A New Name for the Institute the Dwight D

The Dwight D. Opperman Institute of Judicial Administration at NYU School of Law Issue Number 3 / Winter 2005–06 A New Name for the Institute The Dwight D. Opperman Institute of Judicial Administration

wight D. Opperman Co-Director Oscar G. Chase, has long been a val- Russell D. Niles Professor ued supporter of the of Law, “During Sam’s and Institute and its pro- my time as Directors of the Dgrams. In addition to being Institute, we’ve personally a reliable source of wise ad- benefited from Dwight’s lead- vice and moral support for ership and friendship. While the Executive Directors, Mr. we look forward to working Opperman took the lead in es- with him for many years to tablishing an endowment and come, his legacy will inure to corporate funding for IJA. We IJA’s benefit some day in the are delighted to report that distant future.” Mr. Opperman’s generosity In recognition of all that Mr. and support of the Institute Opperman has done for IJA, have taken another momen- NYU, and the administration tous leap forward, in the form of justice throughout our na- of a substantial testamen- tion, the Board of Directors tary gift to the School of Law has honored him by renam- and to IJA. Says Executive ing the Institute as the Dwight D. Opperman Institute of Judicial Administration, effec- In This Issue tive November 11, 2005. Says New Judges Seminar 2 Executive Co-Director Samuel Estreicher, Dwight D. Opperman Oral Advocacy 3 Professor of Law (see p. 5 for a story about the Opperman Chinese Judges’ Program 4 Professorship), “Oscar, the IJA Opperman Professorship 5 Board of Directors, and I are proud and pleased to recognize Dwight D. Opperman IJA Summer Fellows 6 Dwight’s exceptional generos- Special Tribute Section 7 ity. Because of Dwight, we can philanthropy and commitment university for military service be assured that IJA will be able to legal education, especially during World War II. IJA Community News 9 to continue its mission of non- the continuing education of After the war and upon re- partisan research and judicial judges. The son of a railroad turning to Iowa, Opperman Board of Directors 10 outreach programs for at least worker, Mr. Opperman at- used his G.I. benefits to enroll IJA Members 10 another half century.” tended Drake University af- in law school at Drake. During Dwight D. Opperman, for- ter graduating high school in his time in law school, he ex- 2006 Calendar 11 mer chairman and CEO of Perry, Iowa. During his time celled academically and was How to Contact IJA 12 West Publishing Company, is at Drake, Mr. Opperman ma- elected to the Order of the nationally recognized for his jored in music, but left the Coif, the national honor soci-

ety for law school graduates. Upon com- formed relationships with many of the as college textbook publishing and ul- pleting his law studies, Mr. Opperman nation’s judges and, most importantly, trafiche. In the mid-1970s, the company took a position as legal editor at West gained an enhanced respect for the ju- launched Westlaw, the legal database Publishing, writing synopses of legal diciary that continues today. that has become West Company’s flag- opinions. He advanced quickly through In 1968, Mr. Opperman was appointed ship product. the ranks at West Publishing and was as- president of West Publishing. Later, he Following the sale of West Publishing signed to work in court relations, travel- was also named chief executive officer. to the Thomson Corporation in 1996, ing the country and meeting with state During his tenure, West Publishing’s Mr. Opperman founded and currently and federal judges to ensure their satis- revenues grew from $50 million to $822 serves as chairman of Key Investments, faction with West Publishing products. million, as Mr. Opperman led his com- a privately-held venture capital firm Through this position, Mr. Opperman pany into a variety of new markets, such that focuses on high-tech ventures. n U.S. Solicitor General Paul D. Clement Addresses Attendees of the 2005 New Appellate Judges Seminar

which the Court determined that man- datory federal sentencing guidelines conflict with the Sixth Amendment and must be regarded only as advisory. The judgment, he pointed out, affects the 1,200 cases heard each week in the federal courts. Clement, who enjoys California wines, said that the issue of interstate wine sales was one of abiding interest to him, though it was not a case that he ar- gued as the government’s top Supreme Court attorney. The Court struck down bans prohibiting out-of-state wineries from shipping directly to consumers, citing those laws as discriminatory. “I applaud the Court,” Clement said. “I think they got it exactly right.” The Court also took on the Ten Commandments. In one case from Intermediate court judges Darleen Ortega (OR), Judith McConnell (CA) and Paul Higginbotham (WI) Kentucky, county officials had posted the Commandments in courthouses, n July 10-15, 2005, more than Keynote speaker Paul D. Clement, and a Texas suit challenged a 40-year- fifty appellate judges attended Solicitor General of the United States, old state capitol monument. the Appellate Judges Seminar: delivered a welcoming address that “You might find it surprising,” quipped New Appellate Judges Series, a reviewed the Supreme Court’s most re- Clement, “that the two-ton monolith is Oprogram sponsored by IJA, NYU School cent term. Previous Solicitors General constitutional and the 8 ½-by-11 sheet of of Law, and the Federal Judicial Center. who have welcomed the new judges to paper is not.” The six-day conference, co-chaired by the Seminar have included Kenneth W. Also reviewing rationales in medical Professors Oscar G. Chase and Samuel Starr, Walter E. Dellinger, and Theodore marijuana, eminent domain and First Estreicher, IJA Executive Co-Directors, B. Olson (all IJA Board members), and Amendment cases, Clement pointed provided state and federal judges with Seth Waxman. out that the justices consider every ar- up to three years of experience on the Clement noted that with the public’s gument’s merits. “It really does matter appellate bench, in dialogue with a resi- focus on Justice Sandra Day O’Connor’s what theory is presented to the Court.” dent judicial and academic faculty, the retirement, and other possible Court va- During the week, substantive judi- opportunity to explore the challenges cancies, the term’s significant cases are cial education topics included a popu- inherent in judicial decision-making in danger of being forgotten. Consider lar three-session segment on Opinion and issues unique to appellate courts. United States v. Booker, said Clement, in Writing (led by Professor Timothy

Terrell of Emory University); a mock The social highlights of the seminar oral argument of FAIR et al. v. Rumsfeld included a dinner at the Water Club conducted by Isaac S. Greaney and Restaurant and an outing to see The Dorothy J. Spenner, associates at Light in the Piazza at Lincoln Center, in- Sidley, Austin, Brown & Wood LLP; cluding a talkback with cast members and Statutory Interpretation (led by after the show. Attendees included Professor William Eskridge of Yale Law judges from: the U.S. Courts of Appeals School). Resident judicial faculty mem- for the Ninth Circuit; state interme- bers, many of whom are themselves diate courts of California, Colorado, alumni of the Appellate Judges Seminar, Connecticut, Florida, Illinois, Indiana, included: Judge Rosemary Barkett* Kansas, Massachusetts, Minnesota, of the U.S. Court of Appeals for the Nebraska, New York, Ohio, Oregon, Eleventh Circuit; Judge Martha Craig Pennsylvania, South Carolina, Texas, Daughtrey of the U.S. Court of Appeals and Wisconsin; the courts of last resort for the Sixth Circuit; Justice Roderick L. of Arkansas, Delaware, Guam, Idaho, Ireland* of the Supreme Judicial Court Kansas, Kentucky, Nevada, Oklahoma, of Massachusetts; Judge John Gleeson Puerto Rico, Rhode Island, and of the U.S. District Court for the Eastern Wyoming; the U.S. Court of Appeals District of New York; Judge Robert A. for Veterans Claims; the Navy-Marine Katzmann of the U.S. Court of Appeals Corps Court of Criminal Appeals; and for the Second Circuit (an IJA Board the Court of Appeal of Ontario. member); Judge Harriet Lansing of Paul D. Clement The seminar was presented in cooper- the Minnesota Court of Appeals; Judge ation with the Federal Judicial Center’s Diarmuid F. O’Scannlain* of the U.S. School of Law teaching faculty included, training program for new circuit judges Court of Appeals for the Ninth Circuit; in addition to Professors Chase and and supported in part by grants from Justice Bea Ann Smith* of the Texas Estreicher, Professors Rachel Barkow, West Group and Cravath, Swaine & Court of Appeals, Third District; and Rebecca Hollander-Blumoff, Samuel Moore, LLP. n Judge Diane P. Wood* of the U.S. Court Issacharoff, Geoffrey P. Miller, Liam of Appeals for the Seventh Circuit. NYU Murphy, and Rick Pildes. * Denotes IJA Member Dialogue on Oral Advocacy Before the Federal Bench

n the evening of April 26, dozens of new lawyers gathered to hear a distinguished bench-bar panel discuss effective oral advocacy. ProfessorO Oscar G. Chase moderated the panel discussion plus a lengthy round of questions from the audience. The speakers included Chief Judge John M. Walker Jr. of the U.S. Court of Appeals for the Second Circuit, Judge Kimba M. Wood of the U.S. District Court for the Southern District of New York, IJA President Evan R. Chesler of Cravath, Swaine & Moore LLP, and Daniel L. Berger of Bernstein, Litowitz, Berger & Grossmann LLP. Judge Walker, Judge Wood, and Mr. Chesler are all long-time members of the IJA Board of Directors. This event was the first of an ongoing series that will use IJA’s unique re- sources of judicial experience to build Left to right: Professor Oscar G. Chase, Daniel L. Berger, Judge Kimba M. Wood, Chief Judge John M. better bench-bar relations. n Walker Jr., and Evan R. Chesler Chinese Judges Observe New York Courts in Action

n a Tuesday afternoon in July, criminal procedure in New York State. As during the program, including a reception judges visiting from the People’s for the judges’ other questions, Marcus at the Asian-American Bar Association Republic of China peppered explained that being a prosecutor isn’t and a meeting with U.S. District Court Bronx County Judge and former all that prestigious in New York—unless Judge Denny Chin of the Southern Oprosecutor Martin Marcus with questions. you’re the chief prosecutor. District of New York. They appreciated Is it normal to move from being a prosecu- The 22 Chinese judges were at NYU the opportunity to observe oral argument tor—considered equally prestigious to School of Law for the Training and at the Second Circuit Court of Appeals a judgeship in China—to the judiciary? Education Program for the Chinese as most of them are appellate judges at Does he preside over cases tried by for- Judiciary, a three-week training program home. They also enjoyed two sessions mer colleagues? Is it embarrassing to be conducted by IJA and Temple University, with Professor Jerry Cohen, delivered in reversed on appeal? with a grant from the U.S. Department of Chinese, on comparative criminal pro- “Never happens,” Marcus grinned in Justice, the third such program that IJA cedure and comparative judicial inde- answer to that last question. “It’s a judge’s has conducted. This year the program was pendence. These sessions gave them the job to apply precedent or, if there isn’t organized by Professor Mary Holland, chance to discuss some of the pressing any, to create new law. If an appeals a professor of lawyering and research legal and judicial issues in the Chinese court disagrees, well, that’s the nature scholar at the Law School. legal system today.” of the job. I accept what they say, if it’s a Says Professor Holland, “The Chinese Professor Holland not only taught sub- close case,” he said. Marcus, a 15-year vet- judges particularly enjoyed visits with stantive sessions for the program, but eran of the bench, told the judges about Chinese-American judges and lawyers also accompanied them on visits with

Students and Faculty of the Training and Education Program for the Chinese Judiciary held July 3–24 at New York University School of Law

Magistrate Judge Michael H. Dolinger (U.S. District Court for the S.D.N.Y.), New York State Chief Administrative Judge Jonathan Lippman, Robert Heinemann (Chief Clerk of the E.D.N.Y.), and the Red Hook Community Courts. Professor Holland welcomed the judges to the U.S. with a tour of New York City and a reception at her home, complete with Independence Day fireworks on the rooftop. Oscar G. Chase, Executive Co-Director of IJA, who taught alternative dispute resolution and conducted an essay-writing and evaluation session, commented, “This program is one of the highlights of IJA’s year, a rare chance to bring together judges from different legal systems in a potentially groundbreaking dialogue.” During the program, IJA hosts a lunch for Dwight D. Opperman and Professor Samuel Estreicher the Chinese judges and the participants of IJA’s New Appellate Judges Seminar, and Professor Jerome Cohen gave an en- The Inaugural Opperman Lecture: tertaining, thought-provoking luncheon address. “We’ve gotten excellent feedback Professor Samuel Estreicher’s from the American judges as well, who tell us that they’re gratified to get the “Beyond Cadillacs and Rickshaws” chance, so early in their appellate careers, to exchange ideas with the new judges YU School of Law proudly inau- he said that the U.S. civil court system is from China,” says Professor Chase. gurated a new chair this year: like a Cadillac: It provides superior ser- Other program faculty included the Dwight D. Opperman pro- vice, including extensive discovery and Magistrate Judge Rob Levy of the fessorship. On April 4, 2005 the generous damage awards, but only to E.D.N.Y. (alternative dispute resolu- Nfirst Dwight D. Opperman Professor of those who can afford to bring lawsuits. tion, with Professor Chase); Judge Law, Samuel Estreicher, Executive Co- “Those who can’t would be lucky to have Billie Colombaro, 2005 IJA Research Director of IJA and Director of NYU a rickshaw. People of modest means Fellow (the judicial profession); Samuel School of Law’s Center for Labor and with grievances have become ‘orphans Estreicher, Executive Co-Director of IJA Employment Law, delivered the inau- of the law.’ No one will come to their (civil procedure and labor law); Stephen gural Opperman lecture, with an intro- aid.” He added that the high costs of liti- Gillers (judicial ethics); Richard Stewart duction by U.S. Supreme Court Justice gation make it impossible for workers in (administrative law); Stephen Choi (cor- Anthony Kennedy. the lower–middle class to even contem- porate and securities law and crimes); In his opening remarks Justice plate bringing a lawsuit. James Jacobs (key issues facing the U.S. Kennedy praised Opperman, a nation- Estreicher proposed that law schools criminal justice system); Temple Law ally recognized philanthropist and institute more clinical programs to School’s Jeffrey Dunoff (trade law); and chairman of Key Investments, a privately handle typical claims of working-class Cardozo Law School’s Toni Fine (role of held high-tech venture capital firm, for people. He also urged law firms to take the U.S. Supreme Court). his commitment to the judiciary and to on more consumer-oriented matters as Although the Chinese judges took legal education. “The federal judges,” pro bono cases, arguing that provid- classes in English prior to their arrival Kennedy told the audience, “have no ing legal services to working people is in the States, everyone in the program truer friend than Dwight Opperman.” “more likely to result in substantial im- benefited from the exceptional services of (For more information on Opperman provements,” than pro bono class-ac- three NYU School of Law students, Aileen please see the front page article.) tion lawsuits. Gao, Zhen Liu, and Hong Ye, who served Estreicher’s lecture explored the un- “Beyond Cadillacs and Rickshaws” as translators from the moment the judges met legal needs of modestly paid work- has been published in the NYU Journal arrived at Newark airport until they were ers. In “Beyond Cadillacs and Rickshaws: of Law and Business Spring 2005 issue seen off on a bus to Philadelphia. n Towards a Culture of Citizen Service,” (Vol. 1, No. 2). n

IJA Summer Fellow Update

Every year since 1996, IJA has selected Teddy Rave will be clerking next 1998 Christopher J. Garofalo, four top-notch first-year students for its year for Judge Leonard B. Sand of the Lauryn Powers Gouldin, Ilizabeth Summer Fellows program. The fellowship, U.S. District Court for the Southern Gonchar Hempstead, Derek Ludwin a full-time summer commitment, inte- District of New York (IJA Member), and grates an intensive note-writing experi- the following year for Judge Robert A. 1999 Abigail Phillips Caplovitz, ence with research responsibilities for IJA’s Katzmann of the U.S. Court of Appeals Margaret Hayes Lemos, Joel Lance New Appellate Judges Seminar. Recent IJA for the Second Circuit (IJA Board Thollander, David Albert Yocis Summer Fellows have obtained clerkships Member). 2000 Brian Hochleutner, William with judges on the United States Supreme Jonathan Regenstein has joined McGeveran, Parvin D. Moyne, Shirley Court, various U.S. Courts of Appeals, State Friedman Kaplan Seiler & Adelman S. Park Supreme Courts, and U.S. District Courts. LLP as an associate in the Corporate We are proud to report on the latest news Department. 2001 Yohance C. Edwards, Jessica from our previous Fellows: Ajay Salhotra is working as an as- Kayle Fried, Jennifer G. Presto, Robert sociate at Debevoise & Plimpton LLP. Alexander Schwartz Jason Burge has been offered a clerk- ship with Judge Jerry E. Smith of the 2002 Matthew B. Larsen, Ajay U.S. Court of Appeals for the Fifth Salhotra, Kimberly C. Spiering, Circuit in Houston. Judge Smith has IJA Summer Fellows James A. Worth been an attendee and faculty member 1996–2005 2003 Kristina Daugirdas, Elliot of IJA’s Appellate Judges Seminars and Greenfield, Jonathan K. Regenstein, Workshop on Employment Law. 1996 Sarah R. Cebik, Jeffrey M. Lindsay (Traylor) Braunig Shirley Park is living in El Cerrito Hirsch, Daniel J. Krause, Daniel H. R. with her husband Chris. She recently Laguardia 2004 Jason W.H. Burge, Ari D. left her law firm job in San Francisco, MacKinnon, Lee M. Pollack, Teddy Rave Melanie Hochberg Giger, and is now working as a production 1997 Benet J. O’Reilly, Anjli Garg Pero, 2005 Kara J. Ervin, David A. Herman, editor at a nonprofit scientific pub- Kieran P. Ringgenberg, Douglas T. Tsoi Joshua M. Kaplan, Kimberly Steefel lisher, Annual Reviews, in Palo Alto.

Left to right: Professor Samuel Estreicher, Kimberly Steefel, Kara Ervin, Paul D. Clement, David Herman, IJA President Evan R. Chesler, Professor Oscar G. Chase, and Joshua Kaplan at the 2005 New Appellate Judges Seminar Remembering Friends of IJA

Pioneering a Purposeful Life: lieve that her greatest contribution is that, before she boldly marched into uncharted territory, she paused, turned around Florence Kerins Murray and beckoned the rest of us to follow.” By Frank J. Williams The day Justice Murray retired from the Supreme Court, Chief Justice, Supreme Court of Rhode Island she invited every member of the judiciary for an ice cream party, complete with ice cream cart. She greeted each and ev- leanor Roosevelt said, “The purpose of life is to live it, ery court employee that came to wish her well, reminding us to taste experience to the utmost, to reach out eagerly that Florence Murray was the best the Rhode Island Judiciary and without fear for newer and richer experiences.” In had to offer. her 87 years, Florence K. Murray—jurist, scholar, pio- From the undaunted courage of Amelia Earhart and unre- Eneer—knew what it was to live a rich and purposeful life. She lenting fortitude of Susan B. Anthony, to the quiet strength of was a woman energized by challenge, fortified by intellectual Rosa Parks, our nation’s past holds a great wealth of women quests and sustained by personal relationships. heroes who inspire us and provide us with examples of how Born in Newport, Rhode Island, on October 21, 1916, Justice to make a difference. Rhode Island’s history is equally laden Murray began her professional career as a teacher in a one- with notable women—Anne Hutchinson, Nancy Elizabeth room schoolhouse on Prudence Island and went on to accom- Prophet, Elizabeth Buffum Chace. Not the least among these plish a long line of firsts leading eventually to her being the distinguished women ranks Florence Kerins Murray. n first woman Rhode Island Supreme Court Justice. In 1948, Justice Murray ran for and was elected to the Frank J. Williams has been Chief Justice of the Rhode Island Rhode Island State Senate, becoming the first woman ever Supreme Court since February 2001. As an attorney, he ap- elected to the General Assembly. During that time, Justice peared many times before Justice Murray. As fellow veterans Murray was a leader in establishing the Rhode Island Family they became close colleagues when the Chief Justice was ap- Court in 1961. pointed to the Court. In 1979, Justice Murray became the first woman to sit on the Rhode Island Supreme Court. On and off the bench, she was known as a scholar who possessed an even judicial tem- Lawyer, Father, Churchman, perament and a voice for progress, keenly aware that the Democrat: Richard S. Arnold courts needed to change with the times and always focused By Morris S. Arnold on what was truly important. Judge, U.S. Court of Appeals for the Eighth Circuit Justice Murray presided over some of Rhode Island’s most notorious cases, including the nationally publicized Claus Von appreciate very much the chance to offer a few words in Bulow case. It was the day-to-day work, however, that sustained these pages about my brother. Since Richard passed away, her career. Justice Murray was a jurist untouched by publicity my family and I have received more than a thousand let- and notoriety. She knew her mission was to fairly consider the ters of condolence, notes, cards, and notices of memorial petitions of all the parties that came before her. She judged gifts,I a measure of a life extraordinary well lived, and we are cases on their merits and was respected by all who practiced thankful for every single one. Richard had a remarkable capac- before her. New attorneys, and I was one, were fortunate to ity for making and keeping friends. The range of his admirers have her as their first judge, as she ushered them into the pro- was enviable. Justice Ruth Bader Ginsburg wrote that Richard fession with patience, humor and a firm, guiding hand. It went “coped with his illness with unrelenting courage. Others, in- well with her other traits: frugal, practical and pragmatic. cluding me, gained strength from his example.” Mr. Justice One of her more interesting quotes I read in the days fol- Clarence Thomas remembered Richard as a “brilliant, brilliant lowing her passing, was her saying that she was a very good man who was a model of humility and self-deprecation.” student in law school, and it annoyed her that it was overshad- Richard was what the old biographers used to call a man of owed by the fact that she was the first woman to break down wide influence. I’m not talking about political or personal in- so many barriers in politics, the judiciary and the military. fluence. I mean that lawyers and judges, a highly independent She inspired close to four generations of Rhode Island’s lot, wanted to know what Richard thought and they gave his most powerful women in public service, law and business. opinion great weight, because Richard was both learned and Associate Justice Maureen McKenna Goldberg once noted, uncommonly sensible. He knew the difference between logic “Justice Murray is best known for having broken down so and reason. A measure of the respect that the judiciary had many barriers that were previously closed to women. I be- for him is that more than one hundred federal judges signed

a letter to President Clinton in 1994, urging him to appoint I suppose that the quality that people most admired in Richard to the Supreme Court of the United States. This was Richard, and the one most central to his personality, was his surely unprecedented. equanimity. Though he cared deeply about all that he did We all know how gifted Richard was. He was a master of (and especially about the work of our court), he was not in parliamentary procedure and used to read the Congressional the least bit excitable. Nor was he ever discouraged by techni- Record for fun. The Chief Justice and the Judicial Conference cality. He used to say that there was no such thing as a com- of the United States regularly sought Richard out to carry the plicated case; there were only cases with lots of simple issues. judiciary’s messages to Washington, for the simple reason Facts were what mattered, he often said; he knew what the that he knew where to go, whom to see, and what to say when law was. It was a pleasure to see him calmly pick through a he got there. His accomplishments were broad and revealed a jumble of facts and reorder them into a recognizable juridi- wide-ranging mind. He learned Hebrew late in life, from the cal shape. The answer was always obvious after you saw it. wife of one of Little Rock’s rabbis. (When I asked him why he Our father would marvel at this quality when all of us Arnolds was doing that, he replied that he wanted to be able to under- practiced law together thirty-five years ago: “It is so easy for stand what they were talking about when he went to heaven!) him,” he would say. Richard did frequently seem like an ora- He taught himself Italian by reading Dante’s Divine Comedy in cle of the law. He just opened his mouth, and out it came. the original. (“Just a dialect of Latin,” he told me matter-of- This same kind of simplicity manifested itself in Richard’s factly.) His Italian, French, and German accents were so good political life as well. I remember when he ran for Congress that they often drew praise from native speakers, a fact im- forty years ago, he had some small cards printed with his name possible to square with the only known disability from which and picture on the front; the back contained four stately, one- he suffered: He simply could not carry a tune! So I’m afraid word lines that read, “Lawyer, Father, Churchman, Democrat.” that the part of Ecclesiasticus that lauds the memory of “such We had lots of laughs about this over the years, and it became as found out musical tunes” will not provide an appropriate a kind of chant with us. But it was revealing. Richard believed text for a memorial to Richard. But the rest of those famous in the basic, simple rights and duties of citizenship, which passages will, especially the part that praises “Leaders of the helps explain his devotion to our Bill of Rights. people by their counsels and by their knowledge of learning A little story may help illuminate what I am talking about. for the people; wise and eloquent are their instructions.” Not long ago, when I was performing the sad duty of going through Richard’s ef- fects, I opened a small Like all good teachers, he would often take what drawer like the one we all use when we need a you said and give back an improved version… place to put things that we can’t quite bring our- selves to throw away. It Richard nevertheless wore his learning lightly. As my wife, might be a note from a friend, or a birthday card—you know Gail, recently put it, he made you feel smart when you were what I mean. In the drawer there was a badly rumpled pic- around him. He listened quietly and respectfully, taking in ture of some family members, and beneath that there was a every word. You found it easy to learn from him, without photograph of me when I was fourteen, and under that, on entirely realizing it. Like all good teachers, he would often the bottom, sat three application cards that Richard had filled take what you said and give back an improved version that out in 1947 for merit badges from the Boy Scouts. Already at you could take away and make your own. Speaking with him age eleven, he was developing basic civic virtues and learn- was a little bit like playing in a large orchestra; one could ing the ways of the Republic. And he already had that char- just saw idly along and feel like an important contributor to acteristic handwriting, rather resembling a Carolingian mi- the total effect, most of which actually was the product of nuscule, that had a clarity, and a simplicity, that perfectly Richard’s virtuosity. matched his thought. Richard’s jurisprudence and judicial method were difficult I don’t want to leave the impression that Richard was to classify. He was, as they say, the liberal’s favorite conser- some kind of guileless ingénue. Of course, we all know that vative and the conservative’s favorite liberal. A newspaper he wasn’t. Another story will help here. Many years ago, he editor in South Arkansas noticed this quality many years ago was asked to write a letter of recommendation to Harvard after hearing Richard make a campaign speech and respond Law School for the son of an Arkansas grandee. So Richard to questions. The editor said that Richard was not the pris- wrote to Dean Erwin Griswold (who, incidentally, had of- oner of any obvious or crudely fashioned ideology. One got fered Richard a teaching job in 1962) and told the dean that the impression, he wrote, that Richard approached the ques- the young man in question had “considerable intellect.” Now tions one at a time and gave them properly individual consid- this was an exaggeration of gargantuan proportions: The ap- eration. He kept no one-size-fits-all template handy for decid- plicant had scored a 260 on the LSAT; in those days you got ing cases. He was at once unpredictable and consistent. 200 points just for putting your name on the paper! So I said to

IJA Community News

We welcome news updates from our best book of legal history or legal bi- Honorable Ellis E. Reid, an alum- Board, Members, Fellows, and Appellate ography in 2004, and also was named nus of the 2001 New Appellate Judges Judges Seminar Alumni. If you would co-winner in 2005 of the Pendleton Seminar, has retired from the Illinois like to submit an item for the next issue Prize given each year by The Society Appellate Court and joined the firm of of our newsletter, please email Alison. for History in the Federal Government. Neal & Leroy, LLC. [email protected] or fax (212) 995-4036. Judge Ferren was an attendee of the Honorable George Bundy Smith, 1978 Senior Judges Seminar. judge of the Court of Appeals of the Honorable Rosalie Silberman Abella, Rebecca Hollander-Blumoff holds State of New York, was recently hon- formerly of the Ontario Court of Appeal, the position of IJA Research Fellow for ored by the Albany Law Review, which has been elevated to the Supreme Academic Year 2005–06. Hollander- dedicated its March 2005 issue to him. Court of Canada. Justice Abella attend- Blumoff served as a faculty member The publication included tribute pieces ed the 1998 Advanced Judges Seminar. for IJA’s New Appellate Judges Seminar by the Honorable Judith S. Kaye, We regret to report the passing during her time as a member of the Chief Judge of the Court of Appeals of of Honorable Lawrence G. Crahan, lawyering faculty at NYU School of Law. the State of New York and an IJA Board judge of the Court of Appeals of Honorable Robert J. Kapelke, judge Member, and the Honorable Inez Missouri for the Eastern District, and of the Court of Appeals of Colorado, re- Smith-Reid, judge on the District of an alumnus of the 1994 New Appellate tired from the Court in January 2005. Columbia Court of Appeals and a 2000 Judges Seminar. Judge Kapelke is an alumnus of the 1995 IJA alumna. Judge Smith, an alumnus Honorable John M. Ferren, se- New Appellate Judges Seminar. of no fewer than three IJA Appellate nior judge of the District of Columbia We extend our most grateful thanks Judges Seminars, has also delivered Court of Appeals, has published Salt for the hard work and support over the IJA’s Fifth Annual William J. Brennan of the Earth, Conscience of the Court: years of the Honorable Stewart G. Jr. Lecture on State Courts and Social the Story of Justice Wiley Rutledge Pollock, former justice of the Supreme Justice and is a frequent speaker at (University of North Carolina Press: Court of New Jersey, who retired from special IJA events. 2004). It is a biography of President the IJA Board this past Fall. Justice We regret the passing of the Franklin Roosevelt’s eighth and last Pollock was a long-time IJA Appellate Honorable I. Daniel Stewart, who appointee to the U.S. Supreme Court. Judges Seminar faculty member, who passed away on June 23, 2005. A jus- The biography has been awarded the delivered the Second Annual William tice of the Supreme Court of Utah, annual prize given by the Langum J. Brennan Lecture on State Courts and he attended the IJA Senior Appellate Project for Historical Literature for the Social Justice. Judges Seminar in 1979.

Richard, “How can you possibly say that this fellow had con- is expected from those to whom much is given. Richard under- siderable intellect?” “Well,” he said, “he has an intellect, and stood this and cheerfully shouldered the burden. He soldiered you can consider it.” On one reading this is a very simple con- on in his state out of the limelight when he could have taught struction of the words, in another it is surprising and complex. at Harvard or Columbia, or become a partner in a big city The truth is that Richard could hardly bring himself to say law firm. But he said people should stay at home when they anything bad about anyone. That is why he declined to write were needed there. I was amused one night just a few days a memoir of his life, though I constantly urged him to. He was before he died when he was muttering good-naturedly about careful about what he said. He frequently exercised his right how little money he had made practicing law in Texarkana, not to speak. Words were not toys. It was as simple as that. because I knew that he could have gotten rich elsewhere if Another way in which the equanimity that I am trying he had really wanted to. During that same conversation, we to describe showed itself was in Richard’s total lack of af- talked about Southern writers. He looked a little impatient, fectation. I remember once talking to him about William befuddled, perplexed. “They go on all the time about a ‘sense Faulkner. He said, “I don’t like Faulkner. I don’t understand of place,’” he said. “What do you think they mean by that?” “I it.” Of course, he was right: I didn’t understand it either, it don’t know,” I lied, and let it go. He knew the answer. All he was unintelligible; but it was a relief to hear Richard say so. had to do was look inside himself. n He was not given to abstraction, never mistook the obscure for the profound. Published originally in 58 Ark. L. Rev. 481 (2005). Copyright My mother gave me a Bible fifty years ago, and on the in- 2005 by the Arkansas Law Review and Bar Association, Inc. side cover she recorded the scriptural admonition that much Reprinted by permission. 10

Paul T. Cappuccio Esq. Stephen M. Shapiro Esq. Hon. Abraham D. Sofaer IJA Board Executive Vice President Mayer Brown Rowe The Hoover Institution of Directors and General Counsel, & Maw, LLP Time Warner Inc. Hon. Herman J. Weber Jr. Linda J. Silberman U.S. District Court for the Michael V. Ciresi Esq. Martin Lipton Professor of Southern District of Ohio Robins, Kaplan, Miller Law, NYU School of Law & Ciresi, LLP Hon. William H. Webster Hon. Kenneth W. Starr President Emeritus Hon. Paul D. Clement President Emeritus Millbank, Tweed, Hadley (ex-officio) Dean, Pepperdine University & McCloy Solicitor General of the School of Law President United States Arthur T. Vanderbilt Evan R. Chesler Esq. Hon. John M. Walker Jr. Sponsoring Member Cravath, Swaine & Moore, LLP Florence A. Davis Esq. Chief Judge, U.S. Court E. Nobles Lowe Esq. President, The Starr of Appeals for the Former General Counsel Foundation Second Circuit and Vice President, Westvaco Corporation Professor Walter E. Kelly R. Welsh Esq. Dellinger III President Emeritus John J. Parker Duke University School Executive Vice President Contributing Members of Law and O’Melveny and General Counsel, Kenneth R. Feinberg Esq. & Myers, LLP The Northern Trust Company Feinberg Group, LLP

Vice President and Hon. Harry T. Edwards Hon. Kimba M. Wood Michael J. Moroney Esq. Executive Co-Director U.S. Court of Appeals for the U.S. District Court for the Honorary Consul General, Samuel Estreicher District of Columbia Circuit Southern District of New York Consulate of the Republic Dwight D. Opperman of Palau Professor of Law, Hon. Robert A. Katzmann Diane L. Zimmerman NYU School of Law U.S. Court of Appeals Samuel Tilden Professor Regular Membership for the Second Circuit of Law, NYU School of Law Hon. Carol Bagley Amon U.S. District Court for the Hon. Judith S. Kaye Hon. Rya W. Zobel Eastern District of New York Chief Judge, Court of Appeals U.S. District Court for the of the State of New York District of Massachusetts Hon. E. Reilly Anderson Supreme Court of Tennessee Thomas C. Leighton Esq. West Group IJA Members Hon. Nancy Friedman Atlas U.S. District Court for the (as of November 1, 2005) Secretary and Martin Lipton Esq. Southern District of Texas Executive Co-Director Wachtell, Lipton, Rosen & Katz Life Members Oscar G. Chase Hon. Marc T. Amy Hon. Daniel A. Barker Dwight D. Opperman Esq. Russell D. Niles Professor Court of Appeal of Louisiana Court of Appeals of Arizona, Chair, Key Investment, Inc. of Law, NYU School of Law for the Third Circuit Division One Carter G. Phillips Esq. Hon. Maurice A. Hartnett III Hon. Rosemary Barkett Hon. Shirley S. Abrahamson Sidley, Austin, Brown Supreme Court of Delaware U.S. Court of Appeals Chief Justice, Supreme Court & Wood, LLP of Wisconsin for the Eleventh Circuit Hon. Thomas Homer Richard L. Revesz Appellate Court of Illinois Hon. Anne Elizabeth Barnes Donald B. Ayer Esq. Dean and Lawrence for the Third District Court of Appeals of Georgia Jones Day King Professor of Law, Sheila L. Birnbaum Esq. NYU School of Law Hon. Stewart G. Pollock Hon. William G. Bassler Supreme Court of New Jersey U.S. District Court for the Skadden, Arps, Slate, Hon. Barbara J. Rothstein (Retired) and Riker, Danzig, District of New Jersey Meagher & Flom (ex officio) Scherer, Hyland & Perretti Peter Buscemi Esq. Director, Federal Judicial Center Hon. Carlos T. Bea Morgan Lewis & Bockius LLP U.S. Court of Appeals for the Ninth Circuit 11

Hon. Carol A. Beier Hon. Robert T. Dawson Supreme Court of Kansas U.S. District Court for the Calendar of Events Western District of Arkansas Hon. Rebecca W. Berch For more information on upcoming IJA events, visit our Web Court of Appeals of Arizona, Hon. Morton D. Denlow site at www.law.nyu.edu/institutes/judicial Division One U.S. District Court for the Northern District of Illinois February 28, 2006 Hon. Robert I. Berdon Twelfth Annual Justice William J. Brennan Jr. Lecture Superior Court of Connecticut Hon. Diane Vinson DeVasto on State Courts and Social Justice Court of Appeals of Texas for Hon. Charles Bleil The Honorable Randall T. Shepard, the Twelfth District U.S. District Court for the Chief Justice of the Supreme Court of Indiana Northern District of Texas Hon. Brent E. Dickson This lecture series honors the state judiciary as well as the bed- Supreme Court of Indiana rock of justice under law in the United States. All alumni and Hon. Frederic Block members are invited to attend. U.S. District Court for the Hon. Alexandra D. Eastern District of New York DiPentima March 16–17, 2006 Appellate Court of Workshop on Employment Law for Federal Judges Hon. Theodore R. Boehm Connecticut Co-sponsored by the Federal Judicial Center and the Supreme Court of Indiana NYU School of Law Center for Labor and Employment Law Hon. James K. Donovan Hon. Paul Boland The ninth in a series of workshops for federal trial and appellate Appellate Court of Illinois Court of Appeal of California judges. Interested applicants should contact the FJC to register. for the Second District Sue K. Dosal Summer 2006 Minnesota State Court Hon. Charles L. Brieant Administrator’s Office Training and Education Program for the U.S. District Court for the Chinese Judiciary Southern District of New York Hon. Antoinette L. Dupont The third in a series of programs; for more information on the Appellate Court of 2005 program, see the article on p. 4. This event is co-spon- Hon. James L. Cannella Connecticut sored by Temple University. Court of Appeal of Louisiana for the Fifth Circuit Hon. Andrew S. Effron April 2006 (TBD) U.S. Court of Appeals Bench-Bar Dialogue Charles Carpenter Esq. for the Armed Forces More information will be posted on our Web site as we develop American Academy of the program. Check back for updates. Appellate Lawyers Hon. Craig Enoch Winstead, Sechrest and Minick July 9–14, 2006 Hon. James H. Carter Supreme Court of Iowa Hon. Mike Fain New Appellate Judges Seminar Court of Appeals of Ohio Co-sponsored by the Federal Judicial Center Hon. Eric L. Clay for the Second District Judges with up to four years of experience on the appellate U.S. Court of Appeals bench can apply to the seminar. for the Sixth Circuit Hon. Chief Justice Lance G. Finch SAVE THE DATE! Hon. Frank G. Clement Jr. Court of Appeals August 4, 2006—Honolulu, HI Court of Appeals of of British Columbia Tennessee for the “A Review of the U.S. Supreme Court’s Term” Middle Grand Division Hon. Ezra H. Friedlander Sponsored by the Supreme Court of Hawaii and IJA, Court of Appeals of Indiana in conjunction with the ABA Annual Meeting Hon. Richard R. Clifton for the Second District A panel discussion and reception at the IJA Alumni Meeting U.S. Court of Appeals and Meeting of the Members. for the Ninth Circuit Hon. Susan Peikes Gantman Superior Court of Hon. Mary Catherine Cuff Pennsylvania Superior Court of New Jersey, Appellate Division Barry H. Garfinkel Esq. Skadden, Arps, Slate, Hon. Howard H. Dana Jr. Meagher & Flom LLP Supreme Judicial Court of Maine 12

Hon. Leonard I. Garth Hon. John Michael Guidry Hon. Roderick Ireland Hon. M. Blane Michael U.S. Court of Appeals Court of Appeal of Louisiana Supreme Judicial Court U.S. Court of Appeals for the Third Circuit for the First Circuit of Massachusetts for the Fourth Circuit

Gibson Gayle Jr. Esq. Hon. George C. Hanks Jr. Hon. Renée Cohn Jubelirer Hon. Ronald T. Y. Moon Fulbright & Jaworski L.L.P. Court of Appeals of Texas Commonwealth Court Supreme Court of Hawaii for the First District of Pennsylvania Hon. James G. Glazebrook Hon. Richard M. Mosk U.S. Magistrate Judge for the Andrew D. Hendry Esq. Hon. Joette Katz Court of Appeal of California Middle District of Florida Colgate-Palmolive Company Supreme Court of for the Second District Connecticut Hon. Thomas J. Grady Hon. Andrew J. Higgins Eugene J. Murret Court of Appeals of Ohio Inglish & Monaco, P.C. Hon. Howard H. Kestin Supreme Court of the for the Second District Superior Court of New Jersey, Republic of Palau Hon. Gregory J. Hobbs Jr. Appellate Division Hon. R. Malcolm Graham Supreme Court of Colorado Hon. Dorothy W. Nelson Court of Appeals of Hon. Evelyn Keyes U.S. Court of Appeals Massachusetts Hon. Janice M. Holder Court of Appeals of Texas for the Ninth Circuit Supreme Court of Tennessee for the First District Hon. John M. Greaney Hon. Arthur Ngiraklsong Supreme Judicial Court Hon. Annabelle Hon. Douglas S. Lang Supreme Court of the of Massachusetts Clinton Imber Court of Appeals of Texas Republic of Palau Supreme Court of Arkansas for the Fifth District Hon. James L. Oakes Hon. Steven H. Levinson U.S. Court of Appeals Supreme Court of Hawaii for the Second Circuit

i Contact IJA W. H. Levit Jr. Esq. Hon. Darleen Ortega Godfrey & Kahn, S.C. Court of Appeals of Oregon Visit our Web site at www.law.nyu.edu/institutes/judicial Hon. Jon D. Levy Hon. Diarmuid F. The Dwight D. Opperman Supreme Judicial Court O’Scannlain Institute of Judicial Administration of Maine U.S. Court of Appeals New York University School of Law for the Ninth Circuit 40 Washington Square South, Room 314 Hon. Allen M. Linden New York, NY 10012 Federal Court of Appeal Hon. Thomas R. Phillips of Canada South Texas College of Law Professor Oscar G. Chase Executive Co-Director Hon. Carlos F. Lucero Hon. Marsha M. Piccone (212) 998-6217 U.S. Court of Appeals Court of Appeals of Colorado [email protected] for the Tenth Circuit John H. Pickering Esq. Professor Samuel Estreicher Hon. Harry C. Martin Wilmer, Cutler & Pickering Executive Co-Director Supreme Court for the (212) 998-6226 Eastern Band of Hon. Jaime Pieras Jr. [email protected] Cherokee Indians U.S. District Court for the District of Puerto Rico For information about our upcoming programs, Hon. A. William Maupin membership, and the newsletter, please contact: Supreme Court of Nevada Hon. Donald C. Pogue U.S. Court of Alison Kinney Hon. Judith D. McConnell International Trade Program Coordinator Court of Appeal of California The Dwight D. Opperman Institute of Judicial Administration for the Fourth District Hon. Rosemary S. Pooler New York University School of Law U.S. Court of Appeals for the 110 West Third Street, Room 209 C Hon. Vincent L. McKusick Second Circuit New York, NY 10012 Pierce Atwood Phone: (212) 998-6149 Hon. Loretta A. Preska Fax: (212) 995-4036 Hon. Bernard S. Meyer U.S. District Court for the [email protected] Meyer, Suozzi, English Southern District of New York & Klein, P.C. continued on page 13 Dwight D. Opperman Institute of Judicial Administration New York University School of Law 110 West Third Street, Room 209C New York, NY 10012

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IJA thanks its members for their contributions, which help us to advance the quality of justice in our legal system. Because of IJA members’ support, IJA has offered an unrivaled opportunity for ongoing dialogue between the federal and state judiciary, policy makers, practitioners, academics, and students. IJA is a non-partisan, non-profit organization founded in 1952 at NYU School of Law by Chief Justice Arthur Vanderbilt, who out- lined the following goals: • To promote coherence and predictability in the law and its administration; • To develop high-quality continuing education programs for state and federal judges; • To engage in sustained dialogue among the various sectors of the legal profession; and • To foster research on important public policy issues affecting the administration of justice. The work of the Institute has become ever more critical with the proliferation of federal and state laws, the increasing tendency to resort to the courts to resolve wide-ranging private disputes and social problems, and the concomitant growth in the number of lawyers, courts, and adjudicative bureaucracies. IJA relies on the energy and assistance of its friends to maintain its high standards of service and outreach. A large part of our re- sources is devoted to subsidizing the involvement of judges whose court budgets can no longer allow participation in continuing education programs. In order to meet the needs of our constituencies, we seek your interest, your involvement, and your support.

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