS 28 SUMMER 2001 Panels on Peacemaking and. the Future of the Profession Drew Enthusiastic Crowds Alumni Weekend 2000

HONORED STATESME : The Honorable George J. Mitchell (third from right) former Senator from Maine and veteran peacemaker in the Northern Irish conflict, delivered the Law School's 2000 Ralston Lecture before a packed auditorium audience. Introducing Mitchell was former Secretary of State Warren Christopher '49 Ion Mitchell's right), who was accompanied by his wife, Marie. Next to the Christophers are Ambassador to the European Union Richard L. Morningstar '70 and his wife, Faith lAB '681, the couple who started the ball rolling on the Warren Christopher Professorship in International Law and Diplomacy. Also pictured is former Senator John Glenn and his wife, Annie.

LONG VIEW: The theme of the Alumni Weekend 2000 panels and breakout sessions was the future of the legal profession. On Friday afternoon, the lawyer's role in the information economy and the way legal .. , education should prepare graduates for the changing business and -..... , governance environment were analyzed by a panel of law school deans that ,. included (from left) Daniel R. Fischel, University of Chicago; Dean Kathleen Sullivan; and Anthony T. Kronman, Yale University.

30 SUMMER 2001 NET NET: Established businesses and start-ups operat­ ing on the Internet are raising significant legal issues in meeting challenges and taking advantage of new opportunities. Outlining the issues were Joseph A. Grundfest '78, W. A. Franke Professor of Law and Business (moderator, second from right) and panelists (from left! John Bryson (AB '651, Chairman, President, and CEO, Edison International; Candace Carpenter (AB '751, Cofounder and Chair­ man of the Board of Directors, iVillage.com: The Women's Network; Ann L. Winblad, Cofounding Partner, Hummer Winblad; John E. Place '85, then General Counsel, Yahoo! Inc.; and Ivan K. Fong '87, Senior Counsel, E-commerce and Information Technology, General Electric. Robert I. Worth '55 (AB '531, Eugene B. Rauen '55, and Molly Rauen.

LUCKY DAD: C. Brooks Cutter '85 and his two lovely daughters, Margot lIeft! and Seline, both proud to be Cardinal supporters.

COVERING THE BASES: Four breakout discussions focused on changing service models, maintaining profitability, expanding career opportunities, and how public policy makers can lead the way to the future. The session on "Working in the 21st Century: How to Identify and Maximize the Expanding Variety of Career Opportunities" was addressed by Cheryl D. Mills '90 (moderator! Charles E. Luckhardt, Jr. '56 (right) having a great time with

and panelists (from left! Stanford Law his grandson Charles Luckhardt IV, granddaughter Ally, and ., ,.. Professor G. Marcus Cole, Juan Sabater '90, their friend. Russell B. Pyne, JDIMBA '80, and John J. Sabl '76 (AB '731.

STANFORD LAWYER 31 LONG-LASTING EFFECTS: In February, the Law Society of Silicon Valley event "Election 2000: Epilogue" drew a responsive crowd to Stanford Law School to hear (left to right! Newton N. Minow, Annenberg Professor of Communications Law and Policy at Northwestern Law School and member of the Presidential Debate Commission; Dean Kathleen Sullivan; Stanford Law School Professor Pamela S. Karlan and Visiting Professor Akhil Reed Amar. Among the issues the panel discussed was whether the Supreme Court intervened too early in the political process.

~ POLITICAL PREVIEW: ~ The Stanford Law Society of ~ Washington, D.C., gathered

THE PROMISE: Stanford Law School graduates were sworn in to the Federal Bar for the Ninth Circuit and the State Bar of California in December by California Supreme Court Chief Justice Ronald George '64 and Ninth Circuit Court Judge Pamela Ann Rymer '64 Ipictured at right!.

OPEN DISCUSSION: Stanford Law alumni and friends wel­ comed Dean Sullivan to Phoenix in November at a luncheon hosted by Richard Mallery '63. The Dean discussed new strategic objectives for the School and engaged in lively conversation focusing on the presidential election. Pictured are (left to right! Roger W. Hall '88 lAB '851, Barbara J. Groth '78, Dean Sullivan, Dick Mallery, and Edward F. Lowry, Jr. '54 lAB '521. Remember Stanford Law School...

~,"d Delia we

The good news was their home was worth nearly $1.5 million, and they had no mortgage. Their stock had appreciated, too. Even after recent ups and downs in the market, the stock was still valued at $1 million. The bad news was capital gains taxes would erode those assets, if they tried to sell their home or diversify their investments.

Fortunately, an estate planning attorney told them about a Local Couple Avoids charitable remainder trust (CRT). "Uyou put your home and ital Gains Taxes your stock in a CRT;' she explained, "they can be sold for full Cap value. You won't pay a cent ofcapital gains tax on the sale, Large ... ~ ....f rd While Helping Suuuo you'll receive annual income ofat least five percent of the trust, and you'll have an income tax deduction equal to the Deceives Income, Too estimated remainder value of the gift left to charity when Coup1e n you die:'

Jon and Delia created a CRT at Stanford with their home and some of their stock that will pay them income of five percent per year for the rest oftheir lives (anticipated first-year income: $100,000). The CRT resulted in a $700,000 income tax deduction and, of course, eliminated the problem of capital gains taxes. This story is a composite ofseveral real-life stories. Each year, the Office ofPlanned Giving at Stanford helps scores ofdonors such as 'Jon and Delia" create win-win solutions to the problem ofselling appreciated assets. !fyou have questions concerning eRTs or other life income gifts, please contact us.

Call us: Write us: (800) 227-8977 326 Galvez St. Stanford, CA 94305-6105 ext 5-4358 Email us: Stanford or [email protected] Planned (;ivillg Visit our website: http://bequestsandtrusts.stanford.edu/ Stanford University Non Profit Organization Stanford Law School U.S. Postage Crown Quadrangle Paid 559 Nathan Abbott Way Palo Alto, CA Stanford, CA 94305-8610 Permit No. 28

THURSDAY TO SUNDAY OCTOBER 11 TO 14

oin alumni, friends, faculty, and students to celebrate Stanford Law School's rich tradition j of excellence, renew old ties, and develop new ones. Our agenda for the weekend includes the following new events and traditional favorites:

• Delegates' Summit and Volunteer Recognition Reception Dean Kathleen M. Sullivan will recognize current and prospective volunteers.

• Business without Borders: Mapping International Legal Practice How are informed business decisions made in a world of legal uncertainty? Is there an enforceable rule of law in cyberspace? Where is the free market economy least viable or most threatened and why? What are the biggest barriers to transparency in international transactions? How and why does the value of intellectual property vary from country ro country? Participants will examine the changes lawyers face in the competitive interna­ tional business environment. Panelists will include W A. Franke '61 (AB '59), Chairman, President, and CEO, Franke & Co., and Chairman and CEO, America West Airlines; Hon. Richard L. Morningstar '70, American Ambassador, European Union; and Stanford law faculty Thomas C. Heller, Lawrence Lessig, and Dean Kathleen M. Sullivan (modera­ tor).

• Peace and Justice in the 21 st Century: The International Criminal Court and an International Rule of Law Discussion will focus on some of the larger questions, controversies, and recent cases that have fueled the renewed campaign to establish the International Criminal Court under the auspices of the United Nations. This session will address the broader and longer­ standing academic and political debate over national sovereignty versus international jurisdictional concerns in the prosecution of war crimes, genocide, and crimes against humanity. Panelists will include Allen S. Weiner '89, United States Department of State, American Embassy, The Hague; and law professors Allison Marston Danner '97, Vanderbilt U.; Catharine A. MacKinnon, U. of Michigan; Abraham D. Sofaer, Stanford U. and Hoover Institution; and Thomas J. Campbell (moderator), Sranford U.

• Alumni Reception A festive reception for all alumni. Reunion classes will be grouped together.

• Dean's Circle Dinner This gala dinner will honor members of the Dean's Circle-annual donors of $10,000 or more. By invitation.

• Reunion Dinners Members of the classes of 1951,1956, 1961, 1966, 1971, 1976, 1981, 1986, 1991, and 1996 will garher with classmates for delectable food and even better conversation.

• Stanford vs. Washington State Football Game Show your rousing support for the Cardinal and help cheer the team on to victory! To support tomorrow's leaders ... To foster innovation in the teaching of law ... To sustain a standard of excellence ... The Stanford Law Fund

ere are just three reasons why 3. World-class faculty - H Stanford Law School's continued Stanford Law School faculty are success depends on the ongoing commitment among the most respected scholars of alumni like you. and educators in legal academia. They are academic innovators, designing a 1. Outstanding students and graduates ­ curriculum that will prepare students Stanford Law School prepares leaders. for the challenges of law, business, Stanford graduates practice in the and public policy in an increasingly nation's foremost law firms, public complex environment. interest organizations, government agencies, and businesses. Your annual gifts will go to work immediately, addressing the Law School's 2. Innovative curriculum - most critical and urgent needs: More than ever, society needs lawyers who are skilled and ethical problem­ • resources for faculty teaching and solvers. The Stanford Law School research, including the restoration of curriculum - emphasizing ethics, Stanford's distinctive faculty-to­ analytical thinking, and decision making student ratio and negotiation skills - prepares • student financial aid to mitigate the students to be successful practitioners debt burden of a Law School and contribute to society. education, through scholarships and the Miles and Nancy Rubin Loan Forgiveness Program • funding for innovative curricular and clinical programming, such as the Stanford Law and Technology Policy Center

Support Stanford Law School today. Every dollar you invest will yield rich dividends!

Beverly J. Watson '99 and Alejandro Cestero '99 talk with Frederick I. Richman Professor of Law Marc A. Franklin. To support tomorrow's leaders . .. .I am enclosing my tax-deductible gift to the Stanford Law Fund in the amount of: 0$1,000 n$500 CJ $100 0$50 0$ __

I am making my gift lDy: o Check (Payable to Stanford Law School) NAME CLASS YEAR o Visa 0 MasterCard D American Express o Securities, please have your broker call Victoria Von Schell at (650) 926-0244. o Online at htrp://givingtostanford.stanfotd.edu ORGANIZATION

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The Law Fund Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford, California 94305-9958 Phone: (800) 227-8977 x 59160 or (650) 725-9160 Web: http://lawschool.stanford.edu E-mail: [email protected]