Legendary Corporate Defender Sheila Birnbaum ’65 Is Uniquely Suited to Her Newest Assignment: Own Special Master of the 9/11 Fund

tort à la mode NYU Law faculty are pushing the modernization of one of our oldest legal systems. wikileaks, unplugged Nine experts in law and journalism debate unauthorized disclosures, civil rights, and national security. the next president of egypt? Mohamed ElBaradei (LL.M. ’71, J.S.D. ’74, LL.D. ’04) the magazine of the new york university school of law | 2011 leads in the polls.

a class of her Legendary corporate defender Sheila Birnbaum ’65 is uniquely suited to her newest assignment: own special master of the 9/11 fund. 1957 1962 1982

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A Note from the Dean

Twenty years ago, the Law School magazine made its debut with a cover celebrating 100 years of women at NYU Law. So I am particularly proud to have Sheila Birnbaum ’65 profiled in this issue’s cover feature, on page 28. Her story of defying society’s narrow expectations for women in the ’60s to become one of the most accomplished and respected corporate lawyers in the nation is inspiring. Just days before we photographed her, Sheila was appointed special master of the $2.8 billion September 11th Victim Compensation Fund.

It is a testament to her prodi- over two issues: whether counsel on the Pentagon gious talents and expertise that federal health and safety stan- Papers case, a physicist, and a the Justice Department has dards block private litigation, lawyer involved in the investi- entrusted Sheila to recom- and just how large punitive gation of the leak that exposed pense the rescue workers and damage awards should be. “The CIA agent Valerie Plame’s New York City residents who System Everyone Loves to Hate,” identity—to take part in the are still ailing a decade after on page 12, features professors conversation. The participants the attacks. Jennifer Arlen, Richard Epstein, analyzed what the advent of Mark Geistfeld, Catherine WikiLeaks might mean for First Sharkey, and others whose work Amendment rights, national will undoubtedly have a lasting security, Internet law, and impact on law and society. the press itself. It makes for As dean, one of my priori- thought-provoking and fasci- ties is to build a stronger bridge nating reading. between our students and the We began the year with a federal government. In “Wash- ribbon-cutting for Wilf Hall ington at Washington Square” (see page 98), our state-of-the- on page 10, we highlight lead- art new home for academic ing public figures in federal centers generously supported government who are or have by trustees Leonard Wilf recently been teaching on our (LL.M. ’77) and Mark Wilf ’87. campus. The roster includes Sadly, we close the issue the White House counsels of having suffered more than presidents George H.W. Bush our share of losses. In Faculty the three deans Norman Redlich, University President John Sexton, and and Barack Obama, as well as Focus, page 37, and Alumni Richard Revesz celebrate at the Weinfeld Gala in 2004. appellate judges appointed by Almanac, page 107, we remem- presidents Carter and Reagan, ber Dean Emeritus Norman An active alumna who en- policy experts, and adminis- Redlich (LL.M. ’55), Gerald L. dowed a faculty chair two years trators representing a broad Wallace Professor of Taxa- ago, Sheila was once a tenured political spectrum. I am proud tion Emeritus James Eustice professor at NYU Law as well as to let you know that one, Judge (LL.M. ’58), Professor Emeritus an associate dean. She taught Douglas Ginsburg of the U.S. Howard Greenberger ’54, As- torts, the subject of our aca- Court of Appeals for the Dis- sistant Professor Sarah Woo, demic feature. As many readers trict of Columbia Circuit, will civil rights attorney Charles know, in each year’s magazine be one among five outstanding Conley ’55, and U.N. human since I became dean in 2002, professors to join our full-time rights worker Joakim Dungel we have focused on an area of faculty this academic year. (LL.M. ’07). Among them are law in which I am confident a We introduce this impressive legal legends who committed peer review would say we take group on page 47. half-centuries to their fields, the lead among top law schools. The depth and talent of and, tragically, young lives Past issues have highlighted our faculty and alumni in of great promise cut short. As our programs in international, multidisciplinary fields are we remember them and honor environmental, criminal, and also on display on page 20 in all they accomplished or set clinical law; legal philosophy; our annual roundtable discus- out to do, we redouble our own civil procedure; and admin- sion, “The End of Secrets.” This efforts to make a difference. istrative law and regulatory March the magazine invited policy, as well as the new areas nine alumni and NYU faculty— of law and democracy and law including a former director and security. Torts has become of intelligence analysis for a hotly contested area of law the NYPD, two former ACLU richard revesz senior director of communications Elyse Mall Klayman managing editor The the magazine of the Jeanhee Kim new york university school of law | 2011 creative director David Niedenthal Law School designers Michael Bierman Kara Van Woerden 4 60 Karin Wood 97 senior writer Notes & Around the Atticus Gannaway design coordinator Renderings Law School Julia Lovallo editorial coordinators Noah Cain, Will Yakowicz faculty scholarship editorial adviser Kenji Yoshino, Kevin Davis, Elizabeth Rohlfing and Erin Murphy share contributing editor excerpts from their recent The Queensboro Bridge is Janet Napolitano analyzes Ellen Stark journal articles. Plus, a list renamed for Ed Koch ’48; today’s counterterrorism; contributing writers of 2010 publications by Queen Elizabeth II awards Thomas Adcock, Gretchen Feltes, the full-time faculty. China’s legal growing pains Jennifer Frey, Susan Hansen, Micah Arthur Miller; Irving Picard inspire discussion; NYU Kelber, Duff McDonald, Tania (LL.M. ’67) sues a lot of suits; Law’s part in the Triangle Fire Nguyen, M.P. Nunan, Graham Reed, Nabil Elaraby (LL.M. ’69, is remembered; and more. Larry Reibstein, Alexandra Starr, 77 Denise Topolnicki, Dody Tsiantar, J.S.D. ’71) emerges from the Brad Tucker tumult of the Arab Spring; Student student contributors and more. 107 Martin Chavez ’11, Sara Rosell ’12 Spotlight copy editors Alumni Heidi Ernst, Emma Winter 37 Almanac editorial assistants Jake Epstein, Diana Mergiotti, Facu lty Focus Erin Sanger, Natasha Thalla web editor Jill Rachlin Marbaix The 2011 Annual Survey is web director dedicated to Cass Sunstein; Clayton Gates Stephen Breyer, Caroline Why Benjamin Brafman public affairs officer Moshe Halbertal gives the Kennedy, and others honor (LL.M. ’77) is no celebrity Michael Orey Israeli military ethical guid- the late Edward Kennedy; lawyer; Elena Kagan and photographers Bill Clinton delivers NYU’s Clarence Thomas engage Cover photograph by ance; Dean Richard Revesz Juliana Thomas remembers Dean Emeritus commencement address; with trustees; remembering Eli Northrup ’11 moonlights Mathieu Asselin, Sonia Barrett, Norman Redlich (LL.M. ’55); civil rights attorney Charles Dan Creighton, Mark Finkenstaedt, the ALI honors Oren Bar-Gill as a rapper; Fall Ball photos Conley ’55; donors meet their Phil Gallo, Sam Hollenshead, for his scholarship; and more. (above); and more. scholars (above); and more. Elena Olivo, Gary Parker, Don Pollard, Silvio Serber, Leo Sorel, Juliana Thomas 47 93 Photo retouching by Benjamin additions to 120 Jackson and Tito Saubidet the roster A Chat with... Printed by Full Circle Color The Law School welcomes five Robert Kindler ’80, vice Special thanks to the NYU Photo Bureau and NYU Archives new faculty chairman and global head members, of M & A at Morgan Please send your comments to student scholarship [email protected] including Sujit Laura Trice ’10 argues for Stanley, discusses J.D.s, M.B.A.s, his © 2011 New York University Choudhry, and procedural safeguards in the School of Law. All rights reserved. 53 visiting fac- attorney general’s review of favorite deal, and ulty and fellows. immigration appeals, and how to go with Michael Nadler ’11 examines the flow. the legality of community benefits agreements. 28 Master Defender Consummate products liability defense strategist Sheila Birnbaum ’65 has built a career out of successfully settling complex and mass torts cases. Appointed this May by the Justice Department to be special master of a $2.8 billion 9/11 fund, she will use all her skill, insight, and compassion to compensate thousands of Ground Zero rescue workers and New York City residents who are still suffering the consequences of the attacks a decade later.

On the cover: Sheila Birnbaum standing before Tiles for America, a spontaneous memorial created in Greenwich Village in the aftermath of 9/11.

10 12 20 Capitol Access A Full-Tort Press Plumbing the Depths

Leading public figures from the One of the oldest areas of law A spirited debate ensues when the federal government, including has become cutting-edge as the U.S. Law School magazine invites nine former White House Counsel Supreme Court and leading NYU NYU faculty, fellows, and alumni Robert Bauer and federal appeals Law tort scholars and teachers, with expertise in journalism, con- court judge Douglas Ginsburg, including Richard Epstein, Mark stitutional law, and Internet law to bring their political, administrative, Geistfeld, Catherine Sharkey, and meet at the junction of free speech, regulatory, and judicial expertise others, weigh in on a central issue: freedom of the press, national to NYU Law’s classrooms. How can we best keep people safe? security, and WikiLeaks. Notes & Renderings

For Bringing “Clarity to the Law” “[I]t would be counter- Making Law School productive and indeed The Lynde and Harry Bradley futile to try to target all Foundation recognized Richard natural resource damages Epstein, Laurence A. Tisch Possible for All restoration efforts exclu- Professor of Law, as one of four sively on seeking to undo people to receive the 2011 Bradley ponsors for educational opportunity (seo) honored the adverse effects of the Prize, which includes a $250,000 NYU Law for supporting the organization’s mission BP spill, and nothing stipend, from the Lynde and of helping students from underserved communities beyond that.” Harry Bradley Foundation. Ssucceed in college and the workforce. “Richard Epstein’s contribu- In accepting the award in April, Dean Richard Revesz said, tions to his students’ understand- University Professor “SEO’s mission aligns with the Law School’s longstanding coming of so many areas of the law Richard Stewart, are immeasurable,” said Michael mitment to supporting students from all backgrounds, in order who prosecuted Exxon for the Grebe, president and chief execu- to create more diverse classrooms, courtrooms, boardrooms, Exxon Valdez oil spill when he was tive officer of the foundation. law firms, and public and private institutions.” Founded in 1963, an assistant attorney general in “His research, teaching, and writ- SEO offers educational and career programs to hundreds of the Justice Department, testified ing have brought clarity to the before the National Commission high school and college students and law and have helped to advance on the BP Deepwater Horizon young professionals annually. The Law freedom.” Oil Spill and Offshore Drilling on School’s association with SEO began The Bradley Foundation’s mis- September 28. He laid out the sion is to support limited govern- when Peggy Cooper Davis, John S.R. key legal issues the government ment; a dynamic marketplace for Shad Professor of Lawyering and Ethics, faces in seeking justice against economic, intellectual, and cultural adapted NYU Law’s acclaimed Lawyer- BP for its disastrous spill in the activity; and the defense of Ameri- ing Program to train SEO interns dur- Gulf of Mexico. can ideas and institutions. ing the summer. At the awards presentation, Revesz noted that a variety of programs at the Law School share the same objec- Moral Support tive, including TRIALS (Training and When the Nobel Peace Prize was Recruitment Initiative for Admission awarded in Oslo last December, the to Leading Law Schools), a partner- medal was placed on an empty chair ship with Harvard Law School and the on the stage. The intended recipient, Advantage Testing Foundation to assist Chinese pro-democracy activist Liu college students from underrepresented communities who are Xiaobo, remained in a Chinese prison, interested in going to law school, and the AnBryce Scholarship where since 2009 he has been serving an 11-year sentence for Program, which provides full-tuition scholarships to outstand- “inciting subversion of state power.” His wife, Liu ing J.D. students who are among the first in their family to Xia, was under house arrest. For the first time in pursue a graduate degree. “I truly believe in this approach to 75 years, no one was present to receive the award. education,” Revesz concluded, “and I am thrilled that NYU can But Liu did not lack for supporters in the help make a difference through programs like yours.” hall. Sharon Hom ’80, executive director of New York–based Human Rights in China (HRIC), had been invited to attend. HRIC has published A Silver for Being Green English translations of Liu’s essays, as well as documents related Renovated by NYU Law in 2008–09 to to his case, and has for years sought to bring international atten- nn house the Straus Institute for the Advanced tion to his imprisonment. Study of Law & Justice, the Tikvah Center Reacting angrily to the announcement of the peace prize, ppra n O for Law & Jewish Civilization, and the Jean China suspended trade negotiations with Norway and led a Monnet Center for International and Re- boycott of the ceremony. But Hong Kong–born Hom believes that

gional Economic Law & Justice, the historic 2010n Ke/

the prize may compel a positive reaction, too. A group of Chinese io 1830s brick townhouse at 22 Washington t da

Square North has earned a coveted silver party elders has called for an end to restrictions on expression, n rating from the U.S. Green Building Coun- for example, and more activists are speaking out. “The Nobel cil’s Leadership in Energy and Environmen- Peace Prize has generated a game-changing process,” Hom told tal Design building certification system. the Christian Science Monitor. “There are voices within the party

who are now going public.” The© Nobel Fou

4 NYU SCHOOL OF LAW notes & renderings Since December 2008, when he Picard filed suits in became the court-appointed trustee 1,050 30 countries seeking for the liquidation of Bernard Madoff Investment Securities, Irving Picard $90 billion, including (LL.M. ’67), partner at Baker & $19 billion from JPMorgan. Hostetler, has been busy. His team responded to: He has recovered $8.6 billion 5,200 e-mails of the and 7,100 hotline $17.3 billion A Bloom in the calls from Madoff Irving Picard in principal lost in customers and claimants. the fraud. Arab Spring As of March 31, 2011 By the Number$ As of July 28, 2011 In the unprecedented turmoil produced by the Twitter revolution in the Middle East and Africa, Egyptian Nabil Elaraby A Tale of (Two Trials in) Two Cities (LL.M. '69, J.S.D. ’71), a former judge in the International Court University Professor Joseph Aside from the author’s na- Later that month in Stras- of Justice, has emerged as a con- Weiler saw both sides of a Eu- tionality, the only French con- bourg, Weiler was rewarded fident leader. One month after ropean courtroom this year— nection was that the review for standing up in support the ouster of President Hosni and twice emerged victorious. could be accessed online of another freedom: Italy’s Mubarak, the youthful opposition As a defendant, Weiler, in France. Experts right to display crucifixes in coalition behind the uprising pro- Joseph Straus Profes- feared that a guilty public classrooms. Weiler had posed Elaraby as foreign minister. sor of Law, enjoyed a not verdict could have made argued the case pro bono the Accepting the appointment, guilty verdict in a closely anything published online previous June. In a decision Elaraby quickly proved popular watched libel trial. As coun- a potential target for crimi- Weiler characterized as “a among his people—while causing concern in Israel and the sel, he argued and won a nal prosecution, producing a rejection of a one-size-fits-all Western world—by reopening landmark ruling on religious chilling effect on freedom of Europe,” the Grand Chamber the border crossing between symbols. expression worldwide. In its of the European Court of Hu- Egypt and Gaza, brokering the Weiler’s legal odyssey March ruling for Weiler, the man Rights ruled in favor of reconciliation of Palestinian began after a review of Karin Tribunal de Grande Instance Italy. “Europe,” Weiler said, “is factions Hamas and Fatah, and Calvo-Goller’s The Trial Pro- de Paris characterized the special in that it guarantees at urging humanitarian intervention ceedings of the International lawsuit as forum shopping the private level both freedom in Libya. But just weeks into this Criminal Court: ICTY and and deemed the review of religion and free- post, he was tapped again, to ICTR Precedents appeared on legitimate criticism. dom from religion lead the 22-member Arab League a book review website he ed- Following the ver- but does not force as secretary-general, breaking a its. Unhappy with the review, dict, Dean Richard its various peoples standoff that threatened Egypt’s leadership position in the region. Calvo-Goller asked that it be Revesz said, “We are to disown in its “I am taking this difficult task at removed. When Weiler de- so proud of our republic spaces what a time when the Arab nation is clined, Calvo-Goller, a French markable colleague, for many is an im- going through many problems,” citizen living in Israel, filed a who stood firm for portant part of the Elaraby said in a speech. “This criminal complaint in France the cause of intellec- history and identity is the toughest assignment against him. tual freedom.” of their states.” I will have.” But Don’t Call Him Sir Queen Elizabeth II has named University Professor Arthur Miller a ermid D c Commander of the Order of the British Empire (CBE), one of the United M Kingdom’s highest honors. The Order of the British Empire recognizes n da distinguished service to the arts and sciences, public services outside re n B

S/ the Civil Service, and work with charitable and welfare organizations of ER T all kinds.” Miller’s service to the United Kingdom includes his 2010 gift of more than 1,800 Japanese woodblock prints by 19th-century artist Utagawa icard: REU icard:

p Kuniyoshi to the American Friends of the British Museum. For more than 20 years, he also moderated Hypotheticals, a series of high-level panel

mr Nabil mr discussions aired on the BBC, modeled on the PBS Fred Friendly dialogues A

o/ Miller moderated in the U.S. t

ho More important is the question of what to call him. “I am one rank in P

AP the Order below knighthood, so ‘Sir’ is inappropriate,” says Miller. y: y: “I am two ranks above the Beatles as a group, however.” A ra B E l

WWW.LAW.NYU.EDU 5 Bruce McBarnette ’83 won a gold medal in the high jump for One for men 50 to 54 years old at the World Masters Track and Field “Since we believe that the most fundamental Championships held at Hornet Stadium at California State rights should remain with the Books University in Sacramento. McBarnette has won eight world prisoners even during their track and field championships and incarceration, the notion that A federal jury awarded $1.3 24 USA national champion- this one we can take away billion in damages to Oracle, ships for his age group just because it seems to be a software company repre- easy to do it is, I think, in the high jump. sented by David Boies (LL.M. a serious mistake.” ’67), in a copyright infringement case. Oracle’s rival SAP, a German software maker, University Professor admitted that a subsidiary jeremy waldron had stolen thousands of copies testified before U.K. Parliament’s of Oracle’s software and mate- Joint Committee on Human Rights rials, but it was willing to pay on March 15. He reacted to the only $40 million in damages. European Court of Human Rights’ November 2010 ruling that the Only a day after Boies’s final U.K. was violating the European arguments last November, Convention on Human Rights by the jury sided with Oracle barring prisoners from voting. and came close to the $1.7 billion he recommended for damages. The amount is the “If the planet has a lawyer, it’s John Adams.” largest-ever jury award in a copyright-infringement case— Quoting from Rolling Stone magazine, President Barack Obama bestowed a 2010 Presidential the next-largest was $136 Medal of Freedom, the nation’s highest civilian honor, on former adjunct professor John Adams. million in 2002. “We had the Adams co-founded the Natural Resources Defense facts, and we had the law,” Council in 1970 and has dedicated a career of over 40 Boies told reporters. years to environmental law. He taught for 26 years as an adjunct faculty member at NYU Law, where he created the Environmental Law Clinic in which students to this day work under the supervision of NRDC attorneys. $1.3 billion “Four decades ago, when there was no such thing as 2011 environmental law in our country, when pollution was so severe and commonplace that rivers caught on fire, it took extraordinary vision to even imagine $136 million the modern-day environmental movement and its 2002 place in our society,” said NRDC President Frances Beinecke in a statement from the organization. Recognition for Competition The U.N. Conference on Trade and Development model law ranging from system design to (UNCTAD) recognized five former LL.M. stu- mergers to abuse of dominance. dents for their work on revisions to commentar- The five students, who earned their LL.M. ies to Model Law on Competition, which suggests degrees in Spring 2010, were a kind of mini-U.N. good principles and alternative approaches for themselves, each hailing from a different coun- developing countries’ competition law. try: Simon Peart (New Zealand), Felipe Serrano Last year Hassan Qaqaya, head of UNCTAD’s Pinilla (Colombia), Denise Junqueira (Brazil), Competition Law and Policy and Consumer Tone Oeyen (Belgium), and Apostolos Gianna- Protection Branch, asked Eleanor Fox '61, Walter koulias (Greece). They are thanked in the official J. Derenberg Professor of Trade Regulation, for UNCTAD document that incorporates their assistance on the revisions. Fox took the assign- work, and all were also invited to attend the Sixth ment into her International Competition Law: Review Conference of the UNCTAD competition Globalization and Developing Countries Seminar principles in November in Geneva, where last spring, and the five students volunteered to the document including their focus their research papers on the task. work was adopted. They also worked as a team to draft commentaries on sections of the notes & renderings Crushing One Man’s Catch-22 The Immigrant Rights Clinic won a seven-year battle on June 1 The Power of a Good Story when U.S. Immigration and Customs Enforcement (ICE) an- Described by the Los Angeles Times as a “mixture nounced it was dropping deportation efforts against Mohammed of showbiz memoir, academic tutorial, and self-help Azam, who was caught in bureaucracy exacerbated by post-9/11 manual,” the third book by famed Hollywood producer concerns about Muslims. Peter Guber ’67 (LL.M. ’68), Tell to Win: Connect, Persuade, In 2003, Azam complied with a new federal requirement, and Triumph with the Hidden Power of Story, quickly now discontinued, that Arab and Muslim men register with topped the best-seller list after its March release. In an the authorities. He immediately faced deportation for having appearance on Charlie Rose, Guber pointed out that an expired visa, even though his family had applied for permanent resident status in 2001 that would be granted to the other storytelling comes naturally. “People think that members of Azam’s family in 2007. This winter, an immigration LinkedIn and MySpace and Facebook and Twitter judge ruled that Azam should not have to pay the price for the created social cohesion,” he said. “No, no, we created government’s slowness. The judge ruled that Azam’s deportation social cohesion around the campfire for 40,000 years. proceedings should cease and that he should become a perma- They just exploited it.” nent resident. The government, however, proceeded to appeal. In response, the clinic got creative, obtaining letters supporting Azam signed by more than two dozen government officials and neighborhood advocates, and inviting media response. The New York Times published a story in May about Azam’s long ordeal in which Manhattan Borough President Scott Stringer said that Azam “is what our country is all about. For ICE people to dig in their heels, I think, is just outrageous.” The day after the article appeared, ICE dropped its case. Over the past seven years, 11 clinic students have represented Azam: Kelli Barton ’10, Briana Beltran ’11, Arlen Benjamin- Gomez ’06, Annie Lai ’06, Sonia Lin ’08, Benjamin Locke ’11, Hena Mansori ’06, Roopal Patel ’11, Anna Purinton ’09, Camilo Romero ’12, and Jennifer Turner ’06. “One of the things this case illustrates Honored for Daring to Help is the kind of high-level lawyering that happens in our clinic,” says The Ford Foundation honored Profes- the clinic’s supervisor, Nancy sor Bryan Stevenson this spring with Morawetz ’81. “Without this kind of one of its 12 Visionaries Awards for advocacy, this client might well have social innovators. been deported a long time ago.” The $100,000 prizes were created this year to mark the Ford Founda- tion’s 75th anniversary. “Through these awards, we want to highlight the unheralded work of thousands of courageous leaders whose lives are devoted to improving systems and institutions so that all people have a voice in the decisions that affect their lives,” said Luis Ubiñas, president of the Ford Foundation. “These 12 individuals represent the courage, commitment, and innovative thinking of all the remarkable people who work on “[T]he Bureau and the Associate Professor samuel the frontlines of social change.” federal government ought to rascoff testified before The globally dispersed honorees include a Peruvian indig- the Senate Committee on be leveraging much more effec- enous women’s rights leader and a Kenyan political cartoonist. Homeland Security and tively the know–how of local police edux

R Stevenson was recognized for “challenging the injustice of / Governmental Affairs officers, who after all know their s on February 15. He terrain intimately, have lived and worked poverty” through his scholarship and clinical teaching at Time k responded to the in their communities more or less their NYU Law as well as his leadership of the Equal Justice Initiative or findings in the whole lives, and have a distinctive leg (EJI), a nonprofit organization he founded to provide legal rep- committee’s report up on their federal counterparts when it resentation to indigent defendants and prisoners who have been on the November 2009 comes to that kind of anthropological

/The New Y New /The denied fair and just treatment in the legal system. Stevenson n understanding of the world in shooting rampage at has been particularly active on behalf of death-row inmates and Fort Hood and raised the which they operate.” children sentenced to life without parole. Acknowledging the question of the FBI’s proper ohadjeri intelligence role in analyzing award in a statement, Stevenson said he would use the monies hid M hid s homegrown threats. to continue EJI’s efforts, adding, “The opposite of poverty is not

M a wealth—it’s justice.”

WWW.LAW.NYU.EDU 7 Alston Cited by Top European Court In Al-Skeini and Others v. the United Kingdom, the European “The ethical premise of the Court of Human Rights’ Grand Chamber relied on the work of Nuclear Waste Policy Act… was that the current gen- Philip Alston, John Norton Pomeroy Professor of Law, in holding eration had to deal with the that the rights of the families of four Iraqis killed by British forces waste as soon as possible. had been violated by the U.K.’s failure to independently inves- [W]e now realize that we tigate the deaths. “The principal significance of the judgment,” need a more sophisticated Alston says, “was its definitive rejec- approach that leaves options tion of the British government’s posi- open to future generations tion that human rights law did not without unduly burdening apply to the acts of its forces com- them in the process.” mitted overseas, even when it was an occupying force and controlled the Poetry in security situation.” The court quoted at length from a March 2006 report University Professor Brief by Alston when he was U.N. spe- Richard Stewart cial rapporteur on extrajudicial, summary, or arbitrary execu- testified before the Blue Ribbon Many lawyers may believe tions. In it, he asserted that under Article 6 of the International Commission on America’s Nuclear Future on November 15. He pre- their writing is art, but Monica Covenant on Civil and Political Rights, “armed conflict and Youn, senior counsel in the sented a plan to solve the nation’s occupation do not discharge the State’s duty to investigate and nuclear waste disposal dilemma. Democracy Program of NYU prosecute human rights abuses. The right to life is non-derogable School of Law’s Brennan regardless of circumstance.” Center for Jus- tice, has proof. Helping Ignatz, her Crown Heights collection of Mentally Ill poems about Vasuki Sunkavalli (LL.M. ’10) was crowned unrequited Miss Universe India 2011 in July, which will Y outh Get love inspired allow her to compete in the Miss Universe by George pageant in September in Brazil. “I entered Out of Jail Herriman’s the contest like a winner,” said Sunkavalli pre–World as quoted in the Indian press, “so didn’t Former War I comic prepare myself to lose.” She earned her LL.M. Root-Til- strip characters Krazy in international law and human rights, and den-Kern Kat and Ignatz Mouse, was a has worked at the Permanent Mission Sinsheimer finalist for the 2010 National of India to the United Nations and Scholar Book Awards in poetry. Youn at Human Rights Watch. Sara Zier received $1,000 and a medal ’10 is one as one of five finalists out of of 18 people nationwide to 148 submissions. receive a 2011 Soros Justice Fellowship from the Open Society Foundations. Zier will use her fellowship, which includes a stipend of $74,000 to $108,750 over 12 to 18 months, to help young people with mental illnesses avoid incarceration by facilitating their access to mental health care services. Roughly two-thirds of youth in juvenile detention facilities suffer from mental n illness. Zier, who has devel- errima oped a cross-systems advo- e H g e cacy project with TeamChild,

a nonprofit civil legal aid Geor by organization in Washington State, to address this issue, says, “Both the health

care and juvenile justice n From Kat Krazy Mayor Michael Bloomberg signed legislation to rename

New York City’s famed 59th Street Bridge after systems are failing youth t oo

Ed Koch, the city’s 105th mayor, on April 11. with mental illnesses.” car

8 NYU SCHOOL OF LAW notes & renderings Ensuring Food for All Down to Business Seth Harris ’90, deputy secre- abuse and unfair competition. Three months before the Republic of South Sudan established its tary of the U.S. Department of “New policies won’t eliminate independence, David Deng ’10 and Sylwia Wewiora ’11 presented Labor, is at the forefront of the these problems overnight, but reports related to one of the new nation’s most pressing issues, Obama adminis- we can do better by land grabbing, at the International Conference on Global Land tration’s efforts to adapting govern- Grabbing hosted by the Institute of Development Studies at the address the plight ment’s responses University of Sussex. Wewiora presented “Foreign Land Deals and Human Rights: of America’s 14 mil- to change in work- Case Studies on Agricultural and Biofuel Investment,” a 118- lion unemployed places and the la- page report released by the Center for Human Rights and workers, more than bor market,” Harris Global Justice (CHRGJ) in October 2010. Focusing on four case six million of whom said. “But at the studies, the report examines the human-rights dimensions of have been out of a end of the day, re- large-scale land deals, particularly whether the deals ensure job for six months covery must come equitable and sustainable food security, and is based on exten- or longer. In a from the private sive research by Professor Smita Narula, CHRGJ faculty director, keynote at the 64th sector, from invest- and by students in the International Human Rights Clinic, includ- annual Conference ment decisions and ing Wewiora, Deng, Lauren DeMartini ’11, Colin Gillespie ’11, on Labor at NYU hiring decisions by Geoffrey Johnson ’11, and Andrea Johansson (LL.M. ’10). Deng, who spent a postgraduate year as an Arthur Helton Law in June, Har- employers across Global Human Rights Fellow, spoke about the importance of ris described the industries and community consultation in drafting land deals in Southern Sudan. ways in which the across the country, He presented his report, “The New Frontier: A Baseline Survey of administration is and the resilience Large-Scale Land-Based Investment in Southern Sudan,” which grappling with the and resolve of had been commissioned by Norwegian People’s Aid and was problem by pro- American workers. partly funded by a United States Institute of Peace Priority Grant. moting job training They haven’t given and continuing education, up on the promise of a better universal health care, and future. We should not give up worker protection against on them.” The Appellate Advocate’s Apprentice This August, Brian Burgess ’09 began a one-year term as assistant to the solicitor general of the United States, Donald Verrilli. Burgess, a former Furman Fellow, has clerked for Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit and Judge David Tatel of the U.S. Court of Appeals for the District of Columbia Circuit. World Leader “It could hardly be surprising As a student, Burgess worked as a research assistant to both to propose that … workers Dean Richard Revesz and Jacob D. Fuchsberg on Campus need to know about their Professor of Law Barry Friedman. His paper Former British rights under the law, and we “Limiting Preemption in Environmental really have very good reason Prime Minister Law: An Analysis of the Cost-Externaliza- to believe that workers Gordon Brown tion Argument and California Assembly are quite ignorant of their came to NYU rights under the National Bill 1493” from the April 2009 NYU Law Law last Decem- Labor Relations Act.” Review won the Judge Rose L. & Herbert ber to discuss Rubin Law Review Prize. his book, a Aiming for a career in appel- first-hand late advocacy, Burgess called his account of how he pushed his new job an “unparalleled cynthia Estlund, country past the worst of the opportunity”: “Given Catherine A. Rein Professor n financial crisis. University of Law, testified before the House the amazing caliber of President John Sexton, the attorneys in the errima Education and the Workforce

En vo Benjamin F. Butler Professor Solicitor General’s

e H g e Committee’s Subcommittee on of Law, took the opportunity Health, Employment, Labor and office and the

n Suda er Pensions on February 11. She chal- by Geor by s to announce Brown would complex legal

r u r lenged the notion that the National

k become the University’s first issues they con- “distinguished global leader Labor Relations Board’s recent stantly grapple decisions, including a proposal

o by Flic by o in residence," which entails with, I can’t t to require the posting of workers’ ho n From Kat Krazy spending four weeks with rights in the workplace, indicated think of a bet- : P : t oo students and faculty at various a move toward radicalism. ter place to

car n s uda University locations annually. learn the craft.”

WWW.LAW.NYU.EDU 9 Wa s h i n g ton at Wa s h i n g ton Square the highly ordered world of legal theory can seem each teach a 1L course, the Administrative and Regulatory State, this far removed from the hard-nosed, policy-driven ethos of Wash- spring. Judge Ginsburg’s current colleague on the U.S. Court of Ap- ington, D.C. Recently, however, a host of leading public figures peals for the District of Columbia Circuit, Judge Harry Edwards, was from the federal government have bridged that distance by teach- appointed by President Carter. Edwards’s classes elucidate the ap- ing at NYU Law. It’s a golden opportunity for students to learn pellate process as well as the art of decisionmaking from the bench. how things get done in the capital. Hearing stories firsthand of the crafting of major policy initia- The visitors from Washington span political parties and ideolo- tives or of dealing with political heat and a media hungry for a story gies. For example, President George H. W. Bush’s former White not only demystifies federal government, but also allows stu- House counsel C. Boyden Gray focuses his class on how energy dents to imagine themselves in these roles. Martha Roberts ’12, issues affect international security, while Robert Bauer, who a student in Katzen’s seminar last spring, the aptly named stepped down as White House counsel in June, but serves as gen- How Washington Really Works, says, “You get a more complete eral counsel to President Barack Obama’s reelection campaign picture of who affects the regulatory process and the ways you and the Democratic National Committee, teaches a seminar can influence it—through comments or meetings, through on Law and the Electoral Process. Douglas Ginsburg and Sally different jobs. She’s also really good at challenging assump- Katzen, who served as the Office of Management and Budget’s tions that you have about how things should work.” For those administrator of the Office of Information and Regulatory Affairs interested in pursuing government careers, having their eyes in the Reagan and Clinton administrations, respectively, will opened also may simply open doors.

nc. erties, I p Pro ermission from the M L ited. ited. b rohi og.2007© A rinted with p l p imes B T l ermission is p is ermission hoto is re : Lega his p n al ement: T aw Jour aw ication without p ication pl al L n al he Natio urther du urther edition of T P Photo/Lawrence Jackson; Cl 9, 2007 l rights reserved. F reserved. rights ri Bauer: A All Ap

10 NYU SCHOOL OF LAW Neil Barofsky ’95 ➤ faculty focus Robert Bauer ➤ Special Inspector General White House Counsel, of the Troubled Asset -- Relief Program, 2008-- 11 2010 11 course: course: Government Responses to the Seminar on Law and Financial Crisis Seminar the Electoral Process

➤ ➤ Harry T. Edwards

➤ ➤ Paul Clement Senior Circuit Judge, Chief Judge Emeritus, U.S. Court U.S. Solicitor General, of Appeals for the District 2005-- 08 of Columbia Circuit course: courses: The Art of Supreme Court Seminar Appellate Decisionmak- ing; Federal Courts and the Appellate Process

Ezekiel Emanuel ➤ Regulars on the Special Advisor for Health Policy to the Director of Acela Express the White House Office of Management and Budget, Nine distinguished federal public servants who have 2009--11 recently taught or are currently teaching as adjunct or visiting professors, and a sampling of their courses. course: Health Law

Policy Seminar ➤ ➤

Kenneth Feinberg ’70 ➤ Douglas H. Ginsburg Administrator of the Judge, U.S. Court of Gulf Coast Claims Facility; Appeals for the District Special Master of of Columbia Circuit September 11th Victim Compensation Fund, course: Readings in -- Legal Thought Seminar; 2001 04 Administrative and course: Mass Torts Regulatory State

Sally Katzen ➤ C. Boyden Gray ➤ White House Counsel, Administrator of the Office of -- Information and Regulatory 1989 93 Affairs, 1993-- 98 course: Law and Policy Seminar on Energy, course: How Washington Environment and Really Works Seminar; Security Administrative and Regulatory State WWW.LAW.NYU.EDU 11 eginning in late 2002, Wyeth Pharmaceuticals was hit The litigation is still far from over. Yet thanks to Birnbaum’s ef- with a torrent of lawsuits brought by women who alleged forts, said Pfizer in-house attorney Malini Moorthy last May, the that its two controversial hormone-replacement-therapy momentum, at least for now, is no longer so heavily on the plain- drugs Prempro and Premarin had caused them to develop tiffs’ side. “I don’t want to tempt fate, but it’s fair to say the pendu- breastB cancer. Although scientific studies suggest a higher risk lum has swung,” says Moorthy. “We’ve evened up the game.” of breast cancer from hormone therapies, they are not conclusive, Impressive as this turnabout has been, it is what clients expect especially when it comes to particular drugs. Nonetheless, plain- from the 71-year-old Birnbaum, who has spent much of her career tiffs who had taken their cases to trial were winning staggering jury helping corporate defendants resolve their most difficult and costly awards, including compensatory and punitive damages totaling litigation problems. Take Dow Corning’s leaky silicone gel breast more than $134 million to three plaintiffs in Nevada state court in implants, W.R. Grace’s asbestos contamination, or State Farm’s liti- 2007 (a judge reduced the total award to $58 million in 2008), and gation involving claims arising from Hurricane Katrina. Birnbaum $75 million in punitive damages to a single plaintiff in a Pennsyl- has played an integral role in defending and settling them all, not vania court in fall 2009 (later reduced to $5.6 million). to mention countless other major mass torts cases involving ev- Despite these liabilities Wyeth was in the midst of being ac- erything from salmonella contamination to toxic spills to alleged quired by Pfizer. So by late 2009, when the $68 billion deal had injuries from cell phones. closed, Pfizer had inherited a full-blown litigation nightmare: Most recently, Birnbaum was tapped by U.S. Attorney General Plaintiffs had racked up a 10-to-three record of trial wins and Eric Holder to serve as the special master of the revived September were clearly on a roll. With 10,000 cases still to be litigated, Pfizer, 11th Victim Compensation Fund. She is charged with distributing the world’s largest pharmaceutical company, had to take deci- $2.8 billion to compensate Ground Zero rescue workers and New sive action. The company brought in a new team that included York residents who have suffered debilitating health problems in its longtime outside counsel, Sheila Birnbaum ’65, a top prod- the aftermath of the World Trade Center attacks. This exceedingly ucts liability defense specialist who is partner and co-head of the difficult and public role complements the one she held between Mass Torts and Insurance Litigation Group at New York-based 2006 and 2009, when she successfully mediated settlements to- Skadden, Arps, Slate, Meagher & Flom. taling $500 million for 92 of the 95 victims’ families who chose to Setting her sights on defense strategy, the five-foot-two-inch litigate their claims instead of accepting compensation through Birnbaum did what she typically does in the high-stakes, bet-the- the original 9/11 fund, administered by Kenneth Feinberg ’70. (For company cases she handles: She shrewdly surveyed the scope more, please read “An Interpreter of Maladies” on page 32.) of the litigation, then pro- Knowing how and when to settle headline-making cases like ceeded to devise a game these have elevated Birnbaum to the pinnacle of the legal profes- plan for stepping up settle- sion. She has been called a “legal genius,” a “lawyer’s lawyer,” and ment talks while also chal- the undisputed “Queen of Torts.” She routinely comes in near the lenging the plaintiffs’ scien- top (if not at the top) of the products liability defense bar in law- tific evidence to strengthen yer rankings by Chambers, Who’s Who, and other legal industry Pfizer’s hand at trial. publications. And when the National Law Journal assembles its

By fall 2010, Pfizer had secured three straight trial wins, with ju- picks for the 100 most influential lawyers in the country, or when ries in Pennsylvania, Virginia, and Arkansas finding that plaintiffs Fortune and Crain’s New York Business choose the most powerful Chad failed to proveLOSER either that Prempro or Premarin had caused national and local women business leaders, Birnbaum’s name is their breast cancer or that they had received inadequate warn- invariably on the list. ing of the drugs’ risks. What’s more, the federal judge overseeing “On every type of serious matter, Sheila is my secret weapon,” multidistrict litigation proceedings in Arkansas recently barred says Eve Burton, general counsel of Hearst Corporation, a longtime the testimony of a few of plaintiffs’ key scientific witnesses who client of Birnbaum’s. Even Zoe Littlepage, a lead plaintiffs’ attorney claimed these types of hormone-replacement therapies can cause in the Prempro and Premarin litigation, says she can’t help but cancer, deeming their testimonies insufficiently reliable or rele- admire Birnbaum’s prowess as a tactician and the artful way she vant. As a result, dozens of cases were dismissed or settled. All told, plots and maneuvers to ad- as of July Pfizer has managed to either knock out or settle some vance her clients’ goals. So by Susan Hansen 3,300 suits, roughly a third of its caseload. much so that at their first Portrait by Juliana Thomas

28 NYU SCHOOL OF LAW When Fortune 500 companies are facing a massive wave of complex products liability or toxic torts cases, they call on Sheila Birnbaum ’65—master defense strategist, former law professor, and the Justice Department’s new special master of the September 11th Victim CLOSER Compensation Fund.

WWW.LAW.NYU.EDU 29 meeting Littlepage immediately went up to shake Birnbaum’s and weekends from her homes on Manhattan’s East Side and in hand. “She’s a legend,” says Littlepage. “I told her, ‘I finally got to East Hampton. She also maintains a sometimes grueling travel meet the master puppeteer.’” schedule: In one recent monthlong stretch, Birnbaum hopscotched Indeed, over more than four decades, as both a law professor between London (for a critical arbitration), Philadelphia (for oral and practicing attorney, Birnbaum has not only set standards arguments in a key appeal), and Little Rock (for a crucial hearing in and practices that helped to pioneer the practices of products li- the Prempro multidistrict litigation proceedings) before returning ability and mass torts law. She has also blazed a path for women in to Skadden’s Manhattan offices, packing in three full days, then the profession as a top rainmaker and longtime leader at Skadden, jumping on a plane to Phoenix, where she helped lead a Sedona one of the world’s biggest law firms, with 2,000 lawyers around the Conference panel discussion on mass torts and punitive damages. globe and $2 billion–plus in annual revenue. She has even argued Despite her devotion to her job and her climb to the top of and won two Supreme Court cases, including State Farm Mutual megafirm Skadden, Birnbaum defies the stereotype most people Automobile Insurance Co. v. Campbell et al., a landmark 2003 de- have of the diehard corporate lawyer. For one, although she fights fense victory in the long-running battle over punitive damages. to restrain punitive damages—which aligns her with Republican “Pretty good for a torts lawyer,” quips Birnbaum. reform efforts—she is a reliable Democratic voter. And although she is a fierce defender of her clients, she has also earned the re- isiting Birnbaum’s office at Skadden’s 4 Times Square head- spect and affection of members of the plaintiffs’ bar, among them Vquarters, one sees the usual signs of a successful senior part- Christopher Seeger, co-founder of Seeger Weiss, who considers ner and rainmaker. There is the 42nd-floor view of downtown Birnbaum a mentor and has sought her advice on cases in which Manhattan, including a dramatic close-up of the Empire State her clients were not involved. She is known as a consensus-builder Building’s upper reaches. Papers and overstuffed file folders are as well as an excellent listener who is generous with her time and piled on nearly every horizontal surface. On the coffee table is the advice for younger attorneys. “She’s old-school in the way she rel- odd tennis trophy amid a small village of gleaming crystal recog- ishes her role as a lawyer and a teacher,” says Skadden products nition and appreciation awards. Hanging on the walls, stacked on liability partner Mark Cheffo, who adds that Birnbaum often urges the floor, and propped up on a credenza are dozens of framed Wall him and other veteran lawyers to bring junior associates along to Street Journal, New York Times, and legal journal newspaper arti- key depositions and hearings. cles, plus plaques and awards from women’s groups, Jewish groups, Friends and colleagues add that there’s nothing affected, showy, schools, and professional organizations. She has a mounted Lou- or self-important about her. “With Sheila, there’s no pretense and isville Slugger on a windowsill—a souvenir from a conference in no big ego to be assuaged,” says Matthew Mallow ’67 (LL.M. ’68), Kentucky—along with a delightfully odd alligator sculpture with a former Skadden partner and longtime friend. Indeed, although the words “Lady Litigator” painted on it. Here and there are photos, she can certainly afford to be extravagant, Birnbaum still balks including a snapshot of Birnbaum with a beaming Supreme Court at paying exorbitant prices for first-class air travel, using her fre- Justice Sandra Day O’Connor. quent-flier miles to upgrade instead. This frugality harks back to Most days Birnbaum gets to this office before 8:00 a.m. and Birnbaum’s childhood in a lower-middle-class section of the Bronx. works until 7:00 p.m., then logs additional hours during nights Even her voice, surprisingly sweet, almost girlish, has an accent that still hints of her old neighborhood. “Like they say, you can take the girl out of the Bronx, but you can never take the Bronx out of the girl,” says Barbara Wrubel, a recently retired Skadden partner reaching for the stars who is one of Birnbaum’s closest friends. “She really is still Sheila Birnbaum, age 4; in the second row, from the Bronx.” far right, with her sixth grade class; Birnbaum’s sixth grade autograph he eldest of three children, Birnbaum, who was born Sheila book, in which she lists her career TLubetsky, grew up in the mainly working-class, southeast sec- aspiration as “lawyer.” tion of the borough, the kind of old-style New York neighborhood Birnbaum often urges veteran lawyers to bring junior associates along to key depositions and hearings: “She’s old school in the way she relishes her role as a lawyer and a teacher.”

Birnbaum majored in history with a minor in political science at Hunter College. When she took a law survey course covering torts, property, and criminal law, she says the subject instantly clicked with her and helped crystallize her elementary-school dream of being a lawyer. “It was clear to me that I wanted to go to law school,” says Birnbaum, who also participated in a mock World Court at Hunter and loved the complexity of the issues and the debating. The problem was that women at the time weren’t supposed to go to law school or become attorneys. They were expected to get mar- family matters ried as soon as possible, and if they had to work, being a teacher With her father, Louis, was about the only socially acceptable option. “It’s hard to imagine circa 1980; the Hunter the pressure we were under to go into teaching,” says Birnbaum, College graduate, in who remembers feeling as if her only choice was to go with the flow. 1960; with her mother, Thus, a week before she graduated cum laude from Hunter in Belle, brother Paul, and May 1960, she married Bernard Birnbaum, an accountant. And his family, circa 1992. that fall she started a job teaching fourth grade at P.S. 62 in the South Bronx, several miles from where she grew up. “Everybody was going to teach, so that’s what you did,” says Birnbaum. “That’s what was expected.” Birnbaum liked her students, but from the start it was clear that where mothers yelled out apartment windows and kids spent teaching fourth-graders just didn’t provide the kind of intellec- summer days playing stickball in the streets. Birnbaum could be tual challenge she was looking for. She took night classes at Hunter, counted on to join in. “I was a tomboy,” she says. “I didn’t like dolls.” where she got an M.A. in history. But her dream of becoming a Her parents, Belle and Louis Lubetsky, didn’t make much lawyer kept nagging. So late in 1962, she finally decided to quit her money from the small grocery store they ran in Harlem. And space job. In the new year, she enrolled at New York University School of in the two-bedroom apartment that Birnbaum’s family shared Law in a program that allowed her to finish in two and a half years with her grandmother (and sometimes an aunt) was definitely by taking courses continuously, without summer breaks. She was tight. But Birnbaum says she never really wanted for anything and one of just 13 women in her class of 360 students. recalls a safe, carefree childhood. The very month after she matriculated, February 1963, the wa- Though neither of her parents had gone to college, and her Rus- tershed book The Feminine Mystique, by Betty Friedan, helped sian immigrant father hadn’t finished high school, they were big ignite the feminist movement. For Birnbaum, the bestseller was believers in the American Dream and were determined that their an affirmation that she could really have the kind of career she children would get a better education than they had. Birnbaum knew she wanted. “It really crystallized the fact that you could be was a standout student at P.S. 50, and though she says she wasn’t a woman and have a life,” recalls Birnbaum. at “the top of the top” of her classes, she apparently made a strong Though some men would certainly have been threatened by enough impression that when her brother Paul, who’s 10 years her their wife making such a bold move, Birnbaum says her husband, junior, came along, teachers would still gush over Sheila. “They’d who also was taking classes at Brooklyn Law School at night, was all say, ‘Oh, you’re Sheila Lubetsky’s brother,’” says Paul. “I’ve been encouraging. Even so, Birnbaum says, the two were “growing following in her footsteps all my life.” apart.” Within two years after she started at NYU Law, they de- Birnbaum isn’t sure where she first got the notion that she’d like cided to divorce. to be a lawyer. Growing up, she says her family didn’t know any attorneys, much less any women attorneys, nor does she remember t NYU Law, Birnbaum excelled in her classes and developed reading books or seeing television shows or movies about lawyers. A a clear interest in litigation. She jumped at the chance to test Yet somehow when she filled in the space for My Favorite Profes- her oral argument skills in moot court competition. It turned out to sion in her sixth-grade autograph book, she wrote down “lawyer.” be a fortuitous move: Birnbaum and her team not only won handily, The only explanation that Birnbaum can think of is that she might but the hypothetical case happened to focus on the then-nascent have been inspired by one of the current events discussions that a area of products liability law, in the wake of a landmark 1963 deci- favorite teacher, Mrs. Stahl, used to lead. sion by the California Supreme Court in Greenman v. Yuba Power There were some other early signs that she might be cut out for Products. That ruling set forth the doctrine of strict liability for de- courtroom combat, however. Her brother Paul recounts the time fective products, thus making it far easier for purchasers of those when a neighborhood bully started harassing her. Birnbaum’s goods to pursue damages regardless of whether the manufacturer mother, who caught the action from the window of the family’s was found to have been negligent or at fault. It was, as Birnbaum apartment, urged her to fight back. Birnbaum, 11 or 12 at the time, recalls, a whole new concept, and she and her team wound up did just that. “She turned around and walloped him,” says Paul. spending the better part of a year debating the parameters of the “He never bothered our family again.” new doctrine and trying to understand how strict liability worked.

WWW.LAW.NYU.EDU 31 “She was always asking questions,” says moot court teammate made it clear in the interview that they had strong doubts about Gorman Reilly ’65, who also remembers her as being very orga- whether she was up to the job. “I remember them asking me what I nized and having a real zest for the law. “She could look below the would do if one of them called from court and needed me to check surface and facts. In making a court presentation, she had a way on a decision right away,” recounts Birnbaum, who responded with of getting to the point and getting [the judges] on the panel to go the obvious answer: She’d simply go to the firm’s library and look along with her arguments.” He adds, “You could just see that she it up. “I think they expected I would fall apart and cry,” she says was really made for this.” with a laugh. After graduating, Birnbaum—with the assistance of a friend In making their offer, according to Birnbaum, the firm’s senior who had a talent for typing—sent out close to 100 letters to law partners also informed her that, at least for starters, she’d be earn- firms around the city before landing an interview and a less-than- ing $1,000 a year less than a man in her position. Birnbaum took enthusiastic job offer from Berman & Frost, a small litigation firm the job anyway. She quickly proved that she knew what she was do- on William Street that handled a mix of plaintiffs and defense-side ing. Within three months, she was making the same salary as her matters. “They weren’t sure they wanted me,” says Birnbaum, who male counterparts, and over time she was given more and more recalls that the firm had never hired a woman lawyer before and responsibility on new matters. Some were simple personal-injury

An Interpreter of Maladies

In May, Sheila Birnbaum ’65 took on what fund, which gave Feinberg an unlimited pool cal praise. On the day her appointment could be the toughest task of her career: of money to draw from, he points out that as special master was announced, Birn- serving as the Department of Justice’s this time Congress authorized a set amount, baum met with a vocal representative of special master for the reopened Septem- which must cover administrative expenses, Ground Zero workers, John Feal. The for- ber 11th Victim Compensation Fund, which too. With a cap on the money she’s able mer construction supervisor had lobbied has provided $2.8 billion to to distribute, Birnbaum will for another candidate but publicly sup- compensate Ground Zero have to deal with the inevi- ported Birnbaum after their face-to-face workers and New York City table perception by claim- discussion. “It was a surprisingly pleasant residents who suffered de- ants that “she’s taking from meeting which got into the issues and I’m bilitating health problems, Peter to pay Paul,” he says. happy with the outcome,” Feal told the Wall or to compensate the fami- “She’s confronting a much Street Journal. “I think this is somebody I lies of those who died as a more difficult set of prob- can work with.” One person who would result of the 9/11 attacks. lems than I faced.” not be surprised that Feal was won over is In announcing her se- Birnbaum said when the Alvin Hellerstein, the federal judge who lection, U.S. Attorney announcement was made appointed Birnbaum as the mediator who General Eric Holder cited that she wants the process settled all but three of the last 95 wrongful Birnbaum’s “extensive experience, cred- to be “fair, transparent, and easy to navi- death and personal injury suits from 9/11, ibility, and unique insight.” She does have gate.” To that end, just a little more than a for a total of $500 million. As he noted in singular expertise, having been the court- month after being named to the role, she his March 2009 final report: “She allowed appointed mediator for the 95 families who released proposed regulations that broad- each of the plaintiffs’ families to express opted out of the original 9/11 fund and were ened the geographic boundaries within their loss and the quality of the lives lost headed to court against the airlines and se- which New York City residents can make on September 11… . She gained plaintiffs’ curity firms. Add her 40-plus years of ex- claims and closed the door confidence. Without her pertly resolving complex torts and Birnbaum on coverage for mental ill- assistance, most of these is distinctly well suited to this role. nesses such as post-trau- cases, in my opinion, Even so, Kenneth Feinberg ’70, the cur- matic stress disorder. True would not have settled.” rent administrator for the Gulf Coast Claims to form, Birnbaum waited Recently, Hellerstein Facility who served as special master of the for a scientific review by the said Birnbaum’s empathy original 9/11 fund, says the job is even more National Institute for Occu- as well as her ability to daunting this time. “She really has her work pational Safety and Health make 9/11 family mem- cut out for her,” he says. before indicating in July that bers comfortable was For starters, Birnbaum has to design the there was too little scien- crucial to that outcome. rules and procedures governing the distribu- tific evidence linking cancer “They had to know that tion of money to claimants, who are likely to the Ground Zero dust and wreckage to they weren’t selling out their loved ones to number in the thousands, with the pay- allow for cancer coverage. The public has cheaply,” says Hellerstein, recalling how out process scheduled to take five years. been given 45 days to comment on the pro- emotionally draining the process was. Much harder will be the task of determin- posal; Birnbaum will release final regulations Clearly, all of Birnbaum’s talents for ing a link between exposure to toxic dust in September; and the fund officially opens bringing closure to huge, complicated—and and debris from Ground Zero and the re- its doors on October 3, 2011. often emotionally charged—litigation mat- spiratory problems and other illnesses that Birnbaum reportedly wasn’t the first ters will come to bear. “If anyone can do this, those who lived or worked around the site choice of the 9/11 workers or downtown Sheila can,” says Feinberg. “I can’t think of have suffered. Finally, unlike with the original residents, but she has since won criti- anyone more qualified to do the job.” S.H.

32 NYU SCHOOL OF LAW and slip-and-fall cases in which she represented plaintiffs. Others, hile Birnbaum was making a name as an expert in products however, happened to involve cutting-edge issues in the young Wliability matters, the dean of Fordham University School of but fast-growing area of products liability law, including a huge Law, Joseph McLaughlin, was seeking to add women to a virtually matter Birnbaum took on in the late 1960s for Syntex Corporation, all-male faculty. In 1974, he made Birnbaum a surprise job offer, and a pharmaceutical company that was facing hundreds of lawsuits she accepted. “Somehow he convinced me,” says Birnbaum, who alleging that its oral contraceptives caused blood clots and strokes. recalls that McLaughlin played heavily on the fact that she’d be The sheer volume of suits was larger than almost any company a pioneer, opening doors for women in the law. had had to fend off before, and though no one at the time called Birnbaum’s detour into academia ultimately lasted a dozen it a mass tort, says Birnbaum, that’s what it was. She and other years—first at Fordham, then at her alma mater NYU Law, where lawyers for Syntex’s co-defendants had to invent a new approach she taught from 1980 to 1986, and served a two-year stint as associ- for managing such large-scale litigation, including setting up a ate dean. Though it has been 25 years since Birnbaum left the NYU national defense team and establishing ways to organize the mas- Law staff, she enthusiastically recalls how much she enjoyed the sive discovery effort and ensure that defense filings across various back-and-forth with her students. “I loved teaching” law students, jurisdictions were consistent. “We were sort of writing the rules,” says Birnbaum, who also appreciated the freedom to study and says Birnbaum, who traveled all over the country attending meet- analyze the quickly evolving products liability landscape in a way ings and hearings in connection with the Syntex litigation. “We that a busy practitioner never could. were starting to create a blueprint for how these kinds of cases “Sheila came and hit the ground running,” says Sylvia Law ’68, would be handled.” Elizabeth K. Dollard Professor of Law, Medicine, and Psychiatry, As more and more states followed California’s lead and adopted who has been on the NYU Law faculty since 1973. Indeed, Law re- the doctrine of strict liability, a new plaintiffs’ bar specializing in calls that Birnbaum not only won the instant admiration of stu- products liability matters emerged. And with consumer advocate dents and colleagues, but also shared some helpful tips with Law Ralph Nader ratcheting up his campaign against defective car and the handful of other women who were still a tiny minority designs and other allegedly unsafe products, plaintiffs’ lawyers on the faculty and sometimes struggled to get the full attention had a host of new targets. It was clear a tidal wave of large-scale litigation was coming. Along with Syntex, Birnbaum also represented Chrysler Motor “Sheila was really ahead of the curve. Corporation in connection with claims that the steering system on its Newport Custom sedan was defective, and she wound up She anticipated where the law taking a lead role in the car giant’s appeal in Codling v. Paglia, a seminal 1973 case that established the doctrine of strict products was going and understood that the liability in New York State. Despite the court adopting strict liabil- changes would require a whole ity, Birnbaum notes that the decision was actually slightly more pro-defendant than in other states. “It was the best a defendant different kind of representation.” could do given the way the law was shifting,” says Birnbaum.

career aptitude Lecturing at NYU School of Law, circa 1980–86; with then-New York Attorney General Robert Abrams ’63 when she received an award from the UJA-Federation of New York, 1993; the honorees of the American Bar Association’s 2000 Margaret Brent Award: Justice Sandra Day O’Connor; Birnbaum; Judith Kaye ’62, then- chief judge of the State of New York; Shirley Hufstedler, former U.S. secretary of education; Karen Mathis, then-chair of the ABA Commission on Women; and Dovey Roundtree, civil rights attorney.

WWW.LAW.NYU.EDU 33 and respect of some of the male students. “She gave me some of funds he needed to pay for the program once he was in. “You can’t the best advice I ever got,” says Law, who remembers Birnbaum believe how wonderful that was,” says Miao, who vividly remem- telling her that she was probably too nice and needed to seize con- bers the day Birnbaum called him into her office and handed trol by batting down obstreperous students the very first week of him a big check. Birnbaum, by then associate dean and in charge class. Birnbaum says her strategy for handling students with an of the LL.M. and visiting scholars programs, remembers Miao as attitude was to make a few barbed comments or jokes at their ex- “just an outstanding person,” and says that her efforts were all in pense. “You’re smarter than they are,” she says. “You just confront the line of duty. them straight on.” Birnbaum’s willingness to—at least in Miao’s view—go out of One NYU Law student from that era who is deeply indebted to her way to help him led him to spend another few years in New Birnbaum is Gregory Miao (LL.M. ’85). He was born and raised in York after he earned his LL.M. working for Paul, Weiss, Rifkind, Shanghai and was the first Chinese-trained lawyer to come to the Wharton & Garrison. Then, returning in the late 1980s to China, Law School as a visiting scholar in the thaw that followed the end he ended up joining Skadden Arps (entirely independently of Birn- of China’s Cultural Revolution. baum), where he is currently a partner splitting time in the Shang- Landing in New York in fall 1983, Miao had virtually no money hai, Beijing, and Hong Kong offices and leads Skadden’s mergers and no real sense of purpose or belonging at NYU Law, because and acquisitions and corporate practice in China. “I am so grateful as a visiting scholar he was simply auditing classes and wasn’t to Sheila,” says Miao. “I was so surprised that a dean would spend really connecting with students. He could have easily spent the that kind of time with me. It really changed my life.” entire year at Washington Square drifting about. Miao recalls that Birnbaum took the time to talk to him and find out how he was oday, Birnbaum is such a fixture at Skadden Arps that it’s a little doing. She strongly encouraged him to improve his English, then Thard to imagine her anywhere else. Still, as she recalls, it was apply for a slot in NYU’s LL.M. program. Even better, according really just a chance encounter at a Fordham faculty cocktail party to Miao, she also made it her mission to help him secure the in 1979 that brought her to the firm. Birnbaum says she had barely heard of Skadden at the time, but she got to talking to Skadden partner and Fordham adjunct professor John Feerick at the party, and he suggested she speak with one of the firm’s name partners, Reading Betty Friedan’s 1963 bestseller, Joseph Flom, about setting up a part-time practice at the firm. The Feminine Mystique,“really Skadden was in full growth mode at the time and actively looking to add new practice groups. Firm leaders believed Birnbaum’s crystallized the fact that you could expertise in products liability would be a smart fit. “For us, it was a no-brainer,” recalls former Skadden partner Stephen Axinn. He be a woman and have a life.” and other Skadden veterans, including Irene Sullivan, who would become one of the first woman partners, contend that gender was never much of an obstacle at Skadden, which has always prided itself on its entrepreneurial, egalitarian culture. “It was very much a meritocracy,” says Sullivan. “If Joe [Flom] believed you were tal- ented, and you worked hard, that’s what mattered.” the spice of life Birnbaum says she had originally conceived of her work for Traveling in Egypt; kayaking in Skadden as a “nice little side job.” Almost as soon as she joined New Zealand; finishing the Susan G. the firm as counsel, however, clients with major products liability Komen Foundations’s Race for the exposure began calling. Birnbaum’s practice, which included both Cure in New York City in 1993. products liability defense and insurance coverage matters, took off. It wasn’t just the volume of new cases. The sheer size of the litigation was also increasing exponentially, with thousands upon thousands of plaintiffs now claiming injuries—a development that, as Birnbaum points out, was spurred by the rise of computers, which made it possible for the plaintiffs’ bar to instantly replicate filings. “Without computers you couldn’t have mass torts or class actions,” says Birnbaum. “There’d be just no way to do it.” Birnbaum began hiring new lawyers to help her keep up with all the work. By the early 1980s, however, Birnbaum was spending so many long nights and weekends at Skadden that she decided it was time to leave NYU Law and join the firm as a full-time partner. In the months and years that followed, Birnbaum’s workload only got larger. In 1984, Dow Corning enlisted her help fending off what eventually mushroomed into more than 40,000 suits by women who claimed that the company’s silicone gel breast implants caused a range of serious autoimmune diseases. During the 1980s, she also defended Olin Corporation in thousands of suits involving DDT, as well as Georgia-Pacific in a mammoth class action in Louisiana alleging the company had contaminated the local water supply in 1981. Plus, she served as lead defense counsel on more than 100,000 asbestos-related lawsuits against insurance giant Metropolitan Life.

34 NYU SCHOOL OF LAW And that’s just a sampling. Indeed, as the numbers of large- scale class actions, products liability, and toxic torts cases continued to explode, Birnbaum became the go-to defense lawyer for a long list of Fortune 500 companies. “Sheila was really ahead of the curve,” says Samuel Issacharoff, Bonnie and Richard Re- iss Professor of Constitutional Law, an expert in complex litigation who faced Birnbaum in a water contamination case against BP, Chevron, and other oil giants involving the gasoline additive

MTBE. In the early wave of products liability cases, Issacharoff Role Model notes, many companies would hire individual lawyers to litigate With her niece Sara Lubetsky, each matter separately. But Birnbaum understood that the flood and with Mark Geistfeld, the of products liability litigation would make that strategy untenable. first Sheila Lubetsky Birnbaum She built a practice around the idea of providing comprehensive Professor of Civil Litigation, representation to defendants with the aim of global resolution of at his inaugural chair lecture their liabilities, says Issacharoff: “She anticipated where the law in January 2010. was going and understood that the changes would require a whole different kind of representation.”

s co-head of Skadden’s Mass Torts and Insurance Litigation other corporate defendants she represents to get off easy. “I tell her AGroup, Birnbaum oversees about 60 lawyers. She views her role she’s a running dog for corporate America,” says University Pro- as a big-picture strategist—assessing the present and future scope fessor Arthur Miller with a chuckle. To which, he says, Birnbaum of the litigation, weighing the risks, and figuring out the best way to can be counted on to retort that he’s “a supporter of extortionist” proceed to limit her clients’ exposure. “I’m always looking at what plaintiffs’ lawyers. Likewise, Sylvia Law recalls debating Birnbaum the endgame is,” says Birnbaum, who notes that it’s exceedingly about whether helping to block plaintiffs who might have suffered rare for the defense to find a silver bullet that can suddenly make real injuries from collecting damages is a worthy endeavor. “I the thousands of cases in a mass torts litigation go away. thought that corporations should be held accountable,” says Law, Allies and adversaries alike contend that one of her greatest tal- while Birnbaum was sympathetic to the defendants. ents lies in devising creative ways to resolve even the most massive, Those sorts of debates haven’t done much to change the way complicated matters. “A lot of defense lawyers have drunk the Kool- Birnbaum regards her work. She maintains that she, too, firmly Aid—all they want to do is litigate,” says plaintiffs’ attorney Perry believes that corporations should not be let off the hook for will- Weitz, co-founder of Weitz & Luxenberg. In the vast majority of mass ful misconduct. If, say, a drug company hid studies from the Food torts and class actions, Birnbaum contends, the most cost-effective and Drug Administration showing a medication was harmful, then course of action for clients is to settle. The key question is when and that company should be punished, says Birnbaum. The problem is for how much, she says: “You have to ask how you are going to win that the facts on the whole in the vast majority of drug injury cases the most battles and skirmishes along the way so you get to the point and many other types of toxic torts litigation are never that simple. where the litigation can be settled for the least amount of money.” She contends pieces of the story often get distorted and are used It is during those battles and skirmishes that Birnbaum demon- to malign corporate defendants. “It’s very easy to take an e-mail or strates her strength and leadership. She is calm and even-tempered document out of context to create passion and prejudice against a under pressure, even when she’s marshaling Skadden associates to big corporation” and win a huge award, says Birnbaum. “But maybe meet deadlines on critical motions. “She’s our Rock of Gibraltar,” you’re taking money from corporate shareholders and workers.” says David Zornow, global head of Skadden’s Litigation and Con- Birnbaum says she is moved by the plight of many of the plain- troversy practices. And she has a firm hand in defusing volatile situ- tiffs whose cases she defends, such as the women with advanced ations. During settlement talks for thousands of toxic injury cases breast cancer in the Prempro and Premarin litigation. Still, as against the maker of the diet drug Dexatrim, Christopher Seeger tragic as those women’s stories are, she insists that there’s just no recalls that one of his fellow plaintiffs’ attorneys jumped out of his proof that the two hormone-replacement drugs caused their ill- chair and began yelling expletives in Birnbaum’s face. He says Birn- ness. “No one knows what causes breast cancer,” says Birnbaum. baum stuck her finger in the lawyer’s chest, said a few choice words, “No doctor can tell a jury that the mere fact that a plaintiff took a and put him right back into his chair. Seeger, who has had his own particular drug caused their individual injuries.” share of heated moments with Birnbaum over the years, contends The Dow Corning case serves as a cautionary tale that helps that “if you push her too hard, the Bronx is going to come out.” to explain how Birnbaum can see past the swirling emotional Seeger and other plaintiffs’ attorneys say, however, that Birn- drama of plaintiffs’ stories and insist on scientific proof of baum is almost always pleasant to deal with, listening and respect- causation. Despite the tremendous hype in the 1980s and ’90s ing their positions. When the time comes to close settlement talks, about the debilitating health issues the silicone gel breast im- Birnbaum is pragmatic and flexible, they say, and when she makes plants allegedly caused, in the end the independent panel of sci- a promise during negotiations, she delivers. “When she gives you entific experts who examined the evidence found there was no her word, you can count on it,” says Weitz, who has faced Birnbaum credible proof linking the implants to the alleged injuries. “We across the bargaining table in at least a dozen cases. “She’s shown knew the science [the plaintiffs were relying on] was very weak,” she’s someone the plaintiffs’ side can trust.” says Birnbaum, who helped lead the push for an independent review of the scientific evidence. “It was a decisive win for defen- ver the years, some of Birnbaum’s pro-plaintiffs friends and dants.” Unfortunately for the company, by the time the review Ocolleagues on the NYU Law faculty have ribbed her about the was completed Dow Corning had already declared bankruptcy merits of helping polluters, manufacturers of drugs, and the many and opted to settle the litigation.

WWW.LAW.NYU.EDU 35 And don’t even try to argue the merits of large punitive damages. campaign’s get-out-the-vote effort. “I really wanted to see the first While she supports the jury process, Birnbaum says large puni- woman president,” says Birnbaum. tive damages are emotionally driven, and therefore frequently re- Over dinner with good friends, Birnbaum is always up for a duced by judges. She is proud of her Supreme Court win on behalf lively debate about the latest political issues. “She loves to argue of State Farm in the 2003 about politics,” says her friend Barbara Wrubel, who describes Campbell case, which Birnbaum as liberal on social issues but a fiscal conservative. challenged a $145 million Birnbaum, for her part, does say she’s strongly pro-choice, but punitive damages verdict she declines to get into her views on other hot-button issues for that State Farm had been public consumption—especially in light of her recent appointment hit with in Utah for bad to oversee the 9/11 fund. faith in settling a case. In her free time, Birnbaum can usually be found at her East Birnbaum argued that Hampton home. Besides being an enthusiastic Scrabble player, she the size of the award was took up golf seven years ago. And all her corporate travel hasn’t so excessive compared dimmed her wanderlust or sense of adventure. She is an avid kay- to compensatory dam- aker and outdoor enthusiast. This year she toured northern India ages that it violated State and went snowshoeing in Aspen. “It’s just a beautiful thing to get Farm’s due process rights out in the woods with the snow falling,” says Birnbaum. under the 14th Amend- She has also recently started cooking Italian food—thanks to ment. She asserted that Brooklyn Law School President Joan Wexler (and former NYU Law since civil defendants professor) and other longtime friends, who gave Birnbaum lessons have fewer rights than with a private chef for her 71st birthday this past March. “We’re criminal ones, grossly hoping she gets back into cooking,” says Wexler, who adds that in excessive or arbitrary the past Birnbaum has hosted some great dinner parties, in addition to the party she throws in East Hampton every summer, when she treats a group of about 30 friends to an outdoor meal on the night of an annual town fireworks show. Despite Birnbaum’s frenetic work schedule, Wexler and others say she’s exceptionally giving of her time and is the kind of friend who can be counted on whenever they’re in need. “We all know that Sheila will be there for us,” says Madeline Stoller, who says that punishment is un- when one of Stoller’s family members was ill, Birnbaum called her just. A majority of every day and offered helpful, practical advice. the justices agreed Likewise, years back, when Stoller flew back to New York from and proceeded to Florida after her mother died, she says Birnbaum came to LaGuar- lay down new guidelines on “reasonableness” for lower courts to dia to pick her up at 11:00 p.m. “She’s the most supportive friend in consider when reviewing punitive damage awards. “Birnbaum ar- every way possible,” says Stoller, who met Birnbaum when the two gued quite forcefully that a punitive award must be limited to the shared a summer home in the Hamptons roughly 40 years ago and rights violation suffered by the plaintiff,” says Mark Geistfeld, an credits Birnbaum with urging her to go to law school. Now retired, expert in punitive damages who became the Sheila Lubetsky Birn- Stoller was in-house counsel at Wyeth Pharmaceuticals until 2006. baum Professor of Civil Litigation in 2009. “Campbell has largely During Birnbaum’s early 40s, there was a period when she reoriented the hugely important tort practice of punitive damages thought she might like to have children. That time came and went, away from the punishment of social wrongdoing to the redress of but Birnbaum says she has no regrets. “I wouldn’t have been able the individual issue in the tort claim.” (For more on punitive dam- to accomplish all I’ve accomplished,” she says, noting that she has ages and torts, please read “The System Everyone Loves to Hate” three nieces whom she’s close to, including one—Sara, her brother on page 12.) Paul’s daughter—who graduated magna cum laude this spring Birnbaum says the Court’s decision has clearly had a positive from NYU’s College of Arts and Science. impact in making punitive damage awards more rational and pre- Looking back at her many achievements, Birnbaum says she dictable, in addition to reducing their size. And she contends that feels best about her ability to show that a woman could build a the net effect is actually pro-consumer. “When you punish a cor- leading practice with top-tier clients and practice law at the very poration [with a huge award], consumers often end up paying for highest level. She’s also proud of the many things she has done to it with higher prices,” says Birnbaum. In fact, she says, it’s simply support other women lawyers, including serving as a mentor and a windfall for plaintiffs and their lawyers. helping to organize an annual Skadden women’s retreat, where the firm’s female partners can network with top clients. “I’ve always ow a lawyer whose victory in Campbell was called “a big win tried to open doors for other women,” says Birnbaum, who was Hfor corporate America” by the Washington Post is not a Repub- also involved in the creation of the Women’s Bar Association of lican boils down to being, at heart, a hometown girl. the State of New York. Growing up in the Democratic bastion of the Bronx, Birnbaum For now, Birnbaum insists she’s still enjoying her practice at says, she never knew any Republicans. And though she officially Skadden too much to think about retiring. “I love practicing law, labels herself an independent, she says that she almost invariably and I intend to keep practicing as long as I can,” she says. You don’t supports Democrats. During the 2008 presidential campaign, she need scientific evidence to conclude that’s a sound decision. was an enthusiastic donor to Hillary Clinton and went to Philadel- phia on the day of the Pennsylvania primary to assist in the Clinton Susan Hansen is a freelance writer in New York.

36 NYU SCHOOL OF LAW The System Everyone

The complexity and sophistication of our institutions and services——government, banking, health care, and communications, to name a few——have grown beyond the grasp of all but those who specialize in them. And sometimes things go wrong. So it's no surprise that even the once basic tort is emerging as a hotly contested area of law where the Supreme Court weighs in on whether private lawsuits can be brought in areas regulated by the federal government, and billion-dollar corporations seek cover from thousands——even millions——of individuals claiming to have been injured by their products. At NYU Law, a dedicated group of faculty is thinking through the ramifications of torts today and how to shape a legal system that will serve our needs into the future. n Fall 2008, Jared Roscoe ’11 admits a bit sheep- torts, and are co-authors of leading casebooks in the field. Other ishly, he began his 1L Torts class not quite equally distinguished faculty members have made significant knowing what a tort even was. “I knew it cov- contributions to the field even while devoting much of their intel- ered things like ambulance chasing, medical lectual energy to other areas. “There’s no better faculty in torts,” malpractice…but I didn’t really know,” Roscoe says torts scholar Gregory Keating of the University of Southern says. By the end of that class, followed by an ad- California Gould School of Law. Most other law schools are lucky vanced one, both taught by Catherine Sharkey, to have one serious tort expert, notes Robert Rabin, Stanford Law Roscoe, like generations of law students be- School’s top tort scholar, who teaches at NYU Law every other year. fore him, well understood the basics of a tort And many of the people who do teach it elsewhere don’t consider suit. But he also saw how in recent years torts torts their primary field. By contrast, most tort classes at NYU Law have collided with the regulatory state, as cor- are taught by professors with a strong grounding in the field. porations began seeking federal regulation as Each of the NYU Law professors is working to improve a tort a shield from potentially big-ticket state law- system everyone loves to hate. But their approaches diverge in suits. Put simply, the question is this: Who’s best at determin- critical ways. Epstein, Laurence A. Tisch Professor of Law, is the ing how to keep people safe and at what level of risk—a federal preeminent writer on torts from a libertarian viewpoint, a long- Ibureaucrat or a bunch of jurors? And although torts remain pre- standing and vocal proponent of strict liability who greatly favors dominantly a state issue, the Supreme Court has been increas- using contracts rather than torts to resolve personal injury cases. ingly stepping into important tort reform cases to answer that Geistfeld, Sheila Lubetsky Birnbaum Professor of Civil Litigation, question. “This is where torts is most relevant to today. I found is a self-described liberal-egalitarian guy and product liability ex- that really fascinating,” says Roscoe, who is now clerking for Judge pert who meshes economics with notions of justice in setting tort Roger Gregory of the U.S. Court of Appeals for the Fourth Circuit. policy. Sharkey, steeped in law and economics, is doing pioneer- The faculty of the NYU School of Law has in many ways led ing work at the intersection of tort and administrative law, espe- this tort evolution. Three of its members—Richard Epstein, cially the issue of federal preemption of state tort actions. “Each Mark Geistfeld, and Catherine Sharkey—are focused of them has carved out a kind of distinctive path and by Larry Reibstein principally on their scholarship and teaching in is engaging in first-class scholarship,” says Rabin.

12 NYU SCHOOL OF LAW to Loves Hate Everyone

But NYU Law’s outstanding tort scholarship doesn’t stop there. A feather in the cap of the torts faculty at NYU Law: Two of the Jennifer Arlen ’86, Norma Z. Paige Professor of Law, while gener- leading torts casebooks are currently being revised in new editions ally known for her expertise in law and economics and corporate by professors here. Geistfeld and Rabin are co-authoring one of them, crime, has written ambitious papers in the area of vicarious li- Tort Law and Alternatives, and Epstein and Sharkey the other, ability—concerning to what extent a company should be liable Cases and Materials on Torts. for the actions of its employees. She’s probably best known for her NYU Law also hosts a meeting of tort scholars known as the often provocative work in medical malpractice litigation, which NYC Tort Theory Group. Each month the group of 10 or so meets remains highly controversial and politicized at the state level. She on the fourth floor of Vanderbilt Hall to hear presentations and cri- has advocated for holding managed care organizations liable for tique scholarly papers. Professors fly in from around the world to their physicians’ errors, and argues that caps on damage awards participate. Earlier this year, for example, USC’s Keating presented are unfair, especially to people who are seriously injured. She is in “Is Tort a Remedial Institution?” Ariel Porat of Tel Aviv University the midst of editing a book, The Research Handbook on the Law and discussed “Risk of Death.” The discourse can be vigorous. Epstein Economics of Tort, tentatively set for publication in 2012. recalls commenting at one meeting that recent Supreme Court Roderick Hills Jr., William T. Comfort, III Professor of Law, decisions meant, unfortunately to him, that drug manufacturers whose interests center on public law, dips his toe into torts at the could no longer expect federal regulatory approval to shield them intersection of preemption and federalism. Noted civil procedure from state tort actions (the preemption concept). Few agreed with expert Samuel Issacharoff, Bonnie and Richard Reiss Professor of him and weren’t shy about letting him know, he says with delight. Constitutional Law, has extensive experience in mass litigation At the same time, NYU Law professors are engaged in the mod- such as the Vioxx cases. University Professor Richard Stewart, an ern world of torts, a front-page topic, as evidenced in recent drug authority on environmental and administrative law, has made and car safety cases. (Alumni make headlines, too. Please see “The important contributions to the study of punitive damages, and Closer” on page 28.) About a half-dozen preemption cases were recently testified on tort issues surrounding the BP oil spill (see before the Supreme Court in the 2010-11 term. In one, Bruesewitz v. page 16). He was also a chief reporter for the influential American Wyeth, Geistfeld filed an amicus brief arguing that a federal vac- Law Institute study on enterprise liability for personal injuries. cine law does not bar people injured by an injection from filing Troy McKenzie ’00, a specialist in bankruptcy law, is exploring state tort suits (the Court, however, ruled 6–2 that it mostly does). the use of bankruptcy court to handle mass torts. Geoffrey Miller, Sharkey is advising the Administrative Conference of the United Stuyvesant P. Comfort Professor of Law, who predominantly States on dealing with the collision between regulation and tort law. focuses on financial institutions and corporate and securities Epstein lambasted the Supreme Court’s decision in Wyeth v. Levine law, is an expert on class actions. And finally, Lewis Kornhauser, for permitting a state tort case to go forward against a Wyeth drug, Alfred B. Engelberg Professor of Law and a microeconomics ace, rather than allowing federal regulations to govern. “‘Awful’ does and Dean Richard Revesz, Lawrence King Professor of Law and not begin to capture what I think of that decision,” he says. “This a noted scholar of environmental and regulatory law and policy, is really an extraordinary point in American tort law,” says have written seminal pieces on vicarious liability Issacharoff. A field that “used to be defined by com- and joint and several liability. (Epstein, Geist- mon law doctrines,” he says, “is now becoming feld, Kornhauser, Miller, and Sharkey are all thought of in terms of its regulatory role and how it fits contributing chapters to Arlen’s book.) into an increasingly administrative society.”

WWW.LAW.NYU.EDU 13 Torts for 1Ls Taking Positions If a 1L has any knowledge of what a tort is, it’s often a negative view, Richard Epstein joined the NYU School of Law faculty full-time especially “if one of your parents is a physician,” Geistfeld quips. in Fall 2010, bringing his polymathic scholarship, prolific writing, Yet by the end of the first-year course, students have learned that, contrarianism, collegiality, and bluntness. as Sharkey likes to tell her class, “all roads lead back to torts.” Along As I prepare to interview him in his fourth-floor office, I place with Procedure and Contracts, Torts is a core law school require- two digital tape recorders on a stack of papers covering his desk. ment. “It teaches students fundamental ways of thinking about law “Two?” he asks. as an institution-regulating system,” Sharkey says. She adds: “It’s “I don’t trust technology,” I answer. a fabulously interesting class to teach, as long as you don’t teach it He peers at them. “They’re the same brand, so they will make myopically.” It shows students how the various mechanisms that the same error,” he says. strive to achieve optimal deterrence of risky behavior work together, I chuckle at his joke, but it’s soon clear he is making more than such as private suits, government regulations, criminal law, and a joke. He is parlaying my two similar tape recorders into a point damages. Different intellectual approaches to torts are explored, about the failings of the modern tort system. such as the debate between the law and economic view and the “You know Ludwig Wittgenstein, the philosopher? He read corrective-justice view. “It gets students to think about deep ques- something in the paper, and to make sure it was correct he got tions that go beyond memorizing causes of action,” Sharkey says. another copy.” Unfortunately, too many law schools dragoon professors to teach I laugh again. a course in which they have little interest. The result is professors “It’s called common mode failure: all sorts of things that you who impart a cynical view of torts. Those who dismiss torts as an think are independent but are all resting on a single particular unexciting area of practice, Sharkey says, are “wrong.” function.” The heart of the Torts class is negligence liability, “OK, but let’s get back to torts,” I say. on which the vast majority of suits turn, according “But it is torts!” Epstein bellows. “Common mode failure is one to Geistfeld. He spends half or more of the semes- of the essential themes in tort law.” ter teaching its various elements: duty, breach of The concept helps explain the massive growth of tort liability in duty, causation, and damages. He and other NYU the 20th century, an expansion that Epstein decries. Tort liability Law professors also teach the intentional torts, the has expanded, he says, “from idiosyncratic events to systematic earliest torts, which typically involve a crime as wrongs” as seen under common mode failure. To help curb that well, such as punching someone in the face. Many growth, Epstein is a strong proponent of preemption, the idea that laws schools have dropped this area as irrelevant, federal regulation of a product—say, drugs or cars—overrides or but Geistfeld insists it remains historically and preempts state tort actions. conceptually interesting. A couple of weeks are then devoted to products liability, a complicated and on preemption challenging but hugely important area of study. “The Federal preemption invokes a host of important legal and policy raw numbers in dollars involved” in those cases war- threads that have been dissected by NYU’s law professors. What rant the focus, says Geistfeld, who also teaches an does the Constitution’s Commerce Clause say about whether the advanced class in products liability. federal government or state tort law governs certain tort liability, Although the essentials remain the same in Sharkey’s class, she and how and when? Who is best at setting national safety stan- says her approach is “unbelievably different” from the one in the dards? Congress? Agencies such as the Food and Drug Adminis- Torts class she took as a J.D. student. New cases have arisen that tration? Private state suits and juries? Is federal regulation a more enliven the class. For example, an old arcane tort known as trespass efficient way to reduce risk and liability, or are after-the-fact tort to chattels—someone interferes with another’s property—might suits more effective at compensating injuries and deterring behav- have been glossed over. Now, thanks to the Internet, the concept is ior to reduce the risk of accidents? back in such cases as Intel Corp. v. Hamidi, in which the chipmaker It’s a highly politicized issue. Trial lawyers, traditionally Demo- claimed an employee’s use of its e-mail system to criticize the com- cratic supporters, loathe preemption in that it blocks their lucrative pany constituted trespass to chattels. (It lost before the California state tort suits, and federal regulations don’t allow for damages to Supreme Court.) Conversion, another old tort that’s similar to theft, injured parties. Business generally prefers the consistency of fed- arises in cases involving stealing of domain names or patents. eral regulation and the avoidance of potentially big jury awards Sharkey notes that some of the basics learned in the Torts class at the state level. feed into upper-level courses, which Jared Roscoe also observed. And for students, preemption, despite the eye-glazing nature He graduated in May with an elective advanced torts class under of the word, is a favorite part of her tort class, according to Sharkey: his belt as well: Torts and the Administrative State. His under- “It engages them because it’s not a historical or theoretical discus- standing of tort issues such as preemption came in handy when sion, and it’s not about horses and buggies in the 19th century. They he took Constitutional Law, for instance. Skills learned are trans- hear ‘torts’ and think it’s not for them, but this makes the subject latable, too, he says. Just as in showing a tort (duty, breach, etc.), a come alive.” lawyer has to break out each element when proving a crime. Among the faculty, the clashes play out in academic papers and Beyond that, Roscoe argues that although law schools need to debates. Epstein, as always, knows where he stands. “I’m in favor of focus on the “big, sexy” questions that come before the Supreme preemption almost across the board,” he says. Tort suits brought Court, the real judicial business of courts is dealing with the large in state courts should be tossed out—“all of them, one and all”—on volume of tort suits. “It’s not as immediately appealing as gay mar- grounds that federal regulation of the activity protects against li- riage,” he says, but hugely important. Remember, this is from a ability at the state level. “I’ve had this position for close to 40 years,” student who as a 1L wasn’t quite sure what a tort was. Epstein says, noting his long-ago preemption work for Philip Morris

14 NYU SCHOOL OF LAW in the cigarette litigation. (“I worked for them when after approval, he says, a drugmaker has little obliga- they won, and when I stopped they started to lose,” he tion (and no incentive) to go back to the FDA for a new says. “It’s not quite a causal relationship, but I’ll take it.”) rule. That’s the role state tort suits should play. The His essential reasoning is that the FDA, to name one threat of huge payouts, legal fees, and bad publicity federal agency, has already carried out extensive fact gathering on should create an incentive for a company to ask the FDA for new a drug and has issued a rule. This alone “should rule out state tort rules—an updated warning label, for instance—that would also causes of action based on the inadequacy of any drug label,” he wrote serve to block any future suits on preemption grounds. in the Tulsa Law Review in 2009. Allowing state tort suits does not “I don’t care if state tort suits are stupid and inefficient; you need “let you make a better judgment.” Writing in the 2010 New York Uni- some kind of prod,” Hills says. “The point is to force industry to versity Annual Survey of American Law, Epstein notes the “massive help the FDA get it right.” He adds that opponents to tort suits have disruption” that “even a single trial causes to a blameless product.” never offered up another mechanism to induce industry and agen- These tort suits lead to “an absolute brawl,” he says, in trying to cies to update their regulations. determine causation or whether a warning was adequate, as both Sharkey has carved out an approach to tort suits and preemp- sides need to hire batteries of experts. “You’re talking billions of tion that she has dubbed the “agency reference model.” She be- dollars in wasted money, and God knows what it does to innova- lieves that federal rulemaking should block tort suits when the tion,” Epstein says in our interview. regulatory agency can show it has done its homework in investi- In his NYU Survey article, Epstein notes that tort law and the gating a product. Too many times, she says, agencies merely de- FDA lived in a “peaceful co-existence” before the mid-1960s. But clare that their regulations require preemption (in a preamble, the “huge expansion” of state product liability law since has led for instance) without a factual basis. Or they might be subject to to the current collision between state torts and federal regulation ideological considerations—they don’t like torts, for instance, so generally. Epstein gives this example of the ballooning of liabil- they’ll reach for preemption in an arbitrary way. Courts, by look- ity in the last 50 years: “The original definition of a defective car ing to agencies to determine if they’ve done a thorough job, can was when it exploded because of a gasoline leak into the carbu- make more informed decisions about whether the regulation was retor. Now the definition is in effect a car that won’t protect you an optimal one or not—and hence, whether it should trump state when you crash—drunk—into a steel pole at 85 miles an hour.” action. Says Sharkey: “Courts are making decisions about whether And yet, he adds, the safety of products, from cars to TVs, toast- there is preemption, but they are not well equipped” to parse the ers to drugs, has grown enormously. “The safety probability error complicated regulatory process. rate is one-one-thousandth of what it was in 1950—and the liabil- Is her model gaining any traction? Courts are starting to recog- ity is a thousandfold what it was. Something is obviously out of nize that agency input is important, she says, but she won’t claim whack,” Epstein says. that the Supreme Court has embraced it. At the root of the issue Roderick Hills Jr. expresses a far different view. He argues is how Congress handles—or mishandles—the federalism that state tort suits serve as an incentive to business to help question when enacting product liability laws. Sometimes federal agencies regulate products. “Federal agencies like Congress knows what it wants to do, so it expressly bars the FDA just do not have the resources or the personnel to state tort suits. In those cases there is no ambiguity: suit dis- monitor industry,” says Hills, who explored the topic in a missed. But often it writes muddled, conflicting language, 2007 NYU Law Review article, “Against Preemption: declaring in one passage that the federal law trumps How Federalism Can Improve the National Legis- state law jurisdiction, while insisting in another that lative Process.” He explains that the FDA’s clini- nothing in the law prevents the filing of state suits. cal trials on a drug are done only once and on In effect, Congress is punting the question to courts a relatively small number of people compared and agencies. with the number who often take the drug—like So what’s a poor judge to do when faced with a Lipitor, for instance. The FDA can’t possibly tort action? Here, too, courts must confront what anticipate the complete array of risks associ- Sharkey calls “two warring strands of jurispru- ated with a product. When a problem arises dence” in administrative law. On the one hand,

Fifty years ago a defective car was one that exploded.... Now it's a car that won't protect you when you crash, drunk, into a steel pole at 85 miles an hour. richard epstein, laurence a. tisch professor of law

WWW.LAW.NYU.EDU 15 judges can go with the notion that there exists a presumption had told them more, they would have been more careful, according against preemption—and allow the suit to go forward. On the to Epstein. The suit should have been tossed out, he says. (“The state other, there’s Chevron deference (after a landmark Supreme Court court ought to be put on a funeral pyre and left to burn,” he suggests decision), meaning judges should defer to agency interpretation in typical understatement.) Instead, the Wyeth decision means drug of laws. “They are clashing, and that’s why the Supreme Court companies will find it almost impossible to obtain protection from hasn’t squarely addressed it,” she says. state liability, Epstein concluded in his Annual Survey article. Epstein, however, has squarely addressed Sharkey’s agency ref- Hills, again, disagrees with Epstein, insisting the Court’s deci- erence idea—and doesn’t much like it. “As I told Cathy, compared sion to allow the suit was the right one. Wyeth’s Phenergan label to what Justice Stevens has ruled, I ought to embrace and kiss you,” was inadequate, Hills says, by failing to discuss the risks as com- Epstein says. But he maintains that federal agencies already care- pared with the benefits. fully study products before issuing regulations. Her model will gen- Sharkey is unhappy with the ruling, though for different rea- erate “too many fact-dense inquiries to work well in hard cases,” sons. She says the Supreme Court should have remanded the case he has written. to a lower court, which, using her agency reference model, could The professors’ differing views play out in the Supreme Court’s have explored more of the “indeterminate,” in her word, regulatory 2009 ruling in the major preemption case Wyeth v. Levine. Stevens, record on Phenergan. She thinks Epstein is reading the decision writing for the 6-3 majority, said the fact that the FDA had approved too broadly to say that it largely shuts the door on preemption. But a drug’s warning label doesn’t shield it from tort liability in Vermont. she laments that lower courts seem to be interpreting it that way, The plaintiff had lost her hand to gangrene when she was injected too. “They’re putting the bar way too high,” she says. with Phenergan, an anti-nausea drug made by Wyeth. Sharkey grew interested in the preemption debate while Was it a bad decision, I ask Epstein? “It’s a level of institutional working with Samuel Issacharoff on a paper published in the UCLA unawareness and incompetence beyond which you cannot compare,” Law Review in August 2006. At the time she was working on puni- he answers. The physicians who administered the drug made mis- tive damages issues, while Issacharoff was focused on class-action take after mistake and admitted as much, but insisted that if the label law. Their joint article, “Backdoor Federalization,” addressed what

It's Not Easy Being Green: Litigating Environmental Disasters

When University Professor Richard Stewart first learned of the At press time, the parties in the BP spill were making progress BP oil well explosion in April 2010, he thought, Here it goes toward such a settlement. In April, BP agreed to pay $1 billion again. Stewart played a central role in the to begin restoration work in the Gulf. Stewart lauded the pre- $1 billion settlement for the Exxon Valdez liminary agreement, but says he’s concerned that the money will disaster in 1989. Then a Justice Depart- be allocated evenly among the affected states even though the ment assistant attorney general, Stew- Louisiana coast is the top restoration priority. “It’s not clear the art spearheaded both the criminal and political logic matches the ecological needs,” he says. civil actions brought by the U.S. against Indeed, Stewart notes that questions on how settlement money Exxon. He adopted a unified strategy with gets spent and who makes the decisions can easily turn into a the state of Alaska—to avoid any Exxon bruising free-for-all. In Exxon, Stewart says the Department of divide-and-conquer maneuver—and Justice wanted large fines for deterrent effect, while government managed to deal with at least five U.S. agencies wanted a big slice to go for restoration, as did Exxon agencies, three of whom vied for restoration monies. “It (it’s tax-deductible and good public relations). In the end, there was a very complex process of keeping things were large fines and criminal restitution, but the together,” he says. “It was not easy. Not easy.” money was mostly targeted for restoration costs. And yet, on paper at least, settling the BP liti- In Exxon, a six-person body of both federal gation could easily surpass Exxon’s in difficulty. and Alaska representatives made the spending Five states are involved as plaintiffs, and there decisions. Stewart told the oil spill commission are a number of potential defendants, including that the number of parties in the BP case would Halliburton and Transocean, in addition to BP. make that arrangement unworkable. He urged And unlike the pristine Prince William Sound, Stewart notes, the instead that the president appoint one person for federal deci- Gulf of Mexico was already “beaten up,” making it difficult to sions on restoration while the states collectively do the same. pinpoint BP’s responsibility. The bigger lesson here, Stewart says, is how to prevent For starters, Stewart suggests that officials borrow a page from such disasters in the first place. The threat of big sanctions to his Exxon strategy: Push for a global settlement of all criminal, create an incentive for corporations to act responsibly clearly civil, and natural resources claims. Such an approach would didn’t work, he says. The answer may include special training “avoid potentially immense litigation delay and expense,” Stew- for rig operators, such as the training that airline pilots and nu- art testified in September 2010 before the national commission clear workers receive, and targeted incentives for innovation investigating the spill. “Most important, a global settlement could in safety. “Torts are not enough,” Stewart says. “Liability alone deliver restoration resources to the Gulf more rapidly.” is not going to do the job.” — L.R.

16 NYU SCHOOL OF LAW they called the Supreme Court’s “quiet federalization” of areas of law which concluded that private bail bondsmen tend to treat minor- historically governed by state law, referring, in part, to preemption ity clients better than the courts do, won Yale’s prize for the best decisions. They argued that in doing so, the Court was attempting original economics thesis. to capture the benefits that flow from “national uniformity” and to She went on to get her master’s in economics from Oxford, where protect commercial markets from “unfriendly state legislation.” she was a Rhodes Scholar. After attending Yale Law School, and fall- Sharkey says the question in her mind was how to tap the exper- ing under the law-and-economics sway of professor and Second tise of agencies but not bow to them indiscriminately. To achieve Circuit judge Guido Calabresi, and then clerking for two years (for this balance, she devised her agency reference model. “It places Calabresi, then Justice David Souter), she worked for three years in federal agencies front and center in a realm in which they have of- private practice, handling appellate litigation involving product li- ten lurked just out of focus,” she wrote in her paper for the George ability and punitive damages. “I liked that because it had a law-and- Washington Law Review in April 2008. economics spin,” she says. She then accepted a research fellowship at Sharkey’s ideas did not go unnoticed. Her paper on the agency Columbia Law School, where she wrote a paper on punitive damages. reference model was read by Paul Verkuil (LL.M. ’69, J.S.D. ’72), She had the chutzpah to send the paper to Epstein, then at the who had recently been appointed by President Barack Obama to University of Chicago, whom she did not know. “He was unbeliev- head the Administrative Conference of the United States, which ably critical,” Sharkey recalls with a smile. Responds Epstein: “She issues recommendations on administrative law matters. (Revesz gives as good as she takes.” At one point, Sharkey found herself ed- is a public member of the conference.) Verkuil invited Sharkey to iting a piece Epstein had written on preemption. “It was an insane lunch in May 2010 and proposed that she work up some practical experience,” she recalls in awe. “He’d send me something at 3 in ideas flowing from her academic papers, she recalls. the morning, then I’d get something back to him at 5, and at 7 he’d Intrigued, she accepted and began intensive research. The issue be back to me. He was very engaged.” The two went on to become of preemption was especially high-profile at the time, and highly po- good friends and colleagues, and Sharkey speaks admiringly of his liticized. Just months after taking office in 2009, Obama had issued extraordinary support for students. a presidential memo condemning how agencies such as the FDA Sharkey became interested in preemption just before the and the National Highway Traffic and Safety Administration were Supreme Court jumped in and made it a hot issue. She says too aggressive under former President George W. Bush in asserting the Court’s focus on the issue has “kept me in the subject probably blanket preemption of state law, known as preemption by preamble. longer than I otherwise would.” Over the summer of 2010, Sharkey interviewed officials in charge of preemption at various agencies in Washington, includ- on punitive damages ing the FDA, NHTSA, EPA, and Consumer Product Safety Commis- Another area of state torts into which the Supreme Court has in- sion. Her goal was to learn an agency’s inner workings—who jected itself, raising some of the same constitutional and federal- specifically made decisions about preemption, how they ism issues as preemption, is punitive damages. In three cases reached those decisions, with whom they consulted. After starting in 1996, the Supreme Court rejected excessively undertaking an exhaustive review of agency rulemaking large punitive damage awards by state juries on grounds and intervention in court cases, she prepared a series of they violated the defendant’s due process rights under the recommendations for the Administrative Conference, Constitution. The controversial rulings sparked renewed which were subsequently adopted. They boiled down interest in the area from several professors, including essentially to her agency reference model. Geistfeld and Sharkey. Sharkey was that most unusual of law school stu- Both wrote about the 2007 smoking case Philip dents—she actually liked torts. She had gone to Morris USA v. Williams, which involved an Oregon Yale as an undergraduate economics major. Em- jury award of $97 million for punitive damages and bracing the intersection of policy and problem only $821,485 in compensatory damages. The Supreme solving, she took off her first semester of senior Court vacated the award in part on grounds that the pu- year to pursue an independent study of the bail nitive award far outweighed the compensatory damage. bond system in New Haven, Connecticut. Her paper, (The Court, in an earlier ruling, had suggested a proper

Courts are making decisions about whether there is preemption, but they are not well-equipped to parse the complicated regulatory process. catherine m. sharkey, professor of law

WWW.LAW.NYU.EDU 17 ratio requires that punitive dam- The result for Geistfeld was a kind of hybrid philosophy, the in- ages be less than 10 times the size corporation of economics into the justice view of torts. Most schol- of the compensatory award.) But Or- ars insisted it had to be one or the other. But, wrote Geistfeld in egon courts, after a protracted back- a chapter of the 2009 book Theoretical Foundations of Law and and-forth with the Supreme Court, upheld the smoking award. Economics, “The idea that economic analysis is incompatible with In law review articles, Sharkey criticized the “heavy-handed or irrelevant to a rights-based principle of justice is mistaken.” In direction” of the Supreme Court and also attacked the punitive- fact, he argues, economic analysis is “integral” to any rights-based compensatory ratio as “theoretically bankrupt,” saying it lacks any tort system, an argument he has since defended by showing how correlation with the underlying deterrence and retributive goals this conception can resolve a number of doctrinal issues that have of punitive damages. long vexed the tort system. Geistfeld took another tack, dissecting the Philip Morris deci- Of his new focus on fairness, one thing is clear to Geistfeld: “If I sion to explore the novel question of how to justify and calculate had been somewhere else and not here at NYU, I’m not sure I would punitive damage awards in a wrongful death case. In the Court’s have gone in that direction.” two previous punitive damage cases, the plaintiffs had suffered economic damages—in one, diminished value in a new BMW that had on medical malpractice been repainted; in the other, fraudulent insurance reimbursement. There’s probably no area of torts more controversial in the public Those damages became a baseline to determine the size of the puni- arena than medical malpractice litigation. That’s where Jennifer tive award. But in the Philip Morris case the plaintiff, Jesse Williams, Arlen has made her mark, employing economics reasoning to de- was dead. Wrongful death cases typically produce minimal, if any, bunk conventional wisdom about such suits. No surprise there: compensatory awards. So, how to figure out the baseline to multiply She has an economics B.A. from Harvard and a Ph.D. in the field for punitive damages? from NYU. In between she earned her J.D. at NYU Law. Geistfeld scrutinized the award through the lens of the individ- The overall tort system, she says, acts essentially as a corrective ual tort right to compensation. He first borrowed from government to the market: “Markets often don’t work, and you can’t regulate data that puts a value of $6.1 million on a person’s statistical life everything, so you need what I think of as a potentially market- (used when assessing a proposed regulation’s cost versus its ben- enhancing system: the tort system. It can make markets function efit in saving lives and preventing injury). But the risk of death from better. It’s not an opponent.” smoking is so high and clear that it yielded an injury measure be- That’s the argument she presented in a 2003 NYU Law Review tween $10 million and $20 million, according to Geistfeld’s estimate. article suggesting that the market alone was not sufficient to en- A single-digit multiplier, as specified by the Supreme Court, could sure optimal medical care. The article dealt specifically with man- then easily get punitive damages to the $79 million awarded by the aged care organizations (MCOs) and the extent of their tort liability. jury. “I did everything from the perspective of what Jesse Williams’s MCOs, which rose to vast influence in the 1990s, affect patient care rights might require,” Geistfeld said. by holding the power to approve or deny medical treatments se- That emphasis on rights marks a substantial change in Geist- lected by affiliated physicians (in a process known as utilization re- feld’s original thinking on tort issues. Geistfeld received an eco- view). But federal law barred most state tort actions against MCOs. nomics degree from Lewis & Clark and a master’s in economics Arlen, with co-author W. Bentley MacLeod, argued that MCOs from the University of Pennsylvania. Early on, he was interested should be held liable for their coverage decisions that ended in using the lessons of economics to figure out legal issues. As ap- with negligent medical care. The most obvious reason is when plied to tort law, this well-established school of thought evaluates an MCO denies a costly treatment that, in fact, was appropriate liability rules in terms of their ability to minimize the social cost for the patient. But the less obvious reason, they argued, is that of accidents. That line of inquiry led him to the law. He returned to physicians are less likely to invest in gaining “expertise” about school for a joint Ph.D. in economics and law at Columbia. medical procedures if their MCOs deny their use. Using the tools Unlike Sharkey, he didn’t find torts in law school to be so in- of economics in a follow-up 2005 paper for the RAND Journal teresting. “Kind of cookie-cutter,” he says. But in the mid-1980s, of Economics, they showed how utilization review acts as a dis- the tort reform movement and product liability cases were the incentive for physicians to gain that expertise to make better rage, all of which Geistfeld found fascinating to observe through treatment choices. All in all, they wrote, the lack of liability re- his economics lens. “I started writing papers [for his Columbia sults in less effective medical care and more negligence. “The mentor, Susan Rose-Ackerman, a professor of law and political cost of not having medical malpractice is increased patient science now at Yale Law School] and did my dissertation on prod- deaths and injuries,” says Arlen. “Those are a real cost in an uct liability,” he recalls. He graduated in 1990, and joined NYU economic perspective. We have to see that as being as much of a Law two years later. cost as a dollar spent on care.” Geistfeld happened to have an office in Vanderbilt Hall near In 2004 the Supreme Court ruled in Aetna Health Inc. v. Davila, two of the most revered figures in the study of legal philosophy: its biggest case on MCO liability, that the federal Employee Retire- Ronald Dworkin, Frank Henry Sommer Professor of Law, and Uni- ment Income Security Act takes precedence over state tort suits. versity Professor Thomas Nagel. Influenced by them, he grew in- “We’ve lost this battle,” Arlen says. trigued by a vision of torts that invokes fairness and justice, the She has also written extensively on the proposal, pushed by idea that if you hurt someone you have committed a wrong and Epstein and others, that one way to reform medical malpractice hence have a responsibility to pay for any losses. “I took the jus- is to use voluntary contracts between doctor and patient. In this tice argument seriously because I was surrounded by really scheme the parties agree on the level of liability—Cadillac or Kia— superb philosophers. I couldn’t just dismiss it out of hand as some- based on how much each patient is willing to pay for levels of safety. thing I didn’t have to worry about,” Geistfeld recalls. “So I started on The patient then gives up the right to sue. The idea is that this would an exercise to try to figure out if I, as an economist, can make sense reduce the overall cost of liability in the health-care system and of what the fairness is that people are talking about in tort law.” allow for more patient autonomy.

18 NYU SCHOOL OF LAW But Arlen, writing in a 2010 University of Pennsylvania Law Bankruptcy would provide a model of aggregation different Review article, argues that contracting over malpractice liabil- from the class action. One advantage is that bankruptcy courts ity would not benefit patients, even well-informed ones, or do can deal better with future or contingenct claims. In mass tort much to reduce health-care costs. The economic incentives are cases, courts now are often bedeviled by new claims of injuries all wrong, she suggests. The problem is that physicians’ incen- popping up post-settlement. The Johns Manville bankruptcy pro- tives to improve care by investing in technology, expertise, and vided for a future claims representative. Bankruptcy is also better safety measures arise from their expected liability to all patients, at coordinating claims—making sure claimants who are in the not just individual patients. So the quality of care that same boat are treated in similar ways and that compensation each patient receives does not depend primarily on levels are truly pegged to the level of injury. Now, the her own decision to impose liability; it depends first plaintiff in a suit could get a $2 million award, on choices made by patients collectively. Each the second nothing, and the third $500,000. “It patient knows that her decision to waive liability shouldn’t matter when you file your suit; that would not materially affect her provider’s expected shouldn’t determine the level of compensation liability costs. Therefore, the patient would be rational or the chance you’ll succeed,” McKenzie says. to waive, reasoning that she will get the benefit even with- The downside, he says, is that bankruptcy is ex- out paying more. “Why should they pay for something they can pensive and that companies might feel a stigma filing for it. He nev- get for free?” Arlen asks. As a result, most patients would waive, ertheless believes it provides lessons for handling mass tort claims and in turn doctors would have too little incentive to invest in even if defendants do not actually end up in bankruptcy court. If patient safety, to the detriment of all patients. nothing else, he wants to inject some “mild skepticism” into the view that aggregated court actions must be modeled on class actions. That view is warranted, according to Issacharoff, who has Markets and Venues worked on several mass actions in private practice, including the Troy McKenzie is exploring a novel, and he thinks better, model 2007 $4.85 billion mass aggregate settlement by Merck for its pain- to handle mass tort cases: bankruptcy. It was used in the 1980s killer and anti-inflammatory drug, Vioxx. “Bankruptcy has the when Johns Manville filed for bankruptcy as a way to aggregate right mindset of a workout,” he says, “whereas the litigation sys- all its asbestos liability in one place. But McKenzie thinks bank- tem still seems mired in individual-by-individual responsibility.” ruptcy concepts can be applied more broadly now to handle other Issacharoff explored this area in “Private Claims, Aggregate mass tort claims. “By its nature, the bankruptcy court and code are Rights,” a 2008 Supreme Court Review article. He noted that courts, quite good at dealing with large-scale creditor claims that might including bankruptcy, are more flexible when overseeing private, be widespread and of high value,” he notes. That’s similar non-class-action, mass litigation compared with the “formalism” to when a manufacturer of a defective product is sued by they bring to traditional class-action cases. hundreds of thousands of claimants—like creditors filing Each NYU Law professor, in his or her own way, is deal- claims in bankruptcy. ing with “big, hard problems of justice,” as Geistfeld puts it. His proposal is a reaction to the current debate over Their particular view of justice will influence how they think. the right way to handle mass tort injuries. Courts are in- But any tort suit stripped down to its bare facts involves creasingly slamming the door on class-action suits as the conflict between one party exercising liberty questions arise over certifying a class of victims. So and another getting killed or injured by it. plaintiff lawyers have moved to what McKenzie Thus, to Geistfeld, the question for all is this: calls quasi–class actions, meaning aggregat- “How do you balance life and liberty in the pur- ing mass torts claims but without the formal suit of happiness? I think that is the fundamental appointment of class counsel and court certi- tort problem.” fication of the class. Yet courts grappling with quasi-class actions continue to rely on concepts Larry Reibstein is an executive editor at that do not fit a post-class action world. Forbes Media.

How do you balance life and liberty in the pursuit of happiness? That is the fundamental tort problem. mark geistfeld, sheila lubetsky birnbaum professor of civil litigation

WWW.LAW.NYU.EDU 19 20 NYU SCHOOL OF LAW IRA RUBINSTEIN, Senior Fellow, Information Law Institute at NYU BURT NEUBORNE, Inez Milholland Professor of Civil Liberties, School of Law: WikiLeaks is the epitome of what some observers NYU School of Law: Widespread secrets in a modern society call the networked fourth estate: reporting and commentary that are a pipe dream. That’s as much a function of technology as is Internet-based, decentralized, published by users rather than anything else. When Gutenberg invents the printing press, all media outlets, more amateurish than professional, and much less of a sudden the people who are in control are terrified because dependent than newspapers on market financing. WikiLeaks be- information is now going to be widely available to the masses. gan in 2006 and in its first several years won awards for exposing Milton is talking about unlicensed printing in Areopagitica. And corruption around the world. in the United States, you had the 18th-century trial of John In 2010, however, it released a video showing U.S. helicopters Peter Zenger, a printer. And so Assange is a modern heir to firing on Iraqi civilians. Then it released hundreds of thousands this notion of technology allowing widespread dissemina- of field reports from Afghanistan and Iraq, having redacted tion of information that is likely to be highly disturbing names of individuals who might be endangered. And finally, it to the existing power structure. worked with the New York Times and other major newspapers on a controlled release of 250,000 State Department cables. These three releases the frequent source have caused a great deal of or subject of front- anxiety, especially in the WikiLeaks, United States, where Private page news stories, has added a distinctly modern First Class Bradley Manning, the apparent source of the spin to unauthorized disclosures of files and data. leaks, is now in solitary con- Last spring, the Law School magazine invited a distin- finement. And Julian Assange, WikiLeaks founder, is con- guished group of faculty and practitioners of both sidered by many to be public enemy No. 1. So, as a group law and journalism to discuss the ramifications for of lawyers and our civil rights and national security of WikiLeaks

and its inevitable offspring. Ira Rubinstein, senior fellow at NYU School of Law’s Information Law journalists, experts in the First Institute, moderated the insightful and provocative Amendment, national security, Internet law, and discussion, which appears here, condensed and edited. journalism, what worries you Watch the full discussion online at law.nyu.edu/news/audiovideo. the most about WikiLeaks or the responses to it? SAMUEL RASCOFF, Associate Professor of Law, NYU School of Law: The thing that’s causing deep-seated anxiety in the national The stuff that comes out of WikiLeaks just reinforced my as- security establishment is that the government seems to be structur- sumption for years that we have radically overclassified informa- ally incapable of maintaining a secret. It’s not just that hundreds tion. When you have a government that is bent on getting as much of thousands of sensitive diplomatic cables, dispatches from the information as it can about individuals and goes through tremen- battlefield, and records of covert operations have now been dis- dous violations of privacy and violations of the Fourth Amendment closed; it’s the sense that, going forward, the government will never and at the same time claims the ability to keep what it does secret, be able to do anything without public knowledge and participation. that’s just a formula for WikiLeaks. It’s a formula for rebellion: Couple that with the recognition that the available legal A government that doesn’t respect my privacy doesn’t have any tools for addressing this state of affairs are actually totally inef- privacy of its own. That’s what we’re living through now. fective. Whereas someone like Manning is certainly vulnerable to JAY ROSEN, Associate Professor of Journalism, NYU: WikiLeaks is criminal prosecution of one sort or another, the likes of Assange the first significant stateless news organization. Up to now, the are effectively immune from prosecution, on par with the New press is free to report on what the powerful wish to keep secret York Times itself. because the laws of a given nation protect it. But WikiLeaks is There are two good news stories, however. One of them is that able to report on what the government wishes to keep secret be- the leaks revealed thus far have not been terribly damaging to cause the logic of the Internet permits it; it doesn’t require the law the reputation of the United States. In some ways, they’ve actu- to protect it. ally enhanced our reputation. American diplomats, generals, The press we have in the United States has, through its own spies actually come across looking quite a bit more conscientious mythology, obscured the way that national law creates it. It sees than some might have suspected. And whereas our legal archi- itself as a counterweight, an adversary, a watchdog, but is actu- tecture is radically ill-equipped, there are plausible information ally embedded with the state. This is one of the reasons that the technology infrastructural fixes to the problem. So that’s got to professional press’s reaction to WikiLeaks has been so distorted, be the way forward. disappointing, and error-strewn. The New York Times reporters

WWW.LAW.NYU.EDU 21 and editors were very insistent on describing Assange as a source. voluptuous Ukrainian nurse and is afraid of flying over water. If he’s just a source, they have rules and constructs for dealing with But we didn’t find out that his people were going to rise up against that. Of course, he’s not just a source because he has what Yochai him. The really useful stuff wasn’t there. Benkler calls the networked public sphere at his disposal. He has What worries me is the message that went around the world: the ability to publish himself. He is, in fact, a news organization. that you need to be careful what you put in writing. Diplomats The real source is Manning, and the fascinating thing is that the in the future will be wary about giving full and frank commen- sources are voting with their leaks. That is, they are choosing to tary. Decisions will not be based on minuted meetings. And that go to WikiLeaks rather than the press. There must be a reason for the entirely justified push for greater information sharing within that. But rather than interrogate that reason, our press has tried to the U.S. government after September 11 will be rolled back. We’ve belittle WikiLeaks, to keep it in a box that makes it more familiar. already seen that with the State Department taking itself out of This insistence that he’s just a source is a little clue that the press the SIPRNet. is freaked out by WikiLeaks. A bigger clue is a finding in Benkler’s This will not lead to what Assange wants, which is greater trans- really excellent paper on WikiLeaks: that 60 percent of all the re- parency. It will actually lead to less transparency, worse decision ports that appeared in newspapers and magazines falsely claimed making, and less accountability, which seems to be a pretty high WikiLeaks indiscriminately dumped all of the cables online. This price to pay for gossip. factual inaccuracy can only be a result of anxiety about WikiLeaks NEUBORNE: The closest analogy is the Pentagon Papers. They and its presence in what had been a very closed club. did prosecute Ellsberg. But the government’s case disintegrated NORMAN DORSEN, Frederick I. and Grace A. Stokes Professor of because it had engaged in far greater violations of things we care Law, NYU School of Law: I doubt if we’ll hear a more important about than Ellsberg’s leaking. So their criminal prosecution came comment than Sam Rascoff’s: The reason for anxiety is ultimately unhinged and the case was dismissed. The Supreme Court never that we can’t do anything about it. We have to rely on individuals definitively decided whether the Times could have been prose- to make decisions about whether or not they’re going to leak, cuted. If you read the Pentagon Papers case very, very closely, you publish, or otherwise disseminate find that there are not five votes for the proposition that no crimi- information. This was also true in the nal prosecution could have been brought against the Times under Pentagon Papers case. The Times had the Espionage Act. plenty of other information that its edi- DORSEN: I’m not sure that the Pentagon Papers case would be de- tors regarded as secret and dangerous, and cided the same way today. The vote was 5-4, and as Burt suggested, didn’t publish. But because of the Internet, White and Stewart concurred on a very narrow ground that would these days we’re relying in a sense on every- not cover the statutory espionage case. But in a way, that’s not too one. That’s us. There are going to be a lot of leaks important. Despite the attention given to the Pentagon Papers that are going to cause harm of some kind or another. case, it was a unique situation where the Times and the Washing- We’ve got to be tough on the people in the government who are ton Post published the materials serially. They told the government like Manning. That doesn’t mean we should subject them to cruel in advance, so then the government could come in and ask for an and unusual punishment, but if you’re in the government, how are injunction. But supposing they published all the information the you going to run the government if people are free to leak things same day? There would be no injunction. It would be a question to the world using their individual judgment? of criminal liability. SIMON CHESTERMAN, Global Professor of Law, NYU School of Law: RASCOFF: Let’s go past the black-letter First Amendment law here I don’t think Assange is Gutenberg. I don’t think Assange is that to a more policy-oriented discourse. The fact is that the New York important. And the WikiLeaks “Cablegate” is not the Pentagon Times in the last decade published at least two stories, one about Papers. WikiLeaks is not the reason why the information got out. warrantless wiretapping, the other about the so-called Swift pro- It’s the reason why the information was widely disseminated and gram, the consequences of which were felt around the world, and hard to put back in the box. None of this would have come out in specifically within the American national security establishment. the absence of Manning. In both cases, the Bush administration had actively engaged the WikiLeaks is just taking advantage of the positive aspects of the New York Times and sought to have them delay publication or not Internet: that it’s decentralized, anonymous, user-driven. These to publish at all, but ultimately the Times did publish both stories. are also the disadvantages. The real tension on the journalistic The implications for national security were more significant than front is that, whereas some of the disclosures during the past the stuff that WikiLeaks put out. decade about government abuse of authority have come out pri- DIANE ZIMMERMAN, Samuel Tilden Professor of Law Emerita, NYU marily because of quality investigative journalism, WikiLeaks is School of Law: It’s very easy to think of WikiLeaks as carving out quantity journalism. Certainly WikiLeaks itself has confessed the entirely new territory, but in fact these problems with leaks of sen- inability to do quality control, and that’s why it had to rely on the sitive information are recurrent. The press has sometimes declined traditional media. to publish things and sometimes regretted it afterward; the Bay of It’s also important to note that the information that comes Pigs comes to mind. The New York Times knew about that before it out was available to three million people in the U.S. government, happened; they were asked not to publish the story. They acceded. which is why PFC Manning had access to it. And most of it, Afterward, President Kennedy said he wished he had either never frankly, is quite marginal. Who didn’t know that Silvio Berlusconi asked them to or they hadn’t paid attention to him. was vain? Or Robert Mugabe is a crazy old man? It would be a shame if the desire to get Assange leads us to bend The things that were influential tended to be accidental. So our law, because there’s an awful lot of important information that there were bits and pieces published about Ben Ali in Tunisia comes out in the form of leaks. Government is not the most reli- that were not commented on until the population of Tunisia able representative of its people. An example occurred recently in started getting access to that information and then used it in their Japan, where they attempted to underplay the damage to the cool- campaign against him. We found out Muammar el-Qaddafi has a ing system of those reactors. There are things that governments do

22 NYU SCHOOL OF LAW each individual document to see if it’s really genuine. And given that these are digital documents, they’re also pretty easy to alter, so you have to have some way of figuring out how we know that all of these documents came from the source they’re supposed to Samuel Rascoff have come from. This is a Leak: Was the director of big concern. intelligence analysis for the BRIAN MARKLEY ’00, New York City Police Depart- Partner, Cahill Gordon & ment from 2006 to 2008. Reindel: I am troubled by the way WikiLeaks went about disseminating this information and, by con- Burt Neuborne trast, I admire the way the Leak: As assistant legal director New York Times went about of the ACLU, appeared as amicus its coverage. What the Ira Rubinstein curiae in New York Times Co. Leak: Worked in Microsoft’s Times did, as described in v. United States (the Pentagon law department for 17 years various stories they’ve pub- Papers case) in 1971. and served as associate lished, was to go in and sit general counsel in charge down with administration of the Regulatory Affairs officials and genuinely lis- and Public Policy group from ten to concerns about leaks that could harm people, and there were 2000 to 2007. things that were redacted as a result. They redacted soldiers’ Social Security numbers. They redacted the names of Afghan informants. because it’s convenient, it’s pragmatically desirable, but it’s not They chose not to publish information about how to disable devices necessarily for the public good. We have to be sure we don’t shut off that themselves disable IEDs in Iraq and Afghanistan. all avenues of public dissemination of controversial information. Each of those things was disclosed by WikiLeaks. While maybe RUBINSTEIN: The Pentagon Papers were obviously very lengthy, it was inadvertent, there were quotes from Assange himself in the but Ellsberg had a specific goal in mind, a single topic. WikiLeaks New Yorker about how he’s not able to look at every piece of infor- promises that all diplomacy, all military action may now be car- mation and there will be what he called “collateral damage” that ried out in the shadow of permanent, massive leaks. Does the scale might harm individuals. I’m not saying that WikiLeaks should make any difference? be prosecuted, because there are ramifications from that, too. ZIMMERMAN: I don’t know how much difference it makes. One of We just need to think about all of this in context. the things about having a gazillion tons of information out there is Lastly, among the things that concern me and members of nobody can process it all. Somebody has to sift through and pick the media is that the reporters’ shield law that was moving for- out what is important in that mass of material. ward in Congress is now basically dead in the water, in part due ROSEN: The scale of the leaks that are possible and the scale of to WikiLeaks. It had passed the House, and while it wasn’t per- their distribution is different than the Pentagon Papers. But no- fect from our perspective—it defined journalists too narrowly— body was asking about scale when they vastly increased the num- we needed something in the wake of developments such as the ber of secrets, right? That’s the problem of scale right there. Judith Miller incarceration. The bill had gone through the House KATHERINE STRANDBURG, Professor of Law, NYU School of Law: and the Senate Judiciary Committee and then was simply shut WikiLeaks is not really the scary story because in fact they haven’t down in the wake of WikiLeaks. just put everything indiscriminately up there; they redacted some ROSEN: WikiLeaks did ask the government if it would help it re- things, they worked with the newspapers, and so forth. If we go dact information that should not be released, and the Pentagon too hard after WikiLeaks, we will drive leakers even further un- told them to go to hell and return all the documents. That should be derground and end up with indiscriminate leaking rather than mentioned when you talk about the difference between the Times consultation with the New York Times. and WikiLeaks. Without some trusted vetting organization, you just have anon- If the press had been doing a better job at being a watchdog, at ymous dumps of information that might well include information uncovering what had to be uncovered—if, for example, we had a that is just fabricated. It could even be disinformation from the press that was capable of preventing a phony case for war from government or from another espionage service. Once you have a being passed into history—maybe the leakers wouldn’t be vot- huge quantity of supposedly leaked material, it’s very hard to vet ing with their leaks by going to WikiLeaks, an upstart, unknown

WWW.LAW.NYU.EDU 23 organization. Maybe they would be going through these allegedly It would be a mistake to believe that governments cannot still more responsible channels of the New York Times. I don’t think keep secrets. They keep vast amounts of information secret still. you can separate press failure from the popularity and viability The material that’s been disclosed was only at the “secret” level, of WikiLeaks. nothing above that level. NEUBORNE: You can’t have a worse situation than we’ve been liv- Yet a slightly different problem is the danger of what happens ing under. One of the more enraging things in recent years has when you do get access to classified information. One is that you been the government insisting on a very broad set of secrecy norms, mistake words like “secret” or “top secret” as meaning “true.” It and then selectively leaking information to journalists in a way doesn’t mean true. It just means damaging if it got released. So that would enhance their particular political views. We’ve been there’s a danger that you overvalue classified information and manipulated as a people now for the past 25 years by selective that you therefore undervalue other information. Likewise there’s leaks that lead us toward war. It is inevitable that institutions like a tendency to think that WikiLeaks is special because of this WikiLeaks will rise up when you overclassify so that vast amounts privileged access. I completely accept the problems concerning of material are secret, and then you selectively release information journalism in the lead-up to the Iraq War, but in the last decade, to handpicked journalists who then write in distinguished news- the big scandals that have been released through traditional papers that shape public opinion. So I acknowledge that there’s a news media were things like warrantless electronic surveillance, cost, Simon. There will be a smaller number of people discussing extraordinary rendition, torture, and I don’t see any suggestion the information. But the question we have to ask is, “Are we better that Manning went to WikiLeaks because he had a scandal that off with secrets or without them?” Fundamentally, we’re better off he wanted to identify that the New York Times was not going to without them. publish. He went to WikiLeaks because WikiLeaks was the venue DORSEN: I have a rather more pessimistic and less idealistic view of choice for volume or quantity disclosures rather than quality about government than my good friend Burt. What he describes investigative journalism. is nothing new. What do we think Franklin D. Roosevelt was RUBINSTEIN: There’s a tension between traditional journalism, doing when he made the destroyer deal with Winston Churchill in despite some of its failures, and the very different approach of 1940? I could go back to Wilson in the First World War, and prob- WikiLeaks over the question of whether and to what extent jour- ably to Lincoln. nalists are using their judgment of the public interest in deciding CHESTERMAN: After the McCarthy hearings, Edward Shils had what to publish, what to investigate, and how to go about this. a wonderful line: Liberal democracy depends on protecting the MARKLEY: WikiLeaks is trying to look like a journalist. If you privacy of individuals and denying it to governments. In theory look at its website, the words journalist or journalism appear all that sounds like a wonderful model, but in practice the last half- over it. But at its core it’s not very journalistic, at least in the tra- century has seen exactly the opposite happen. ditional sense. Assange himself has said, “We are not the press.” WikiLeaks doesn’t provide any analysis, there’s no context in the disclosures, there’s no alternative view presented about the cables and the other disclosures. There’s no one’s interpretation. Those are the sorts of things that we generally associate with being a journalist. Now, it’s true that a lot of journalism is just reporting plain facts. The crime blotter, for example, is just facts. But there is some thought and editorial process that goes into the facts that are disclosed. All that being said, I don’t think it much matters. Whether we call them journalists or not is irrelevant. It may come into play if we start defining who’s covered by a federal shield law and state shield laws. It’s completely irrelevant, Norman Dorsen however, for the purposes of Leak: As general counsel of the First Amendment. It’s well the ACLU, appeared as amicus established that everyone’s curiae in New York Times Co. entitled to free speech, not just v. United States (the Pentagon Papers case) in 1971. journalists. ZIMMERMAN: There’s a big difference between deciding Jay Rosen Simon Chesterman what a journalist is in lay lan- Leak: His blog, PressThink, Leak: Wrote One Nation guage and deciding what a won the Reporters Without Under Surveillance: A New journalist is for First Amend- Borders 2005 Freedom Blog Social Contract to Defend award for outstanding defense Freedom Without Sacrificing ment purposes. Frankly, that’s of free expression. Liberty (2011). a line that nobody’s ever been able to draw. Long before WikiLeaks came along, the

24 NYU SCHOOL OF LAW Supreme Court had essentially thrown up its hands collectively way. Collaboration with the mainstream media can work. But at the idea of being able to draw a real distinction between “the that’s not going to be open to everybody who wants to post a bunch press” and individuals for purposes of speech protection. It’s more of leaks on the Internet. We need something more. a question of a distinction between mass dissemination and pri- CHESTERMAN: As someone based in Singapore, I think one of the vate dissemination. Truthfully, the blurring goes back to our his- great absences in much of the world outside the United States is torical roots because the people who were the first “press” were quality investigative journalism on the level of the New York Times, oftentimes just individuals who had a printing press and individu- the Washington Post. Historically, the most als who had a soapbox. We weren’t talking in the 1800s about a pro- important factor in ensuring accountabil- fessional press. We were talking about people who had big mouths ity of government in these most secret areas, and a way of disseminating what they wanted to say, true or untrue. second only to its self-restraint, has been in- ROSEN: When I started teaching journalism 25 years ago, it was vestigative journalism. very common for professional journalists to say, “We’re the only ZIMMERMAN: The responsible filter, the press profession who’s mentioned in the Constitution.” I used to look at that we idealize, is going into the pits because people who would say this as if they were nuts because it says Con- none of us wants to pay for it. As long as we think that everything gress shall make no law abridging freedom of the press. It doesn’t should be free and we should be able to log on and see anything we say journalism. It doesn’t refer to a profession. want to, we can’t support serious journalism. It costs a lot of money What is so threatening to professional journalists about to have reporters in the field, around the world, and people seem WikiLeaks is that it completely explodes this notion of an occu- quite unwilling to pay for it. That’s a serious problem. pational group that somehow carries out the First Amendment One of the things that I worry about with WikiLeaks, even functions that really belong to the people. The contrast between though we’re an awful lot better off knowing most of this stuff, is professional journalism and WikiLeaks is overdrawn. WikiLeaks the problem of danger to individuals. WikiLeaks has been actually does perform an editorial function. WikiLeaks has not published much more careful than we had any right to expect. There are go- any significant documents shown to be fake. WikiLeaks does en- ing to be others that may get information that can lead to harm to gage in verification before they publish something, and any way individuals who won’t be so careful. That is really a scary problem, you look at it, verifying that this document is what people said it and I don’t know how we deal with that. is is a journalistic act. But one thing for sure is that we would have an awful lot stron- NEUBORNE: The press clause means something. The First Amend- ger ground to stand on in trying to protect the things that are im- ment says “freedom of speech” and “freedom of the press,” so the portant if we actually limited classification to real secrets. Almost press has to mean something more than the freedom of speech, or a million people have clearance—850,000 for the top level of se- else it’s just an inkblot. What WikiLeaks does, at least in my mind, curity documents. That’s an awful lot of people, and even in that is it illustrates the flip side of Jay’s point. There are large numbers category there’s a lot of stuff that simply doesn’t belong there. If we of people who are now performing that function in ways that we tried to protect less, we’d be able to protect it better. never dreamed the function would be performed. ROSEN: Here’s a radical proposal: What if public statements and Bloggers, for example. The whole blogosphere is a massive per- private behavior came more in line? That’s not the way diplomacy version of the press but nevertheless is the press. WikiLeaks falls works: We put this out for public consumption, and then we do into that. Structurally, the press has an enormous role to play, not this other thing. Maybe that is what’s outmoded. We actually just as the disseminator. It wasn’t just a Xerox machine or a loud- have experience with this; I don’t assume that my e-mails are speaker for somebody else’s speech; it was a filtering mechanism. It going to remain private. Now, that hasn’t actually oppressed me. was a way that enabled people like me who don’t have time to verify I’ve realized that I have to actually bring what I believe in line everything that comes over the transom that it will have passed with what I tell people. through some responsible set of hands who did either a good or a On this question of filters, the Internet has a kind of a cycle to it. bad job of deciding what got published, but at least thought about First we get these improvements that allow there to be this exploit. Without that filtering device, I wonder whether free speech is sion of uncontrolled, unfiltered information. And that becomes going to be as powerful. unmanageable. Instead of throwing up our hands and drifting DORSEN: A.J. Liebling wrote that freedom of the press belongs to on a sea of information chaos, what comes is improvements in those who own one, and these days everybody owns one. That’s filters. As my friend Clay Shirky says, “There is no such thing as the world we’re in. information overload; there’s only filter failure.” No matter how The Supreme Court considered Burt’s view on separate protec- much information there is out there, we still need to trust reliable tion for the press, and Burt got one vote: Justice Stewart. One of the accounts. There’s a demand for that. Filters themselves will be- reasons is that liberals such as Justice Brennan believed more pro- come part of Benkler’s networked public sphere. This is actually tection for the press would mean reduced protection for everybody happening right now in reporting on things like disasters, con- else. But let’s talk about the press protection statutes that Brian flicts in Libya and the Middle East where reports come in over the mentioned, the shield laws. We now have many different statutes, Internet, and the Internet itself has to figure out how to filter wand but the press, which is national, is subject to different laws by state. check those reports. It’s a shame that the federal law was rejected, because for the first MARKLEY: I generally agree that public and private statements time we would have had a consistent rule. ought to be the same, but there is also a genuine need for secrets. STRANDBURG: This issue of professionalism versus crowdsourc- For example, one of the WikiLeaks disclosures dealt with the ing, you might call it, is a general issue that the Internet raises and government in Yemen authorizing bombings of al Qaeda bases a real dilemma in many arenas. Is there some mechanism for vet- while they were telling their people they weren’t behind it. That ting? Some of the things that work in other contexts, like restaurant was a positive secret from my perspective. If public statements reviews or Wikipedia, where you just get a lot of people and they had matched the private statements, we wouldn’t have been all tell you what they think, I’m not sure that leaks can work that in a position to attack al Qaeda. There were other examples

WWW.LAW.NYU.EDU 25 involving, for instance, President Mugabe’s opponent who was privately sup- Brian Markley ’00 porting sanctions against Leak: Represented journalists Judith Miller and Matthew Cooper his country while publicly in connection with the federal opposing them. government’s efforts to compel RASCOFF: It’s not simply a disclosure of their confidential question of officials dissem- sources in a criminal investigation bling and then becoming Diane Zimmerman into the leak of CIA agent Valerie Plame’s identity. exposed. Very significant is- Leak: Was an award-winning sues of timing are involved reporter for Newsweek and the New York Daily News from here. Supreme Court opin- 1963 to 1973. ions ultimately see the light Katherine Strandburg of day. You get majority opin- Leak: A former research physicist at Argonne National Laboratory, ions and you frequently get she specializes in cyberlaw and dissents, but we don’t have a culture in which it’s been acceptable information privacy law. for those opinions to circulate in newspapers or WikiLeaks prior to their release. It sometimes seems that the only two institutions in our society that can keep a secret are the Supreme Court and Apple. Can you imagine the outcry if the iPad3 design were exposed to- say this is good, this is protest, so this is the way we’re getting the morrow on WikiLeaks? Secrecy, if only for the sake of preserving democratic legitimacy. But it’s really mob rule. It’s not like protest the official right to time the decision, is a necessary fact of running historically, where the more people you get, the more effective you any government agency or any business. are. Small numbers of people can be extremely effective at these RUBINSTEIN: Let’s look at the role of the private sector. At the re- kinds of Internet shutdowns and other attacks. So on the whole, quest of members of Congress, a number of private companies ei- there is a worry about getting out of rule-of-law territory so that ther shut off WikiLeaks’ domain name access or cut off its hosting we’re no longer talking about protected speech and breaches of services, and then other companies began to eliminate its ability rights being handled through law. to accept payments on the Internet. Is it a problem that the private NEUBORNE: When I was younger, if a newspaper published some- sector, with its very significant role in the Internet infrastructure, thing that offended a very large advertiser, the advertiser would may be in a position to take steps that we would consider improper pull the advertisement. We were convinced that lots of American for the government to take? Or that the government may in fact newspapers were being manipulated by the local advertisers, es- be pressuring private firms to take these steps? pecially about civil rights. STRANDBURG: There’s cause for concern that in fact private enti- I’m glad we’re talking about private controls on information ties are able not only to put into practice government objectives because the last time I looked, seven large corporations in the in ways that the government would not be able to do, as a matter United States owned every single media platform other than an of constitutionality or democratic legitimacy, but that those pri- Internet medium, whether it was a book publisher, a newspaper, vate entities are also able to manipulate communications to serve a magazine, a television station, a radio station. Now, I don’t sug- their own goals. Think back to the previous election when there gest that there’s anything nefarious necessarily going on there, but was a flap about a NARAL Pro-Choice America text message that it is a dangerous idea to allow that kind of private concentration Verizon didn’t let through. Later Verizon said it was a mistake, but over the control of information, especially when we then say that that could have been an exercise of private censorship power. The the private concentration is reinforced and protected by the First circumstances under which communications providers are per- Amendment. The response that I thought was going to emerge mitted to disclose information to the government is regulated, but would be an Internet response—in other words, an alternative set what they can do about taking people’s access to lines of commu- of information that was not controlled by them. nication down is not. The flip side of WikiLeaks is Switzerland, where you have ter- We should also consider what happens after a private party rific privacy and terrific control of information, and unbelievable denies WikiLeaks access to payment systems or Internet service. abuses that go on under the shadow of secrecy. It’s why nobody The response is often also a private one. Organizations like Anony- in South America pays taxes, because they can have accounts in mous, basically hackers, attack the payment providers and so forth Switzerland and no one will find out about it because of privacy in retaliation for their denial of service to WikiLeaks. One can and control about information.

26 NYU SCHOOL OF LAW RUBINSTEIN: The irony is that although we began by describing RASCOFF: Ultimately a relationship between a people and the WikiLeaks as Internet-based, decentralized, et cetera, in effect it’s government depends on some amount of trust. If there’s a preva- the one large organization doing this type of activity. But every lent view that the people are being bamboozled consistently by mainstream media outlet could have its own WikiLeaks operation, the state, by politicians, by the national security apparatus, you as could specific organizations with expertise in different areas have a breakdown in the social contract. More transparency may such as the environment, energy, human rights; each could have be part of the solution. But this tension was not first identified a WikiLeaks operation. Is that a more attractive model? by Julian Assange. It fundamentally implicates 3,000 years of ROSEN: That’s already happening. Al Jazeera has its own drop box. Western political theory about the relationship between what gets TheLos Angeles Times this week put out an appeal to people to send said publicly and what gets done behind closed doors in govern- in government documents that would allow it to find more stories ment, and how accountability functions. like the one in Bell, California, where the city manager was being ROSEN: We need to cut way back on the number of people who paid over $700,000. And there’s an organization, OpenLeaks, that’s think they’re smart enough to say one thing in public and do an- designed to enable any organization, news or non, to have its own other in private and control it. You can’t control it, and that’s one secure drop box. That’s one reason why prosecuting Assange is of the messages of WikiLeaks. idiotic, because the secret is out. CHESTERMAN: The diplomatic angle on this is worth touching on, ZIMMERMAN: One thing that makes you think lovingly about the too. Voltaire said that when a diplomat says yes, he means maybe. system under which we regulate telephones is you have to wonder If he says maybe, he means no. And if he says no, he’s not a diplo- if we should allow so much private censorship. We did tolerate it in mat. In addition to the Yemen example that was highlighted earlier, the past, in part because we thought that it was sporadic and that the sotto voce Arab support for U.S. and Western handling of Iran there would be counterbalances. If Procter & Gamble withdrew its was one of the things that was appropriately kept secret. Now it ads, somebody else might come in and advertise. But what we re- makes it that much harder for certain Arab governments to coop- ally have here is the potential for systematic censorship by virtue erate with the United States. of the basic infrastructure of the Internet. KYLE ALAGOOD, Research Associate, Liberty & National Security STRANDBURG: We tend to think that networks are so very dis- Program of the Brennan Center for Justice at NYU School of Law: How persed, that they’re equal and egalitarian and so forth, but in gen- might we reconcile the recommendations of the 9/11 Commis- eral networks tend to organize themselves into a system in which sion—that all the agencies need to share their information—with there are highly connected nodes and highly unconnected nodes. the problem that seems to exist from someone like Manning, a very The Internet was developed to withstand an attack, but that’s if you low-level army private being able to access the information? How attack a random node. If you attack a supernode, where a concen- do we not clamp down too much on secrecy but also keep the 9/11 tration of connections is, like the domain name server or something Commission’s recommendations intact? like that, the Internet can in some ways be highly concentrated. CHESTERMAN: Rather than limiting the sharing of information, ROSEN: At the time when Amazon cut WikiLeaks off from its rent- another approach would be to move away from the current 1950s able server capacity, Newsweek.com was hosted on Amazon. I was approach to counterintelligence, which relies on polygraphs and astounded that the mainstream media didn’t react much more background checks. The CIA, the NSA, various other agencies have forcefully, because it threatens them just as easily as it threatens less-effective security protocols than many banks. In a bank, se- WikiLeaks. That that could happen, that there was no legal chal- curity is less a matter of background checks than it is a process lenge to it, that Amazon wasn’t ashamed to do that, that the CEO of continuous monitoring to look for suspicious behavior. In the of Amazon never even had to address it, is amazing. We don’t have history of the United States, there have been 130 or so traitors who the Internet we thought we had. have given secrets or sold secrets to the enemy; 128 of them did it for money. This is not something that you can necessarily see in a Ira Rubinstein then invited questions from the audience. background check. JERAMIE SCOTT ’12: Professor Rascoff, although we don’t expect ZIMMERMAN: There needs to be a cost-benefit analysis. I don’t to see the drafts of Supreme Court opinions, there is an expecta- know why Manning had the kind of access that he had. If you tion that the reasoning in the opinion read what’s been written that’s made public is what the rea- about him, he does seem to soning is behind closed doors. That have been a person likely to may not be the case, but there’s that become disaffected. But I expectation. don’t think we can expect to RASCOFF: But see Bush v. Gore. protect secrets in every case. SCOTT: Yes, but the larger point is that We’re going to have to weigh if you’re not trying to maintain con- the value of dissemination sistency in public and private, aren’t against the risk of disclosure. you undermining the people’s abil- In the long run, I don’t be- ity to make a decision? If you’re say- lieve it will have all that much ing you’re going to war because of effect on how people conduct national security reasons or saying their meetings or exchange you’re bombing Libya because we’re information, because we will trying to protect the people but the Jeramie scott ’12 kyle alagood fall back into our old patterns. real reason is oil, aren’t you under- That’s what we do. mining the people from making choices about their government that Illustrations by Erin McGuire is supposed to represent them? Photographs by Juliana Thomas

WWW.LAW.NYU.EDU 27 faculty focus

Faculty Focus

Dean Emeritus Norman Redlich (LL.M. ’55), former Judge Edward Weinfeld Professor of Law, was eulo- gized by Dean Richard Revesz on June 13. Redlich was remembered for his extraordinary leadership and skillful faculty recruiting, and his support for and personal commitment to working in the public interest.

WWW.LAW.NYU.EDU 37 faculty focus Thanks for the memories Of listening to me croon An Extraordinary Dean Each May and every June I may not be Sinatra but I try to keep a tune Dean Emeritus Norman Redlich passed away on June 10, 2011. Below is the eulogy delivered by Dean Richard Revesz at the memorial service held on June 13. Oh, thank you so much. Norman Redlich (LL.M. ’55) was my family’s dean. He was the Thanks, friends at NYU Oh, how the students swore dean who hired me in 1985 to join the NYU Law School faculty Construction noise galore and during whose tenure I served for three years as a very junior But now we’ve Mercer, D’Agostino, Fuchsberg still in store faculty member. And for the last nine years, I’ve been occupying Oh, thank you so much. an office that I had long referred to as “Norman’s office.” I tried to beef up the clinics Norman was also the dean when my wife, While other schools started as cynics Vicki Been ’83, was a law student. He was the But now they are trying to mimic dean who called her to his office to let her Ah, now they know, I told you so. know in a stern but caring way that during her clerkship with Judge Edward Weinfeld, Oh, thanks for the memories perhaps the Law School’s most illustrious We built a school that’s strong alumnus at the time, she would need to up- And now I say so long hold the Law School’s reputation and honor. Just keep your sights on doing right I know you can’t go wrong law school career How lovely it’s been. Norman was an extraordinary dean. Much of the Law School’s current success can be Oh, thanks for the memories traced to Norman’s visionary leadership. The budgets were a chore Norman served in the military during World You always asked for more War II. Then, after graduating from Williams I may have been a headache College in 1947 and receiving his LL.B. from I often was a bore Yale Law School in 1950, Norman earned How lovely it’s been. his LL.M. in taxation from NYU School of Law in 1955. He joined our faculty in 1960, In addition, much of the Law School It is nice to know that his deanship was received tenure in 1962, and became the campus’s current footprint can be attrib- lovely to Norman. It was certainly very Judge Edward Weinfeld Professor of Law in uted to Norman’s vision. Both of our resi- lovely for the Law School. 1983. Norman was a prolific scholar in the dence halls, D’Agostino and Mercer, were areas of constitutional law and professional built during his deanship, and the Law Li- other accomplishments responsibility, and authored an influential brary was extended underground, making His impact on the Law School, by itself, casebook in each of these areas. it possible for us to now connect our two would be considered an extraordinary ac- Norman served as the NYU Law School main academic buildings: Vanderbilt and complishment, but for Norman, it was only dean from 1975 to 1988, and was dean emer- Furman Halls. Norman laid solid ground- one facet of his remarkable career. Norman itus at the time of his death. After stepping work that helped propel the Law School’s also performed significant public service in down as dean, he continued to teach Pro- success well after his deanship. New York City and in the federal government. fessional Responsibility for many years He set a high bar in another area as well. Just three years after joining our faculty, Nor- while he was counsel to the law firm of Every year, the students put together a show, man was appointed assistant counsel to Wachtell, Lipton, Rosen & Katz. called the Law Revue, pronounced Law Re- the President’s Commission on the Assas- Norman’s deanship significantly accel- vuee, to distinguish it from the far more sination of President Kennedy (popularly erated the Law School’s remarkable upward staid Law Review, the publication often known as the Warren Commission), where trajectory, which had begun in the early seen as the hallmark of law school academic he investigated the relationship between 1950s under Dean Arthur Vanderbilt. He success. And at each performance Norman Lee Harvey Oswald and Jack Ruby. He later made many transformative appointments sang a song, written by students, which typi- worked in New York City’s Law Department, to our faculty, including Ronald Dworkin cally poked fun at him. Norman was quite where, among other accomplishments, he and Thomas Nagel, whose Colloquium in self-effacing, and this kind of stage appear- litigated significant cases concerning the Legal, Political, and Social Philosophy in- ance must have been difficult for him, but he city’s pathbreaking historic preservation law. stitutionalized the school’s commitment was an incredibly good sport. In this connection, Norman’s legal acumen to interdisciplinary work; Anthony Am- In 1988, as Norman was getting ready and negotiating skills had already helped his sterdam, who designed our Lawyering to step down from the deanship, he wrote friend Jane Jacobs save Washington Square Program and greatly expanded the Law the lyrics himself. I will not sing them be- Park from Robert Moses’s plans to run a School’s clinical programs; and John Sex- cause this is one area in which, I’m sorry to highway through it. In 1972, Mayor John ton, who followed in Norman’s footsteps say, the talent at the Law School’s helm has Lindsay named him corporation counsel, as dean and led the Law School through 14 gone downhill since Norman’s time. But I the city’s highest legal office, a position he extraordinary years. will read Norman’s lyrics. held until he became dean of our Law School.

38 NYU SCHOOL OF LAW faculty focus conclusion In his wonderful speech at the Law School’s graduation in 1985, Norman commented on another Law Revue (as in Law Revuee) song, titled “I Want it All.” The song had been written by the students from the perspective of a woman, as in “I want to be Scarlett O’Hara, Joan of Arc, Lauren Bacall.” For his speech, Norman wrote a companion song from the perspective of a man, which I will read:

I want to be Mario Cuomo and work pro bono I want to shop at Tower and be a legal power At City Hall in Manhattan in 1972 With Chief Justice Earl Warren I want to run the Fed and play in the Grateful Dead I want to be seen at the ballet and at Shea I want to be Henry K., Dr. J., I.M. Pei, Reggie J., and Dr. K. I want to run the firm I want to be David Byrne I want to be Arthur Ashe and Sam Dash I want to be Andrew Young, Robert Young, Coleman Young, and Neil Young I want to be Clarence Darrow and Robert De Niro I want to get top fees and honorary degrees I want to fight the crooks, be Albert Brooks

At the 1983 Annual Survey dedication to Negotiate Ewing’s deal, eat a five-star meal A University meeting in 1983 Justice Thurgood Marshall Be a loving dad, a supportive mate Have an East Side pad, be Secretary of Norman also was devoted to improving barber shop. He told me that when he was State the state of the legal profession. Among a student, he started a protest because the I want to be Earl Warren, and drive a car other significant leadership roles, he was African Americans at Williams wouldn’t be that’s foreign chair of the American Bar Association’s served in the barber shop—and he changed I want to win big trials, run four-minute Section of Legal Education and Admissions that. He used it as a lesson that you can fight miles to the Bar and a member of the ABA’s House injustice pretty much anywhere.” Clean up the sludge, and be a judge of Delegates. A decade later, as a young lawyer in the I want it all! In the ABA, he was one of the leading 1950s, Norman courageously challenged the voices for promoting and improving clinical tactics of Senator Joe McCarthy. On behalf Those of you who knew Norman well legal education in law schools. He worked of the National Emergency Civil Liberties know how close he came to having it all, closely with Robert MacCrate and our col- Committee, he defended people blacklisted even by the standard of this song. But to leagues Tony Amsterdam and Randy Hertz because of their refusal to answer questions the Law School graduates whom he was ad- on the MacCrate Report, which sought to before the House Un-American Activities dressing, for whom accomplishment of this narrow the perceived gap between legal Committee. Subsequently, then-Representa- magnitude might have seemed unfathom- education and the legal profession. In the tive Gerald Ford sought—unsuccessfully—to able at the time, he had the following words years following the issuance of that report, have him removed from the Warren Com- of wisdom: “If you maintain a good sense of edux R /

s he played an important role in implement- mission as a result of these activities. balance, a bit of humor, resist the pressures

ime ing the report’s blueprint for improving the Just before joining the NYU faculty, while to be narrowed into narrow grooves, and teaching of professional skills and values in serving as counsel to the New York Commit- define what you want in terms of a personal law schools. tee to Abolish Capital Punishment, Norman and professional life of meaning and con- ew York T brought one of the early challenges to the cern, then, indeed, you can have it all.” By he N T / civil rights and civil liberties death penalty. Later in his career, he was on this standard, there is absolutely no doubt Norman was passionately committed to civil the Executive Committee of the NAACP Le- that Norman had it all. liberties and civil rights. Steven Epstein ’86, gal Defense and Education Fund, and chair To conclude, Norman’s extraordinary a Law School alumnus and also a Williams of the National Governing Council of the energy and powerful leadership inspired graduate, reported the following: “Dur- American Jewish Congress. He also served not only generations of students and fac- : Barton Silverman Silverman Barton : ing my time at NYU Law I had some great as a co-chair of the Lawyers’ Committee for ulty, but also a much broader community of 1972 conversations with him about Williams Civil Rights Under Law and received that lawyers and public servants. Dean Redlich: and his love for the place. There’s only one organization’s highest award—the Whitney Vicki and I, as well as so many others,

redlich in commercial street in Williamstown and one North Seymour Award—in 1993. will deeply miss you.

WWW.LAW.NYU.EDU 39 faculty focus New Chairholders Deliver Inaugural Lectures

richard epstein helen hershkoff daryl levinson Laurence A. Tisch Herbert M. and Svetlana Wachtell David Boies Professor of Law Professor of Constitutional Law Professor of Law and Civil Liberties

Citizens United v. Federal Election The Private Life of Public Rights: How Constitutions Work Commission: The Constitutional State Constitutions and the (When They Work) Right that Big Corporations Common Law january 25 Should Have but Don’t Want february 3 september 27 While constitutions might be imperfect, Hershkoff observed that state courts might Levinson noted, they can be deeply Epstein waded into a complex area need to apply common law in concert rooted and enduring. In this respect, of constitutional law pertaining to with state constitutional norms in order to he likened them to the New York City regulation of campaign speech. The protect individual rights. subway, bad marriages, and Microsoft’s Citizens United ruling struck down por- operating system. tions of the McCain-Feingold law that “Whether a constitutional restrict corporate and union election “The positive puzzle of spending. Epstein said critics who say right to free speech ought to the case is at odds with the intent of run against a private land- constitutionalism lies in the framers and threatens to drown out explaining the willingness individuals and take control of politics owner raises a lot of thorny are wrong on both counts. issues. A commercial shop- and ability of powerful politi- ping center is just that: a cal actors to make sustain- “Hysterical predictions of place where you are expected able commitments to abide transformation are heavily to shop until you drop. But by and uphold constitutional overblown. It will be politics shopping malls also func- rules even when these rules as usual, which is not to say tion as the new downtown: a stand in the way of their that it will be politics as it place where ordinary people immediate interests.” should be.” gather and talk.”

Svetlana and Herbert Wachtell ’54 Epstein and Wilma (Billie) Tisch with Hershkoff Levinson and Boies (LL.M. ’67)

For lecture videos: law.nyu.edu/2011mag/lectures.

40 NYU SCHOOL OF LAW faculty focus Shaping Minds and Morals in Battle Moshe Halbertal reinforces a code of conduct that allows for principled behavior in wartime. any philosophers have grap- intention of not harming.” Speaking to those Halbertal recognizes that war is not an eth- pled with the ethics of war— who were charged to fire artillery in the re- ics seminar and takes soldiers’ objections Mill, Rawls, Kant, and Aristotle cent Gaza war, Halbertal learned that the to aspects of the code seriously. (“You want M among them. But in 2000, Moshe way war is currently fought, a target is of- me to go through the principles of avoid- Halbertal, along with lawyers, generals, and ten not visible to whoever is on the ground. ance, proportionality, etc., when I am under other philosophers, worked with a standing A soldier is given coordinates by central fire?!”) Halbertal’s answer is that soldiers army to draft a new Israeli military code command, which is of ethics that would test their philosophi- miles away. In other cal ideas in real life-and-death situations. words, the soldier firing Halbertal’s work didn’t stop once the code the missile is not in a po- was written. Now Gruss Professor of Law sition to apply the ethical at NYU, he spends each spring at Hebrew principles in the way the University of Jerusalem, and on his days off team desired. His or her teaches ethics to commanders and lectures individual ethical auton- to platoons at the Israel Defense Forces omy has to be replaced Command and Staff College. by “a shared world of “Professor Halbertal can be philosophi- trust within the opera- cal and very practical with two feet on the tion because of such ground, which is essential, because what heightened divisions of he teaches will be put into action tomor- labor,” as Halbertal put it. row by our commanders,” says Noam Thinking through how to Tibon, IDF commander in charge of the of- create this shared world ficer training school. “He can deal with any of trust is one of Halber- problem in three or four dimensions and is tal’s newest endeavors. reviewing his views at all times.” How the soldiers now As a small country not at peace with think about the capture all of its neighbors, Israel has seen much of their comrade Shalit is change since 2000. While the capture of another challenge to the soldier Gilad Shalit (2006), the war in Gaza application of the code. (2008-09), and the raid by Israeli forces on The principle of propor- a flotilla of “Gaza freedom” activists (2010), tionality, as modified for for example, have not forced revisions to this code, states that “if the code, they have provided new ques- you foresee a collateral tions for Halbertal, who is still engaged in harm to enemy civilians making sure the code addresses and ac- (even after doing every- counts for modern realities. By speaking to thing you can to avoid different groups of soldiers who have been doing so), you have to weigh whether that must train and internalize these principles engaged in recent conflicts, Halbertal has military achievement is proportional to before going to battle so that they become learned some of the reasons that the sol- the death you will cause.” A minor military second nature. This ability to act from an diers on the ground have had difficulties victory is not enough to justify the collat- absorbed ethical character rather than applying the code, and even about times eral death of many civilians. But when the having to calculate consequences is sim- the code has failed to translate to the field. other side thinks capturing one soldier or ilar to Aristotle’s concept of phronesis, or shooting down one tank can practical wisdom. embolden them, especially Commander Tibon believes that al- It is not enough to say, through the use of propa- lowing even the lowest-level soldiers to be “I am not intending to harm ganda and modern media, inspired and challenged by one of Israel’s the soldiers in the field who top philosophers keeps them open-minded civilians.” You have to show are trying to act ethically and reminds them of the importance of can lose their bearings and their jobs in the army. “Moshe is very smart, intention of not harming. misapply the principle of and he takes you to a very high point in proportionality. “You can’t your thinking,” says Tibon. “It is not two For instance, one of the principles the be obsessed with how it will look to the plus two is four. There is no clear-cut right team of ethicists codified in 2000 stated: other side,” teaches Halbertal. “This was an and wrong, and so he has to teach us how “One must do everything possible to mini- element that I never understood fully in the to think beyond simplicity.” Such high- mize the enemy’s civilian casualties. It is not nature of this war.” mindedness, one can hope, might eventu- enough to say, ‘I am not intending or did not Soldiers and commanders bring their ally lead to fewer conflicts in the Middle intend to harm civilians.’ You have to show own battle experiences into the classroom. East along Israel’s borders. Micah Kelber

WWW.LAW.NYU.EDU 41 and qualifies, Grayling says, as a debate- changer: “We are in at the birth, here, of a Latest Book Makes Raves modern philosophical classic, one of the Critics embrace Dworkin’s opus on truth, morality, and justice. essential works of contemporary thought.” Writing in New Humanist, reviewer rank henry sommer professor takes issue with Dworkin’s attack on meta- Conor Gearty says that, in Justice for of Law Ronald Dworkin published ethics, or the study of whether values really Hedgehogs, “all of Dworkin’s great talent is F his most comprehensive exist (as opposed to the question on display,” and likens reading this philo- book, Justice for Hedgehogs, in of what actual moral rights and sophical exploration to “being on an ideas January. It is an ambitious and duties we have). “Dworkin’s con- roller-coaster: periods of calm punctuated wide-ranging exploration of cern to avoid leaving metaphysi- by extreme excitement as you try desper- moral, legal, and political phi- cal hostages to fortune is taken ately to hang in there while being pushed losophy. This spring Dworkin’s by him, rashly, to justify a prin- back and forth, in and out of your comfort arguments were challenged in cipled incuriosity about moral zone, albeit with occasional brief returns some academic corners, but metaphysics,” Lang writes. “But to the known to calm you down.” overall the book has met with the arguments he deploys do not After having opened his review with critical acclaim. justify this incuriosity.” the rueful observation that academic The hedgehog of the title is No such reservations were scholarship today is often akin to staying a reference to the Greek saying evident in a glowing review in at a hotel—well-furnished rooms but little that while the fox knows many the New York Review of Books. meeting of the minds with other guests— things, the hedgehog knows one Dworkin weaves together ethics, Gearty concludes with this observation: big thing. Dworkin’s big thing is morals, interpretation, politics, “If Ronald Dworkin were a hotel he would the unity of value, which is, as he free will, and law into a complex be the Savoy, but a Savoy that is genuinely writes in the book, “the hedge- argument to make this case, re- open to all, doors always open, guests spill- hog’s faith that all true values viewer A.C. Grayling notes, and ing into the reception rooms, talking, argu- form an interlocking network, then explores the practical im- ing and laughing too.” that each of our convictions plications. “That is what gives Dworkin created a blog (justicefor- about what is good or right or the overall argument its ur- hedgehogs.com) to respond to the book’s beautiful plays some role in supporting gency, for Dworkin’s principal aim in es- critiques, including exploring unpublished each of our other convictions in each of tablishing unity of value is the familiar and comments on the book made by University those domains of value.” central one for him: to show how law and Professor Samuel Scheffler. On Gearty’s In his essay in Problema, “How Far government can be based on political mo- Savoy equation, Dworkin wrote, self-dep- Can You Go with Quietism?” Gerald Lang rality.” The book develops theories of lib- recatingly, “That hotel, I note, was closed a concludes that “Dworkin’s arguments are erty and economic justice, democracy, law few years ago as in urgent need of modern- deeply powerful and suggestive,” but he and ethics, among many other subjects, ization. (It has since reopened.)” In Memoriam: Howard Greenberger ’54 howard greenberger, professor of law A Root-Tilden alumnus, Greenberger Sarah Woo emeritus, passed away on July 5. A member served on the Law School’s Board of Trust- of the NYU School of Law faculty from 1961 ees for 20 years, became a life member of (1978-- 2011) to 2001, Greenberger con- the Weinfeld Program, centrated on comparative and was a director of the Assistant Professor Sarah Woo passed and international law and Law Alumni Association away in July after also wrote about contracts, for several decades. He es- falling ill suddenly comparative procedure, tablished the annual How- in May. and the legal profession. ard Greenberger Award for Woo joined the He worked diligently to Outstanding Achievement NYU Law faculty in enhance the LL.M. and in Comparative Law. June 2010 and was M.C.J. programs as well as “He was generous with profiled in last year’s magazine. A spe- the Law School’s scholarly his ‘out-of-class’ time cialist in financial regulation, corporate ties with China. and could often be found bankruptcy, and credit risk management, During his tenure, sitting in the student she used sophisticated empirical research methods to inform financial regu- Greenberger was an asso- coffee lounge at a table latory reform. She taught a new course on ciate dean; director of the surrounded by students,” international financial regulation. Practising Law Institute, Oscar Chase, Russell D. “Sarah was a gifted colleague whose the Institute of Compara- Niles Professor of Law, says intelligence and cutting-edge scholar- tive Law, and the Inter-American Law Insti- fondly. “He took special care of the many for- ship made her an important member of tute; and editorial board chair of the Journal eign students who flocked to his class and our intellectual community,” said Dean of Legal Education. He received several NYU regarded him as a bridge to the U.S. legal Richard Revesz. “Her time with us was Alumni Association awards and the Law system. He was a warm and supportive col- much too brief.” Alumni Association’s Legal Teaching Award. league who will be much missed.”

42 NYU SCHOOL OF LAW James Eustice (1932--2011) ot everyone can have had my good fortune to have Jim as a teacher, a mentor, a colleague, N and a friend. Jim and I taught together at NYU Law for 45 years and practiced law as colleagues for 40—first at Kronish Lieb, then more recently at Cooley after the firms merged. There was a syn- ergy in our relationship that was unique. I first met Jim in 1964 when he was my Tax Accounting professor. I thought I was a good student and a smart guy. But every time we got into the details of a code section, regulation, or case, I wondered whether I had actually read the material he had assigned. His ability to see issues in words and drill into the meaning of positions taken by Congress, the commissioner, or the courts was unequaled. We didn’t talk much during those first Lieb, he asked me to join him in building After having been put through the in- six weeks. He was immersed, as he was to its tax department. We had a uniquely tellectual wringer by Jim in Tax Account- the end of his life, in keeping the Bittker symbiotic relationship: Jim dressed in ing and then Advanced Capital Gains, I and Eustice Federal Income Taxation of track clothes and hated dealing with ended up literally on his doorstep in 1966. Corporations and Shareholders, the semi- clients but had an astounding depth of I had graduated and returned to Florida nal work on corporate taxation, current. knowledge. I wore starched shirts and bow to practice when Jerry Wallace, founder I surmised we had a budding friendship, ties and was in my prime dealing with cli- of NYU Law’s Graduate Tax Program, however, when he offered to let me copy ents. Together, we had great successes. invited me to join the faculty. But Jerry his notes to teach Tax Accounting. In fact, Jim was a brilliant lawyer and a great hadn’t arranged for me to have an office. as the years went by, he also let me copy mentor and colleague. I often said he did Jerry placed me temporarily in Jim’s of- his notes for Advanced Capital Gains and the thinking and I did the talking, and I fice. That would not have been too bad, Reorganizations. For those of you famil- often struggled to keep silent so he could but Jim had a unique habit: He collected iar with Jim’s handwriting and his habit finish thinking. In fact, he never did fin- his used Styrofoam coffee cups, and all of writing notes in his copy of the Internal ish. Jim’s mind was an unrivaled source five years’ worth was on the extra desk in Revenue Code, you might conclude that of tax knowledge. He always sought to go his office. So my first job as assistant pro- he really wasn’t doing me a favor. deeper in any analysis. I will forever be in- fessor of law was to find a home for Jim’s I thought he was, however, and he must debted to Jim for all our years of friendship. cups without otherwise disturbing his have thought he was, because in 1971, af- —Stephen Gardner (LL.M. ’65) very organized piles of papers. ter agreeing to become counsel to Kronish Adjunct Professor of Law

“Jim was my teacher in the “We partied together, wor- “There can be no question “Jim broke the mold in tax early 1970s. He was my mentor shipped together, were part of about Jim’s enduring contribu- academe, along the lines that from the time I began teach- the same generation of young tion to the academy and the Larry Bird did in basketball: ing in the Tax Program in 1972. faculty families at NYU Law tax world. Say ‘B and E’ to any different, even peculiar, stub- He was my colleague—I had that grew up together, and tax lawyer and they will know born, relentlessly independent, the privilege and joy of seeing propped each other up during instantly to what you are refer- dignified but occasionally fond him, sharing lunches and life’s inevitable potholes. ring. It is on every tax lawyer’s of zany adventure, quietly dinners, and discussing and There was a competitive side desk, in every law library, friendly, kind-hearted, devil- debating the law on a daily to Jim, which showed in his and read by generations of ishly funny, extremely bright basis for decades. He was my marathon running, his pride corporate tax students. It is and hardworking, committed friend. Jim’s amazing mind and in the success of our tax the first place everyone looks to professional excellence, memory, and his caring human- program, and the supremacy for an answer to any corporate loyal, and ultimately, with self- ity, brightened my existence of his great text, but it never tax question, and, as I say to knowledge but not arrogance, for more than half of my life. invaded our friendship that, my students, if the answer isn’t in a class very few could join. Teacher, mentor, colleague, through all his years of tri- there, there is no answer.” Underneath the seemingly shy, and friend: I will miss umphs and frustrations, was stolid exterior was an always- deborah schenk (ll.m. ’76), Jim profoundly.” deep and abiding. It still is.” marilynn and ronald grossman churning, even introspective professor of law mind. I will miss him.” harvey dale, university m. carr ferguson (ll.m. ’60), professor of philanthropy adjunct professor of law john steines (ll.m. ’78), professor of law

WWW.LAW.NYU.EDU 43 faculty focus On a Shifting Balance of Power rofessor catherine sharkey, a Sharkey focuses her teaching on torts. leading expert on federal preemp- In her research, she has been studying the P tion in the realm of products liability, interplay between private and public law won a prized fellowship from through the lens of torts and the John Simon Guggenheim products liability. Sharkey Memorial Foundation. combines a love of theory For her fellowship project, and a devotion to practical Sharkey is examining the es- problem solving in both her tablished view of preemption classes and her scholarship. and analyzing the expansion She studied economics as of federal power. “I hope to an undergraduate at Yale, show that the preemption where she also received her An Ethical Choice debate is no less than a de- law degree; her work on the bate over the fundamental bail bond system and racial Stephen Gillers ’68, Crystal Eastman allocation of power between discrimination earned her Professor of Law, has won the 2011 the federal government and the states,” Yale’s prize for the best original economics Michael Franck Award from the Center she says, “and one that is not likely to be thesis. As a Rhodes Scholar at Oxford, she for Professional Responsibility of the resolved anytime soon.” pursued a master’s in economics. American Bar Association. The Michael Franck Professional Re- sponsibility Award is bestowed on those with career commitments in legal ethics, ALI Names Bar-Gill Top Young Scholar disciplinary enforcement, and lawyer professionalism who “demonstrate the professor oren bar-gill received the the basis for the ALI medal were “The Law, best accomplishment of lawyers.” Gill- prestigious American Law Institute’s first- Economics, and Psychology of Subprime ers, a professor at NYU School of Law ever Young Scholars Medal. According to Mortgage Contracts,” published in the Cor- since 1978, focuses his research and ALI, the award was created “to call atten- nell Law Review in 2009, and “Seduction by writing on the regulation of the legal tion to academic work that is practical, fo- Plastic,” in the Northwestern University Law profession. His widely used casebook cused on the real world, and can influence Review in 2004. Regulation of Lawyers: Problems of Law and Ethics is in its eighth edition. Gillers, law for the better.” Bar-Gill was recognized Law school deans nominated more than who is consulted and quoted widely in for “his insights into consumer psychol- 70 candidates, all professors in their first legal and popular media as an expert on ogy, which are the basis for his proposal of decade of teaching, and Bar-Gill was one legal ethics, currently sits on the ABA specific legal solutions to match specific of only two to receive the medal. Last fall, Commission on Ethics 20/20, which is problems in the markets for cell phones, Bar-Gill also became associate editor of Be- thoroughly reviewing the ABA Model subprime mortgages, and credit cards.” havioral Science and Policy, a new quarterly Rules of Professional Conduct and the In 2009, Bar-Gill and Rebecca Stone ’09 journal sponsored by the Rand Corporation U.S. system of lawyer regulation in the (who is currently clerking for U.S. Supreme that aims to translate behavioral science context of technological advances and Court Justice Stephen Breyer) co-authored research into public and private policy so- developments in global legal practice. “Mobile Misperceptions” in the Harvard lutions in the public interest. Journal of Law and Technology. The piece, which discussed consumer confusion regarding cell phone contracts, attracted the attention of the Federal Communications Prize Finds Howse in Good Company Commission, which invited Bar-Gill to The journal Global Policy the focus is narrowed to present the paper’s findings. and members of the Glob- whether the parties to Bar-Gill also consulted al Public Policy Network a specific treaty are in with FCC staff who were named an article by Rob- compliance with its rules,” drafting new regulations ert Howse, Lloyd C. Nelson says Howse about the for the cell phone and Professor of International main point of the article. other telecommunications Law, a winner of its 2010 For example, he says, “the Best Article Prize. Howse emerging climate regime, service markets. Other and co-author Ruti Teitel while plagued with com- articles by Bar-Gill of New York Law School pliance issues, is actually that served as and the London School of shaping behavior even of Economics won for “Be- states not parties to it.” yond Compliance: Rethink- Howse and Teitel’s ing Why International Law Really Matters,” piece tied for the prize with an article which appeared in Global Policy’s May 2010 co-authored by Joseph Stiglitz, the Nobel issue. “We are liable to miss many of the Prize–winning economist, and physicist- important effects of international law if turned-economist Claude Henry.

44 NYU SCHOOL OF LAW faculty focus A Look Back orman dorsen, frederick i. and Grace A. Stokes Professor of Law and N co-director of the Arthur Garfield Hays Civil Liberties Program, celebrated his 50th anniversary on the faculty last spring. Dorsen recalls his pivotal role in the Law School’s rise to national prominence since his arrival in 1961. “The school at that time was not a first-rate institution,” he says. So in 1965, Dorsen drafted a frank memorandum to his fellow faculty members, signed by five others. “We spelled out why we thought the school was not what it could have been, even though it had many Dorsen listening to tributes when the 2001 Annual Survey of American Law was dedicated to him strengths,” he says. “The final point was, If you’re not improving, you’re declining. The only thing to do is to get better, and we have With his half-century of perspective, At the Law School’s end-of-the-year din- to do certain things to get better.” Dorsen Dorsen considered the possibilities for NYU ner this May, Burt Neuborne, Inez Milhol- acknowledges that had he not just received Law’s next 50 years: “I do believe it will con- land Professor of Civil Liberties, said it is no tenure, “I probably wouldn’t have written tinue to become globalized. Also, the school coincidence that the Law School has risen the memorandum.” has become much more interdisciplinary. so prominently during Dorsen’s 50 years. Enacting a reform agenda inevitably That changes the way people think about the “Norman was there every day, teaching, created conflict. “There were a lot of dis- law. People who came to law teaching when writing, shaping the law, but also carrying putes over curriculum, appointments, I arrived were usually very bright law gradu- out the hard, often thankless tasks of fac- the general direction of the school,” says ates, may have practiced two or three years, ulty governance that made the transition Dorsen. “In these disputes, no one person had a clerkship or two. They thought like possible. He was an apostle of excellence is always right, and that certainly is true for lawyers and wanted to solve legal problems. driving us to improve…. I can’t remem- me, but it was important to have a process Nowadays, a large proportion are people ber half the committees he’s chaired, the that was open and the ability to debate the who come with the perspective of another problems he’s solved, the institutions he’s issues. As the faculty improved, the product discipline—history, philosophy, linguistics, launched—each with characteristic good was much stronger, and the Law School, in even science—and they look at problems in judgment, commitment to detail, and bril- turn, became a better law school.” a different way.” liant strategic insight.” Three Lectures and the British Academy university professor jeremy waldron made about the exigencies of market econ- Five Degrees of delivered three lectures—one on each of omy untrammeled by too much regulation— three successive days last May—as part of better to take that case directly, rather than Commendation the Hamlyn Lectures series, administered muddy the waters by pretending that some Four distinguished faculty received by the University of Exeter and held annu- laws have transcendent status under the honorary degrees from around the ally since 1949 to give distinguished legal auspices of the Rule of Law and that other world in the 2010–11 academic year. minds an opportunity to further knowledge laws—like environmental regulations— Philip Alston, John Norton Pomeroy and understanding of the law. barely qualify for legal respect at all.” Professor of Law: honorary doctorate of Waldron’s overarching topic Two months after he delivered these laws from Maastricht University. was “The Rule of Law and the prestigious lectures, Waldron was elected University Professor Jerome Bruner: Measure of Property.” Waldron a fellow of the British Academy, which was honorary doctorate from Argentina’s National University of Rosario. argued that, despite his use of established by a royal charter in 1902 to Theodor Meron, Charles L. Denison Locke’s phrase “the measure of champion and support the human- Professor of Law Emeritus and Judicial property,” the non-Lockean ities and social sciences in the Fellow: honorary doctorate of law from aspects of the origin, le- United Kingdom and interna- the University of Warsaw. gal status, and moral tionally. He joins two other University Professor Joseph Weiler, force of property de- NYU Law professors, Uni- Joseph Straus Professor of Law and serve attention: “It versity Professor Thomas European Union Jean Monnet Chaired is better in the end Nagel and Frank Henry Professor: honorary doctorate in law to evaluate laws on Sommer Professor of Law from CEU San Pablo University, and an- their own merits— Ronald Dworkin, among other honorary doctorate in law from Humboldt University of Berlin. and to make what- the academy’s nearly 900 ever case can be distinguished scholars.

WWW.LAW.NYU.EDU 45 faculty focus tank. Goodman, also a member of NYU’s Department of Sociology and Department Laurels and Accolades of Politics, is an expert on international academy inductions punishment has persisted in the United human rights, international humanitar- The American Academy of Arts and Sci- States, even though most Western countries ian law, international relations, and public ences named Marcel Kahan, George T. abolished it long ago. The PROSE Awards are international law. Lowy Professor of Law, and Geoffrey Miller, sponsored by the Professional and Scholarly Stuyvesant P. Comfort Professor of Law, as Publishing division of the Association of excellence acknowledged fellows in April. They join 210 other lead- American Publishers. The American Immigration Lawyers Asso- ing “thinkers and doers” who were named Peculiar Institution won additional rec- ciation awarded Professor of Clinical Law to the highly prestigious honor society, in- ognition in August from two sections of the Nancy Morawetz ’81 the 2011 Elmer Fried cluding actress Helen Mirren, Microsoft 14,000-member American Sociological As- Excellence in Teaching Award for outstand- co-founder Paul Allen, and Bob Dylan. sociation: the Mary Douglas Prize for best ing professors in the area of immigration book from the Society of Culture section, law. Morawetz co-founded the NYU Immi- council election and the Barrington Moore Award for best grant Rights Clinic, an innovative program José Alvarez, Herbert and Rose Rubin Pro- book from the Comparative and Historical combining litigation and non-litigation fessor of International Law, was elected Sociology section. work on behalf of individual immigrants, to the Academic Council of the Institute advocacy groups, and community-based for Transnational Arbitration, which runs council membership organizations. For the past two years, she programs on transnational arbitration of Ryan Goodman, Anne and Joel Ehrenkranz has also chaired the Supreme Court Im- commercial and investment disputes and Professor of Law and co-chair of the Cen- migration Law Working Group, a national functions as a global forum on contempo- ter for Human Rights and Global Justice, coalition that monitors immigration cases rary issues in the field. has been elected a member of the Council at the Supreme Court and works to en- on Foreign Relations, a nonpartisan think sure that those cases benefit from the best labor law award possible advocacy. Samuel Estreicher, Dwight D. Opperman Professor of Law, director of the Center for agency appointment Labor and Employment Law, and co-direc- Dean Richard Revesz was sworn in by tor of the Dwight D. Opperman Institute of Supreme Court Justice Antonin Scalia as Judicial Administration, won the 2010 Su- a public member of the Administrative san C. Eaton Scholar-Practitioner Award Kahan Miller Conference of the United States (ACUS) in from the Labor and Employment Rela- December. ACUS, an independent organi- tions Association. LERA gave the award zation dedicated to improving the fairness to Estreicher in January “in recognition of and effectiveness of the administrative outstanding research, teaching, and prac- process at federal agencies, was reestab- tice emphasizing the value of bringing Alvarez Estreicher Fox lished in 2010 after a 15-year hiatus. together the academic and practitioner communities.” philosophy prize University Professor Jeremy Waldron lifetime achievement award received the American Philosophical In February, Eleanor Fox ’61, Walter J. Society’s Henry M. Phillips Prize in Juris- Garland Morawetz Derenberg Professor of Trade Regula- Goodman prudence for 2011. The Phillips Prize tion, was honored as one of 10 lead- recognizes outstanding lifetime con- ing antitrust lawyers in the world. The tributions to the field. A prolific scholar, journal Global Competition Review Waldron most recently published Tor- (GCR) gave her a Lifetime Achievement ture, Terror, and Trade-Offs: Philosophy Award for her “decades of outstanding for the White House, a collection of writ- Revesz Waldron Yoshino contributions to the field of competition ings on the moral, political, and legal is- law and policy.” The award, voted on by sues involved in the post-9/11 response more than 1,500 GCR readers, goes to to terrorism. an individual whose career has had a lasting and transformational impact board election on the field. Kenji Yoshino, Chief Justice Earl War- ren Professor of Constitutional Law, book award was one of five newly elected members David Garland, Arthur T. Vanderbilt Profes- of Harvard University’s Board of Overseers. sor of Law and a professor of sociology, has The 30 overseers, nominated by the Har- won the 2010 PROSE Award in the category vard Alumni Association and elected by of law and legal studies for Peculiar Institu- their fellow alumni to six-year terms, exert tion: America’s Death Penalty in an Age of broad influence over Harvard’s strategic Abolition. Garland’s book, published last vision, including the quality of its educa- October, explores the reasons why capital tional and research programs.

46 NYU SCHOOL OF LAW Search

Richard Revesz During the last nine years, the Law School Magazine has introduced each of the 38 new members of the NYU Law faculty (to be joined by the five additionsprofiled in this issue). Here, we imagine these distinguished professors posting on a certain well-known social networking site.

News Feed Top News • Most Recent

Jeremy Waldron Arthur Miller I see the Queen named you a Commander of the Order of the British Empire. Congrats!

Robert Howse News Feed Ditto. And Jeremy—I just saw that you won this year’s Phillips Prize! Events Messages Richard Epstein Wall Robert, congratulations on your Global Policy Journal’s Best Article win. Info Arthur Miller Thank you! And the Bradley Prize, Richard? Not so bad yourself! Well done.

Recruits (38) Margaret Satterthwaite ’99 CHRGJ’s report on sexual violence in Haiti is gaining traction in the press. Lily Batchelder on leave Smita Narula and Ryan Goodman like this.

Ryan Goodman John Ferejohn joined the Council on Foreign Relations.

José Alvarez likes this.

Moshe Halbertal Cynthia Estlund Back from Capitol Hill—testified on recent developments at the NLRB, and assured them the sky is not falling!

Samuel Issacharoff likes this. Roderick Hills Jr. Stephen Choi Justice Scalia just cited a paper I co-authored with Linda Silberman, “Transnational Litigation and Global Securities Class Action Lawsuits.” Mitchell Kane Franco Ferrari Speaking of transnational law, I just returned from the Conflict of Laws in International Commercial Arbitration conference I organized in Verona.

Florencia Marotta- Wurgler ’01 Deborah Malamud Had a great day with the AnBryce Scholars, attending oral arguments and dinner at the U.S. Supreme Court! Erin Murphy Troy McKenzie and Barton Beebe like this.

Kevin Davis

Cristina Rodríguez Video from IILJ’s conference on indicators and global governance is now up.

on leave Margaret Satterthwaite and Ryan Goodman like this.

Joshua Blank (LL.M. ’07) Sarah Woo Spread the word: our Executive LL.M. in Taxation can now be earned entirely online! 1978-2011 Mitchell Kane likes this. Home Profile Find Friends Account

Albums by Richard Revesz

Upcoming Events

Sixth Annual Conference on Empirical Legal Studies November 4 & 5, 2011 RSVP: Yes • No • Maybe Co-founder Jennifer Arlen ’86 is attending Samuel Rascoff Daryl Levinson Smita Narula

1957 19

6 2 1967 1972 1977 1982 1987 1992 1997 NYU School of Law Reunion Friday & Saturday, April 27–28, 2012

Law and Accountability in Inaugural Lecture of the Introducing the Emilio Please visit law.nyu.edu/reunion2012 for more information NYU Law Reunion

2 002 2007 195

7 the Age of WikiLeaks David Boies Professorship Mignone Lecture on 1962 1967 1972 1977

Transitional Justice 1982 1987 1992 1997 April 27 & 28, 2012

2002 2007 • •

1957

1962 RSVP: Yes No Maybe

Sponsored

Samuel Scheffler Equality and Tradition

The Review of Metaphysics raves, “Scheffler’s writing Rachel Barkow Katherine Strandburg Kenji Yoshino has the merit of A Conversation on Urban Genes and Diagnostics: Academic Freedom v. Equality defending Rawls Crime with Cory Booker, Patenting and the Science more clearly and Mayor of Newark of Medicine more cogently than Rawls himself does.”

Catherine Sharkey and Richard Epstein Cases and Materials on Torts, 10th Edition

Twice as good as the ninth edition! Pre-order today! José Alvarez Ryan Bubb Samuel Issacharoff The Shape of Global Regulatory Reform and Is What’s Good for GM Governance the Future of the Good for America? U.S. Financial System

Katrina Wyman Breaking the Logjam (co-authored by David Schoenbrod and Richard Stewart) The New York Law Journal calls it “[a] welcome opportunity to grapple with some Daniel Hulsebosch Oren Bar-Gill Troy McKenzie ’00 of the central Scholarship Reception Legalizing Drugs: What Would Is It Safe Yet? Or Could environmental with donor John Golieb ’79 a Regulatory Framework Look Wall Street Still Blow Up issues confronting and Samuel I. Golieb Fellow Like? the Economy? our nation.” Nicholas Pedersen Chat Friend Lists Options Barton Beebe Barton Beebe This Facebook parody is a nice demonstration of the principle of fair use as established in Friends on Chat faculty focus the world to the house for dinner parties,” New Faculty he remembers. “My brother, Niteesh, and I always sat at the table and were part of these events. It’s no coincidence that we’re both academics.” (Niteesh teaches at Harvard Medical School.) Premed at McGill University, Choudhry became interested in law after a summer internship in bioethics. Attending Oxford as a Rhodes Scholar, he earned a Bachelor Sujit Choudhry Choudhry’s childhood friend, of Arts in Law in 1994. Two years later he as his interest in Asia and Af- earned a Bachelor of Laws from the Uni- professor of law rica complements the faculty’s versity of Toronto. After clerking for the Su- For a renowned comparative strength in European constitu- preme Court of Canada, he earned a Master constitutional law scholar who tional law. of Laws at Harvard Law School in 1998. has written or edited more Choudhry started writing in Choudhry joined the University of To- than 60 works, Sujit Choudhry the late 1990s, when the chang- ronto in 1999, receiving tenure in 2004. He spends a lot of time with his ing political landscape in East- received high marks for teaching. “It was boots on the ground. ern Europe and South Africa hard to come out of his class without being In 2003, he and a team of produced an enormous but po- a little more excited about constitutional foreign constitutional experts larized scholarship in compar- law because he had such passion for it,” traveled to Sri Lanka to pro- ative constitutional law. Some says former student Michael Pal (LL.M. ’10). pose a federalist solution to the scholars encouraged courts to Of a typical busy week, when he may be country’s ethnic conflict. They look to other nations for guid- teaching, writing, chairing faculty meet- drove past burned-out villages ance. Others discouraged com- ings, and attending to his policy work, and barbed-wire checkpoints parative engagement by courts, Choudhry says, “It can be a bit frenetic. guarded by machine gun–toting arguing that a nation’s constitu- And then there are the kids!” He and his soldiers. He made similar trips tion is the very embodiment of wife have a daughter and son, and, he says, to Nepal in 2007 and 2010 in its unique identity. Both camps “We look forward to raising our kids in a support of constitutional nego- missed the boat, according to global city.” — Jennifer Frey tiations. “He’s not an ivory-tower Choudhry, who staked out a intellectual,” says Michael Tre- third position in “Globaliza- Adam Cox bilcock, chair in law and economics at the tion in Search of Justification: Toward a University of Toronto Faculty of Law. “He’s Theory of Comparative Constitutional In- professor of law a public intellectual with a bewildering terpretation” (Indiana Law Journal, 1999). It was tough for Adam Cox to array of public policy involvements.” He argues that a nation can best grasp what choose between practicing Choudhry has appeared before the its constitution should be by using others law and teaching it. “I knew Supreme Court of Canada three times, in- as a tool for self-reflection: “Comparative I’d love to teach,” he cluding for the highly publicized case of materials help us define better what we recalls, “but I was Omar Khadr, the only Canadian citizen want to include, and what we want to avoid.” a little less confi- held at Guantánamo Bay. He was part of Since then, Choudhry has focused on dent that I’d love the three-member Governing Toronto Ad- forging constitutions in ethnically divided the process of legal visory Panel that drafted a proposal leading societies. He brought together legal schol- scholarship because to the restructuring of the city government. ars and political scientists in editing one of I’m a social person.” As a board member of Legal Aid Ontario, he the most important collections in the field, The gregarious Cox de- found himself in the middle of a nightmare Constitutional Design for Divided Societies: cided to teach, but sur- scenario when the organization’s defense Integration or Accommodation? (Oxford mounted the “lonely counsel went on strike, threatening to shut University Press, 2008). “He’s by far the best academic” issue by down Ontario’s criminal justice system. comparative constitutional scholar of his working collabora- Choudhry leaves the University of To- generation,” says Sanford Levinson of the tively with other ronto Faculty of Law, where he held the University of Texas School of Law. scholars to produce Scholl Chair, to join the NYU Law faculty Born in Delhi and raised in Toronto, a significant body of this fall. He’ll teach Comparative Constitu- Choudhry says his Indian immigrant par- multidisciplinary re- tional Law, both in the classroom and in the ents created a home for grooming scholars. search on two dinner- field, as he plans to create a center to deploy “Our house was all about intellectual stim- table topics of debate: students and colleagues to post-conflict ulation. The radio was permanently tuned voting rights and im- countries that are grappling with constitu- to CBC [Canada’s version of NPR], and we migration law. tional issues. He also plans to visit the Mid- read several newspapers daily,” he recalls. Cox will join dle East to identify projects emerging out His late father, Nanda, taught econom- the faculty of NYU of the Arab Spring. “He brings a unique di- ics at the University of Toronto; his mother, School of Law as mension to our program,” says Beller Fam- Ushi, taught nursing. “They had a proces- a tenured profes- ily Professor of Business Law Kevin Davis, sion of academic visitors from around sor this fall. He will

WWW.LAW.NYU.EDU 47 teach immigration law, as he did while a turing company, and Cox entered Princeton out is her boisterous laugh and genuine joy visiting professor in Fall 2008. He comes University on the techie track, graduating when we’re doing well for our clients,” says from the University of Chicago Law School, summa cum laude in 1996 with a degree Stephen Kang ’11. “She encourages us to where he began his academic career in 2002 in mechanical and aerospace engineering. always keep our clients front and center.” as a Bigelow Teaching Fellow and was most (Miles adds that Cox is still mechanically Coming from an immigrant back- recently professor of law. University of Chi- adept, having fixed his iPhone recently.) ground that often made her feel an “over- cago colleague Eric Posner, who has co-au- Cox won a full-tuition merit scholarship whelming otherness,” Das has a personal thored several articles with Cox, including to the University of Michigan Law School, connection to her specialization at the in- “The Rights of Migrants: An Optimal Con- eventually graduating first in his class. tersection of immigration and criminal law. tract Framework” (New York University After his clerkship in Los Angeles, Cox With the passage of the Illegal Immigration Law Review, 2009), adds: “Professor Cox moved to New York City, where he spent Reform and Immigrant Responsibility Act brings to bear a wide range of interdisci- a year as Karpatkin Civil Rights Fellow at of 1996, “all the rights that we assume apply plinary approaches, such as economics the American Civil Liberties Union Foun- to everyone—a day in court, a judge’s dis- and political science, which enable him to dation. Before beginning his academic ca- cretion—get tossed out the window once advance the literature in immigration law reer, he worked for a year as an associate the defendant is labeled an immigrant and significantly.” For example, by applying at Wilmer, Cutler & Pickering, where he a criminal,” she says. economic models, the authors concluded litigated civil rights and immigration cases. In “The Immigration Penalties of Crimi- that rather than being a problem due to He and his wife, Courtney Oliva, who nal Convictions: Resurrecting Categorical insufficient enforcement resources, illegal until recently was an associate at Winston Analysis in Immigration Law” (New York immigration is a policy choice that allows & Strawn in Chicago and will work at NYU University Law Review, forthcoming), Das the United States to obtain cheap labor Law’s Center on the Administration of notes that convictions once triggered a cat- while retaining the power to deport those Criminal Law, are eager to move to the West egorical immigration penalty based on the who burden the justice or welfare systems Village. Cox is looking forward to listening statutory definition of the offense. Today’s and grant amnesty to those who become to indie bands at the Bowery Ballroom and courts increasingly permit inquiry into the productive members of society. small Brooklyn clubs, and checking out the adverse facts of the crime. She argues for Cox has also made significant contri- foodie scene on the Lower East Side and in the traditional approach. butions to the literature of voting rights Brooklyn. — Denise Topolnicki In “Immigrants and Problem-Solving and election law. In “Judging the Voting Courts” (Criminal Justice Review, 2008), Rights Act” (Columbia Law Review, 2008), Das examined the unintended conse- he and co-author Thomas Miles, an econ- Alina Das ’05 quences that incarceration alternatives omist and law professor at the University assistant professor of have on immigrants. Typically, a defen- of Chicago Law School, provided the first clinical law dant pleads guilty up front to lessen or empirical evidence that race as well as As students in the Immigrant erase the offense if he successfully com- political ideology can influence judicial Rights Clinic, Alina Das and pletes a treatment program. But under decisions. Their analysis of how judges her friends would joke about federal immigration law, officials as- voted on lawsuits brought under the Vot- making those years last for- sert that the plea, coupled with a ing Rights Act of 1965 also revealed that ever, perhaps by forming a restraint on one’s liberty (albeit a the political affiliation and race of the law firm to fight for immi- volunteer program), is grounds for colleagues that judges sat with on panels grants’ rights. “Of course, deportation. affected their decisions. we all knew that we’d go Joanne Macri, director of the Cox and Miles had clerked for judges our separate ways, but Criminal Defense Immigration on opposite ends of the political spectrum we fantasized about Project at the New York State De- on the U.S. Court of Appeals for the Ninth what an ideal job it fenders Association (NYSDA), says Circuit. Cox worked for Judge Stephen would be,” she says. Das’s work helped bring about a pro- Reinhardt, who is so renowned as an activ- Returning to the IRC vision in the Rockefeller Drug Law ist that The Onion once satirically reported first as a teaching fellow in Reform to waive the up-front guilty that he had declared the private celebration 2008, then joining the faculty plea when it can result in severe con- of Christmas unconstitutional. Noting that in May 2011, she has come sequences such as deportation. Simi- their findings didn’t make them any friends close to realizing her dream. larly, another brief Das co-authored on either side of the political divide, Miles “To actually have this be my was cited in Jean-Louis v. Attorney praises Cox: “He is a fantastic person to professional home for the General of the United States, which collaborate with who has great academic foreseeable future is really ruled in favor of categorical analysis. and scholarly values and is interested in exciting,” says Das. “It’s amazing to see what she’s accom- a thorough and wide-ranging inquiry.” Petite, unassuming, and plished in such a short time,” says Posner, echoing Miles, describes Cox as “by reserved, Das is nonetheless “a Macri. “I can’t wait to see what she’s nature dispassionate rather than ideologi- tenacious advocate, focused and going to do next.” cally inclined, which allows him to under- completely attuned to what really Das and her brother, Shamik, grew stand and evaluate all points of view.” matters to immigration judges,” up in Baton Rouge, Louisiana, with Growing up in suburban Detroit, Cox says her mentor and fellow IRC in- dad, Dilip, and mom, Mala, who en- was more interested in science than public structor, Professor of Clinical Law couraged Das to focus on her educa- policy. His father, an engineer, and mother, Nancy Morawetz ’81. Her stu- tion. “I was a nerdy, focused student a child psychologist, own a small manufac- dents concur. “What stands who joined the math club, went to

48 NYU SCHOOL OF LAW faculty focus science fairs, and threw myself into learn- De Búrca’s academic interests stem ing,” she recalls. from a fascination with the E.U. itself. “De- As an undergraduate at Harvard Uni- spite its current troubles, the E.U. remains versity, she spent one summer at an NGO one of the most successful examples of rein Bangladesh working on women’s issues, gional economic and political cooperation,” and another in Mozambique studying de- she says. Her work analyzes the kind of in- mocratization. After graduating magna ternational actor the E.U. is becoming and cum laude in 2001 with an A.B. in gov- whether lessons learned (both positive and ernment, she entered NYU Law on a Root- negative) can be applied in other arenas of Tilden-Kern Public Interest Scholarship global governance. and continued to explore a variety of inter- In “The European Court of Justice ests, taking internships in mental health, and the International Legal Order After racial discrimination, housing, community Kadi” (Harvard International Law Journal, health, and employment discrimination. 2010), she criticized the popular European She graduated with a J.D. and a master’s of Court of Justice decision that blocked the public administration. implementation of U.N. Security Council After clerking for the Honorable Kermit measures, freezing the assets of a Saudi Lipez of the U.S. Court of Appeals for the businessman with alleged terrorist con- First Circuit, she was a Soros Justice Fel- nections. De Búrca argues that the de- low and staff attorney for the NYSDA Im- cision, along with recent ECJ case migrant Defense Project. law, reveals an increasingly Das spends her spare time with her fi- reserved and even skeptical ancé, Nafees Tejani, and a close group of approach to international law. friends. Given her intense focus, it’s un- In “The Road Not Taken: The E.U. as a derstandable that she might need time to Global Human Rights Actor” (American learn how to adjust her tempo and relax Journal of International Law, 2011), de sometimes. “I’ve worked hard to carve out Búrca challenges the notion that the Eu- The children attended Gaelic-speaking a space where I can get outside of my head,” ropean Community in the 1950s was un- public schools and spent summers with she says, “and just enjoy being in this really concerned with human rights protection. their dad’s family in a fishing village in the great place.”— J.F. Delving into the archives, she finds that west of Ireland. long-forgotten plans for the E.C.’s engage- At her mother’s urging, de Búrca stud- ment with human rights were in many re- ied law at University College Dublin, grad- Gráinne de Búrca spects more ambitious than the current uating in 1986. The following year, she got professor of law E.U. human rights system. De Búrca “has an LL.M. from the University of Michigan, One of the foremost scholars on E.U. law mastered not only the intricacies but all then returned to Dublin to become a Bar- and its relationship to national legal sys- the subtleties of European Union law,” says rister-at-Law. In 1989 she got a one-year tems and the international legal order, George Bermann, director of European Le- teaching position at Oxford, giving her an Gráinne de Búrca has written or edited gal Studies at Columbia Law School. “She is edge, she said, when a tenured post came nine books and 50-plus articles and book a meticulous and insightful scholar.” her way. “It’s so often a matter of serendip- chapters, and she edits the Oxford Studies One subject de Búrca doesn’t study, ity where people get their appointments,” in European Law book series. Her influen- however, is status. Colleagues say she she says modestly. tial E.U. Law: Text, Cases, and Materials judges her peers’ work solely on merit, In 1998, she left Oxford to join the Eu- (fifth ed., 2011) has been in print since 1995. assesses that work generously even if its ropean University Institute—a graduate Throw the unusual name into the mix, how- views contradict hers, and appears to research institute set up by the founding ever, and people “often expect to meet this be immune from strategizing. “She goes members of the E.C.—“a dream for anyone wise old man, the Great Gráinne de Búrca,” where she wants to go,” says Oxford’s Ste- interested in European law,” she says, and says her friend Neil Walker from the Uni- phen Weatherill. “There’s never any sense became the co-director of the Academy of versity of Edinburgh. “Instead, they meet of having an agenda.” European Law. There she met her husband, this chirpy young woman.” One might say de Búrca follows the John Norton Pomeroy Professor of Law NYU Law colleagues will have no such Golden Rule. Having been, at age 23, one Philip Alston, who was then a professor at confusion, having already worked with de of the youngest fellows appointed to Oxford the EUI, then moved to the U.S., where she Búrca when she was a Hauser Global Visit- University, and a decade later the youngest taught at Fordham Law School from 2006 to ing Professor in 2005 and Straus Inaugural professor—and one of the first female law 2010 before joining the Harvard Law faculty. Fellow in 2009–10. “Copies of her books sit professors—at the prestigious European Their two young children in tow, de open on desks from Moscow to Madrid,” University Institute in Florence, de Búrca is Búrca and Alston visit Ireland often. “We says Murry and Ida Becker Professor of all the more impressive for emerging from have a running joke that my family doesn’t Law Benedict Kingsbury. “Her insights humble beginnings. understand what academics do,” she says into every case, directive, proposal, and De Búrca and her three siblings were with a laugh. “My mother, to this day, parliamentary position paper in the large raised in a strict household in suburban thinks that once I’m done with my teach- and complex European legal system are Dublin with an emphasis on education ing, I’m on holiday. I have to justify my exis- acute and creative. She is a scholar who re- and discipline. Both her late father, Seán, tence.” To her mother, maybe, but certainly ally knows her field and helps to shape it.” and her mother, Bernadette, taught Gaelic. not to the legal academy. — J.F.

WWW.LAW.NYU.EDU 49 faculty focus Douglas H. Ginsburg David Lehn ’04. On the bench, he asks pen- article “White House Review of Agency etrating questions but is always courteous. Rulemaking,” which “explained to the professor of law He keeps his opinions short—with very few world at large how one should assess a reg- When Judge Douglas H. Ginsburg of the footnotes—and painstakingly redrafts each ulatory program,” says Cooney. U.S. Court of Appeals for the District of Co- one 10 to 20 times. As chief judge from 2001 In 1975, after clerking for Supreme lumbia Circuit isn’t wearing his black robe, to 2008, he strove to unify the court and to Court Justice Thurgood Marshall, Gins- he prefers red—a scarlet jacket, to be pre- reduce the number of dissenting opinions. burg got his first teaching job at Harvard cise. Among Ginsburg’s many extrajudicial Ginsburg’s esteemed judicial career be- Law School. He and his childhood friend interests, none is more arresting than his gan with great tumult and disappointment. Hal Scott taught one of the first courses in passion for foxhunting. In 1987, President Ronald Reagan nominated the country on the regulation of financial “It’s thrilling, a melding of horse and the yearling judge to the Supreme Court. institutions. “There was no course, no body rider into one joint effort that can be fatal The 41-year-old soon withdrew over admis- of writing,” says Scott, who remains at Har- if separated,” says Ginsburg, who started sions that he had smoked marijuana. Gins- vard. So the two did original research by riding when he moved to rural Virginia burg took the letdown in stride, says Rule: calling regulators to analyze specific prob- in 1993 and “earned his colors” a few years “He remained as outgoing and amiable as lems, once even calling bank regulators in later. “For four hours at a time, one clears ever. And he moved on to become one of the Honolulu when offices in all other time the mind and focuses only on not getting leading lights on the D.C. Circuit.” zones had closed. killed.” That respite is significant for a -ju What led to the nomination was Gins- Now Ginsburg can return to the class- rist often described as “meticulous and burg’s impressive career in government. In room, where this spring he will teach one thorough,” with an “academic and intellec- 1984 he became the administrator for the of NYU Law’s signature foundation courses, tual rigor.” Ginsburg has for 25 years heard OMB Office of Information and Regula- the Administrative and Regulatory State. more than 100 cases annually as one of the tory Affairs in the Reagan White House. At Possessing firsthand knowledge of regula- top appellate judges in the nation. This Sep- the center of the president’s deregulation tion, Ginsburg will nonetheless exhaustively tember he announced he will be taking se- effort, Ginsburg was charged with approv- prepare for each class, says Scott. Students, nior status from the D.C. Circuit in January ing all federal agency regulation and policy says Rule, should follow suit and come thor- 2012, which will allow him more time for proposals—an inherently combative task. oughly primed and ready to be engaged. his pastimes and to increase his teaching The stress was such that “the morning staff Ginsburg is fond of pointing out that load from part-time at various law schools meetings looked like the locker room of a he was born on May 25, 1946, nine months to full-time on the faculty of NYU Law. rugby team after a game,” relates John after V-J Day, making him one of the Known among corporate attorneys as a Cooney, a Venable partner who was earliest baby boomers. His mother, “giant in antitrust law,” Ginsburg has heard then an OMB deputy general coun- Katherine, stayed at home to raise appeals in several of the landmark antitrust sel. “But Doug wore it well and was Ginsburg and his two siblings in Chi- cases of our times, including U.S. v. Micro- a calming factor within the institu- cago. His father, Maurice, was self- soft, a series of suits alleging that the com- tion.” In fact, none of Ginsburg’s educated and owner of a small pany had excluded competition in bundling decisions was ever appealed financial advisory business. its Internet Explorer web browser with its to the president. He entered Cornell Uni- Microsoft Windows operating system, and A year later, Ginsburg versity in January 1964 but therefore should be broken into two units. served as assistant attor- took leave a year later and Ginsburg’s court reduced the number of ney general in the Justice started Operation Match— violations found by a lower court and re- Department’s Antitrust Di- the world’s first computer manded the case for a reassessment of the vision; one of his lasting dating company. His en- remedy. Those decisions “set the template executive decisions was to during interest in com- for evaluating monopolization practices elevate the position of the puters and technology today,” says Rick Rule, head of Cadwalader, chief economist. has, former colleagues Wickersham & Taft’s antitrust group, who Ginsburg, a University say, influenced his well-in- had been Ginsburg’s deputy and succeeded of Chicago Law School formed antitrust decisions him as assistant attorney general for anti- graduate, was among such as Microsoft. trust at the Department of Justice. the first students to study In 2007, Ginsburg mar- A self-described originalist, Ginsburg law and economics with ried government affairs consul- coined the term “Constitution in exile” to the now legendary Judge tant Deecy Gray. He has three refer to decisions when the canon has not Richard Posner. He has daughters from earlier mar- been interpreted as originally intended. applied the cost-benefit riages. His wry wit and engag- “No one would put on a Shakespeare play analysis and other “Chicago ing manner make him a coveted without trying to understand what the School” economic princi- dinner party guest. For now, he words meant 400 years ago,” he explains. ples he learned then to help will commute from the D.C.- Although he is regarded as a conservative, shape modern antitrust law, area, where his varied interests his clerks and other lawyers say he is not an and regulatory law and policy, and pursuits allow him to be, as ideologue. “When deciding a case, he makes ever since. He has published Rule put it, “a foxhunting Vir- an honest assessment of the facts in front of more than 50 influential ginia gentleman in the old sense him and the governing law. He doesn’t bend scholarly works, including and a thoroughly modern man the case to become a piece of advocacy for co-authoring the seminal at the forefront of technology a conservative agenda,” says former clerk 1986 Harvard Law Review and the law.” — J.F.

50 NYU SCHOOL OF LAW faculty focus sally katzen Visiting Faculty Senior Advisor, Podesta Group When: 2011–12 Courses: How Washington Really Works Seminar; Administrative and Regulatory State Representative publications: Co-author, stephen ansolabehere jeanne fromer “Office of Management and Budget: Ensur- Professor of Associate Professor ing Fiscal Responsibility and Government Government, of Law, Fordham Accountability,” Change for America: A Harvard University University School Progressive Blueprint for the 44th President When: Fall 2011 of Law (2009); co-author, “Letting Government Courses: Campaign When: Spring Agencies Do What They Were Created Finance; Redistrict- 2012–Fall 2012 To Do,” American Constitution Society ing: Law, Politics & Course: Issue Brief (2008); “A Reality Check on an Science Seminar Copyright Law Empirical Study: Comments on ‘Inside Research: Elections, democracy, and Research: Intellectual property, with the Administrative State,’” Michigan the mass media emphasis on unified theories of patent Law Review (2007) Representative publications: Co-author, and copyright law Education: J.D., University of Michigan “Profiling Originalism,” Columbia Law Representative publications: “Expres- Law School Review (2010); co-author, “Race, Region, sive Incentives in Intellectual Property,” Clerkship: Judge J. Skelly Wright of the and Vote Choice in the 2008 Election: Virginia Law Review (forthcoming, 2012); U.S. Court of Appeals for the District of Implications for the Future of the Voting “Patentography,” NYU Law Review (2010); Columbia Circuit Rights Act,” Harvard Law Review (2010); “A Psychology of Intellectual Property,” Related experience: Deputy Director for The End of Inequality: One Person, One Northwestern University Law Review (2010) Management, Office of Management and Vote and the Transformation of American Education: J.D., Harvard Law School; Budget (1999–2001); Deputy Director of the Politics (2008) S.M. in electrical engineering and National Economic Council (1998–1999); Education: Ph.D. in political science, computer science, Massachusetts Administrator, Office of Information and Harvard University Institute of Technology Regulatory Affairs, Office of Management Clerkships: Justice David H. Souter and Budget (1993–1998); Agency Review daniel ernst of the U.S. Supreme Court; Judge Working Group, Obama-Biden Transition; Professor of Law, Robert D. Sack of the U.S. Court of Partner, Wilmer, Cutler & Pickering Georgetown Univer- Appeals for the Second Circuit sity Law Center yair listokin When: 2011–12 daniel ho Associate Professor of Courses: Property; Professor of Law, Law, Yale Law School American Legal Stanford Law School When: Spring 2012 History: Law and When: Fall 2011 Course: Income the State in Twen- Course: Admin- Taxation tieth-Century America; History of the istrative and Research: Tax American Legal Profession Seminar Regulatory State law; corporate law; Research: U.S. legal history; property Research: contract law; Representative publications: Quantitative bankruptcy law; law and economics; “Ernst Freund, Felix Frankfurter and the empirical legal studies; administrative empirical legal studies American Rechtsstaat: A Transatlantic law; antidiscrimination law Representative publications: “Taxation Shipwreck, 1894–1932,” Studies in Ameri- Representative publications: Co-author, and Liquidity,” Yale Law Journal (forth- can Political Development (2009); “The “Did a Switch in Time Save Nine?” Journal coming, 2011); “The Income Tax Code Politics of Administrative Law: New York’s of Legal Analysis (2010); co-author, “Did Negating Fiscal Policy: Why Tax Scholars Anti-Bureaucracy Clause and the Wagner- Liberal Justices Invent the Standing Doc- Can No Longer Overlook Macroeconom- O’Brian Campaign of 1938,” Law and trine? An Empirical Study of the Evolu- ics,” Yale Law Journal on Regulation (forth- History Review (2009); “Morgan and tion of Standing, 1921–2006,” Stanford Law coming, 2011); “Bayesian Contractual the New Dealers,” Journal of Policy Review (2010); co-author, “Viewpoint Di- Interpretation,” Journal of Legal Studies History (2008) versity and Media Consolidation: An Em- (2010); “Management Always Wins the Education: Ph.D. in history, Princeton pirical Study,” Stanford Law Review (2009) Close Ones,” American Law and Econom- University; LL.M. in legal history, Education: J.D., Yale Law School; Ph.D. ics Review (2008) University of Wisconsin Law School; in government, Harvard University Education: J.D., Yale Law School; Ph.D. and J.D., University of Chicago Law School Clerkship: Judge Stephen F. Williams of M.A. in economics, Princeton University the U.S. Court of Appeals for the District Clerkship: Judge Richard Posner of the U.S. of Columbia Circuit Court of Appeals for the Seventh Circuit

WWW.LAW.NYU.EDU 51 faculty focus edward rock University of Chicago Law Review (2010); robert rabin Saul A. Fox Distin- “Why is There No Partisan Competition A. Calder Mackay Professor of Law, guished Professor in City Council Elections?: The Role of Stanford Law School of Business Law, Election Law,” Journal of Law and When: Spring 2012 University of Penn- Politics (2007) Courses: Torts; Toxic sylvania Law School; Education: J.D., Harvard Law School; M.Sc. Harms Seminar Professor of Business in economics, London School of Economics Research: Tort law; and Public Policy, Clerkship: Judge Carlos Lucero of the health and safety Wharton School, U.S. Court of Appeals for the 10th Circuit regulation University of Pennsylvania Representative When: Fall 2011 publications: Co-author, Tort Law and Courses: Corporate Law Theory Multi-Year Visitors Alternatives: Cases and Materials (2011); Seminar; Mergers & Acquisitions alan auerbach “Tobacco Control Strategies: Past Effi- Research: Corporate law Robert D. Burch cacy and Future Promise,” Loyola of Los Representative publications: Co-author, Professor of Econom- Angeles Law Review (2008); co-author, “When the Government Is the Controlling ics and Law; Director, “The Renaissance of Accident Law Plans Shareholder,” Texas Law Review (forth- Burch Center for Tax Revisited,” Maryland Law Review (2005); coming, 2011); co-author, “The Hanging Policy and Public Fi- co-editor, Torts Stories (2003) Chads of Corporate Voting,” Georgetown nance, University of Education: J.D. and Ph.D. in political Law Journal (2008); co-author, “Corporate California, Berkeley science, Northwestern University Taxation and International Charter Com- When: Spring 2012 Related experience: Senior Environ- petition,” Michigan Law Review (2008) Course: Tax Policy & Public Finance mental Fellow, U.S. Environmental Education: J.D., University of Pennsylvania Colloquium and Seminar Protection Agency Research: Behavioral effects of taxation; pamela samuelson tax reform; demographic change and daniel rubinfeld Richard M. Sherman fiscal policy; budget rules Robert L. Bridges Distinguished Representative publications: Co-author, Professor of Law and Professor of Law & “Measuring the Output Responses to Professor of Econom- Information, Uni- Fiscal Policy,” American Economic Journal: ics Emeritus, Uni- versity of California, Economic Policy (forthcoming, 2012); versity of California, Berkeley co-author, “Welfare and Generational Berkeley When: Fall 2011 Equity in Sustainable Unfunded Pension When: Fall 2011 Courses: Copyright Systems,” Journal of Public Economics Courses: Antitrust Law; Copyright Reform Seminar (2011); co-author, “Activist Fiscal Policy,” Law and Economics Seminar; Quantita- Research: Digital copyright law; intellec- Journal of Economic Perspectives (2010) tive Methods in Law I & II tual property; cyberlaw; information policy Education: Ph.D. in economics, Research: Antitrust; economics of Representative publications: “The Uneasy Harvard University litigation; federalism Case for Software Copyrights Revisited,” Related experience: Deputy Chief of Staff, Representative publications: “Economet- George Washington University Law Review U.S. Joint Committee on Taxation ric Issues in Antitrust Analysis,” Journal (forthcoming, 2011); “The Google Book of Institutional and Theoretical Economics Settlement as Copyright Reform,” Wiscon- charles cameron (2010); co-author, Microeconomics (2009); sin Law Review (forthcoming, 2011); “Leg- Professor of Politics co-author, “Empirical Study of the Civil islative Alternatives to the Google Book and Public Affairs, Justice System,” Handbook of Law and Settlement,” Columbia Journal of Law Princeton University Economics (Volume 1, 2007); co-author, and Arts (forthcoming, 2011) When: Spring 2012 Econometric Models and Forecasts (2002) Education: J.D., Yale University Course: Political Education: Ph.D. in economics, Massa- Environment of the chusetts Institute of Technology david schleicher Law Seminar Related experience: Deputy Assistant Assistant Professor Research: Political Attorney General, Antitrust Division, of Law, George institutions and policy making U.S. Department of Justice Mason University Representative publications: Co-author, School of Law “Strategic Defiance and Compliance in In Residence When: Fall 2011 the U.S. Court of Appeals,” American david shapiro Course: Local Journal of Political Science (2010); “Chang- William Nelson Government Law ing Supreme Court Policy Through Ap- Cromwell Professor Research: Election pointments: The Impact of a New Justice,” of Law Emeritus, law; local government law Minnesota Law Review (2009); co-author, Harvard Law School Representative publications: “The City as “Bargaining and Opinion Assignment on When: Spring 2012 a Law and Economic Subject,” University the U.S. Supreme Court,” Journal of Law, Research: Civil of Illinois Law Review (2010); “The Steep Economics & Organization (2007) procedure; federal Costs of Using Non-Cumulative Zoning to Education: Ph.D. in public affairs, system; legal Preserve Land for Urban Manufacturing,” Princeton University profession; statutory interpretation 52 NYU SCHOOL OF LAW faculty focus Representative publications: “The Story of Justice Breyer’s Ac- Lincoln Mills: Jurisdiction and the Source arthur gonzalez (ll.m. ’90) tive Liberty,” NYU of Law,” Federal Court Stories (2009); “The Senior Fellow, NYU School of Law Law Review (2006) Role of Precedent in Constitutional Adju- Education: J.D., NYU Chief Judge, U.S. Bankruptcy Court dication: An Introspection,” Texas Law Re- School of Law for the South- Clerkships: view (2008); Federalism: A Dialogue (1995) ern District Judge Education: LL.B., Harvard Law School of New York Leonard B. Sand Clerkship: Justice John M. Harlan of the When: Spring of the U.S. District U.S. Supreme Court 2012 Court for the Southern District of New Courses: York; Judge Robert A. Katzmann of the U.S. e. thomas sullivan A Study of Court of Appeals for the Second Circuit Senior Vice President for Academic Affairs Cross-Border and Provost, Univer- Insolvency Cases and Relevant Law; sity of Minnesota; Introduction to Corporate Reorgani- Koch-Searle Fellow Former Dean, Uni- zation Under the Bankruptcy Code karen bradshaw versity of Minnesota Education: LL.M. in taxation, Research: Law Law School NYU School of Law; J.D., and economics; When: Spring 2012 Fordham University Law School environmental law Course: Antitrust Related experience: Assistant Representative Law: Complex United States Trustee for the publications: Co- Litigation Strategies Seminar Southern District of New York; author, Wildfire: Research: Antitrust law and complex United States Trustee for New York, Law & Economics litigation Connecticut, and Vermont; Attor- Policy Perspectives Representative publications: ney, Office of Chief Counsel of the (forthcoming, 2011); “Backfired! Distorted Co-author, Complex Litigation (2010); Internal Revenue Service Incentives in Wildfire Suppression,” co-author, Understanding Antitrust and Note: In April 2011, Gonzalez an- Utah Environmental Law Review (2011); its Economic Implications (fifth edition, nounced he would retire from the “A Modern Overview of Wildfire Law,” 2009); Antitrust Law, Policy, and Proce- bench in February 2012, and imme- Fordham Environmental Law Review dure (sixth edition, 2009) diately join the NYU School of Law. (2010); co-author, “Linking Physical and Education: J.D., Indiana University Online Communities in Academic Set- School of Law tings,” The Offensive Internet (2009) Furman Fellows Education: J.D., University of Chicago; emily ann berman ’05 (ll.m. ’11) M.B.A., California State University, Chico Senior Fellows Research: National Clerkship: Judge E. Grady Jolly of the U.S. neil barofksy ’95 security and Court of Appeals for the Fifth Circuit When: Fall 2011 counterterrorism; Course: Govern- separation of powers ment Responses Representative pub- Hauser Global to the Financial lications: “Domestic Visiting Faculty Crisis Seminar Intelligence Collec- Education: J.D., tion: New Powers, brian j. arnold NYU School of Law New Risks,” Brennan Center Publication Senior Adviser, Cana- Related experience: (2011); co-author: “Too Big a Canon in dian Tax Foundation Special Inspector General for the Trou- the President’s Arsenal: Another When: Spring 2012 bled Asset Relief Program, U.S. Treasury Look at United States v. Nixon,” George Courses: Interna- Department; Assistant U.S. Attorney, Mason Law Review (2010); “Executive tional Tax Policy; Tax U.S. Attorney’s Office for the Southern Privilege Disputes Between Congress and Treaties: The OECD District of New York the President: A Legislative Proposal,” Model Convention Albany Government Law Review (2010) Research: Interna- robert bauer Education: LL.M. and J.D., tional tax; tax treaties When: Fall 2011 NYU School of Law Representative publications: Reform- Course: Law and the Clerkship: Judge John M. Walker Jr. ing Canada’s International Tax System: Electoral Process of the U.S. Court of Appeals for the Toward Coherence and Simplicity (2009); Education: J.D., Uni- Second Circuit co-author, Comparative Income Taxation: versity of Virginia A Structural Analysis (third edition, 2010) School of Law d. theodore rave ’06 Education: J.D., Harvard Law School Related experience: Research: Election law; law of democracy; White House coun- civil procedure; aggregate litigation sel; general counsel, Democratic National Representative publications: “Question- Committee; general counsel, Barack ing the Efficiency of Summary Judgment,” Obama’s election campaign; partner, NYU Law Review (2006); co-author, “Con- Perkins Coie versation, Allocation, and Representation:

WWW.LAW.NYU.EDU 53 faculty focus eyal benvenisti Courses: Use of Force 1980 Vienna Sales Convention (2004) Anny and Paul in International Law; Education: J.D., University of Bologna, Yanowicz Professor International Crimi- Italy; LL.M., Pallas Consortium, Univer- of Human Rights, nal Law sity of Nijmegen, the Netherlands Tel Aviv University Research: Public When: Fall 2011 international law neil walker Courses: Law and with a focus on Regius Professor of Public Law and the Global Governance; responsibility of non- Law of Nature and Nations, University of International Law and the Resolution of state groups in conflict zones, protection Edinburgh, Scotland Israeli-Palestinian Conflict of the environment and natural resources When: 2011-12 Research: Constitutional law; international in armed conflict, and the relationship Courses: Jurispru- law; human rights; administrative law between state and individual criminal dence and Global Representative publications: The Interna- responsibility Law; Crimes that tional Law of Occupation (second edition, Representative publications: “State and Shape States: forthcoming, 2012); “Reclaiming Democ- Individual Criminal Responsibility in History and Global racy: The Strategic Uses of Foreign and Conflict Zones: Contours of an Emerging Prospects Seminar International Law,” American Journal Relationship,” Finnish Yearbook of Interna- Research: European and transnational of International Law (2008); co-author, tional Law (2009); “Congo’s War: The Legal constitutional theory; law and security “The Empire’s New Clothes: Political Econ- Dimension of a Protracted Conflict,” Brit- Representative publications: Co-author, omy and the Fragmentation of Interna- ish Yearbook of International Law (2006); Relocating the Rule of Law (2009); co-au- tional Law,” Stanford Law Review (2007) State Responsibility for Transboundary Air thor, Civilizing Security (2007); co-author, Education: LL.B., Hebrew University of Je- Pollution in International Law (2001) The Paradox of Constitutionalism (2007) rusalem; LL.M. and J.S.D., Yale Law School Education: LL.B., University of Nairobi; Education: LL.B. and Ph.D., University of Clerkship: Justice M. Ben-Porat of the BCL and D.Phil., University of Oxford Strathclyde, Scotland; LL.D., University Supreme Court of Israel of Uppsala, Sweden catherine o’regan daniel joseph fitzpatrick Ad hoc Judge of patrick weil Reader, Australian National University the Namibian Senior Research Fellow, French College of Law Supreme Court National Center for When: Fall 2011 When: Spring 2012 Scientific Research; Courses: Humanitar- Course: Courts, Professor, Paris ian Assistance after Rights and Democ- School of Economics Armed Conflicts and racy: The South When: Fall 2011 Natural Disasters; African Experience Courses: Compara- Land and the Envi- Education: LL.M., University of Sydney; tive Immigration, ronment in Asian Ph.D., London School of Economics Citizenship and Economic Development Related experience: President, Interna- Antidiscrimination Laws and Policies; Research: Law and development in tional Monetary Fund Administrative Comparative Church State Relations: Asia; land tenure in developing countries; Tribunal; Judge, Constitutional Court of Old Regimes land policy after armed conflicts and South Africa (1994–2009); Chairperson, Research: Comparative immigration; natural disasters United Nations Internal Justice Council citizenship, church states law and policy Representative publications: Co-author, Representative publications: “From Condi- “The Relative Resilience of Property: First marco torsello tional to Secured and Sovereign: The New Possession and Order Without Law in Professor of Law, University of Bologna and Strategic Link Between the Citizen and East Timor,” Law & Society Review (2010); University of Verona the Nation-State in a Globalized World,” Land and Natural Disasters: Guidance When: Fall 2011 I•CON (2011); “The Anti-racist Origins of for Practitioners (2010); “Evolution and Courses: Compara- the American Immigration Quota System,” Chaos in Property Systems: The Third tive Private Law; Social Research (2010); “Why the French La- World Tragedy of Contested Access,” International ïcité is Liberal,” Cardozo Law Review (2009) Yale Law Journal (2006) Commercial Agree- Education: Ph.D. in political science and Education: Ph.D., Australian National ments in Practice M.B.A. ESSEC, Sciences Po, Paris University; LL.M., University of Sydney Research: Compara- suli zhu Clerkships: Justice Lindsay G. Foster tive law; international contracts; con- Professor of Law, of the Federal Court of Australia flict of laws; transnational litigation and Peking University Related experience: United Nations land arbitration Law School rights adviser in post-conflict East Timor Representative publications: Co-author, Il When: Spring 2012 and post-tsunami Aceh, Sumatra contratto internazionale. Diritto comparato Course: Law and e prassi internazionale (2010); “Preliminary Culture: An Asian phoebe okowa Agreements and CISG Contracts,” Drafting Perspective Reader in Public International Law, Contracts under the CISG (2008); Common Research: Law Queen Mary, University of London Features of Uniform Commercial Law Con- and social sciences; law and social When: Fall 2011 ventions: A Comparative Study Beyond the transformation 54 NYU SCHOOL OF LAW faculty focus Representative publications: andrea büchler janez kranjc Songfa Xiaxiang (Sending Law to the Professor of Private Law and Professor of Roman Countryside) (2010); “An Economic Comparative Law, Law, University of Analysis of Hai Rui’s Judicial Theorems,” University of Zurich Ljubljana Peking University Journal of Legal Studies Research: Religious, Research: The rel- (2008); “Political Parties in China’s Judi- cultural and legal evance of traditional ciary,” Duke Journal of Comparative norms and the public values and principles & International Law (2006) and private struggles for the develop- Education: LL.B., Peking University; over the body ment of law and the LL.M., McGeorge School of Law; Representative perception of justice and legality in the Ph.D., Arizona State University publications: Islamic Law in Europe? modern society Legal Pluralism and its Limits Representative publications: Rimsko in European Family Laws (forthcoming, pravo (Roman Law) (second edition, 2010); Straus Fellows 2011); co-author, “Children and Divorce: “La législation provinciale et la traduc- adam becker Investigating Current Legal Practices tion des lois centrales en slovène : le cas Associate Professor of Classics and Reli- and their Impact on Family Transitions,” de la province de Carniole,” La province: gious Studies, New York University Handbook of Transdisciplinary Research, circonscrire et administrer le territoire de Research: Exam- Heidelberg (2007); “The Transplantation la République romaine à nos jours (2010); ining the West- of Human Fetal Brain Tissue: The Swiss “Die actio praescriptis verbis als Formel- ern missionary Federal Law,” Regulating Technologies: aufbauproblem,” Zeitschrift der Savigny- background to the Legal Futures, Regulatory Frames and Stiftung für Rechtsgeschichte (1989) development of na- Technological Fixes (2008) Education: LL.M., University of Ljubljana tionalism among the Education: Ph.D. in private law, compara- Related experience: President, Judicial indigenous Christian tive law, and gender law, University of Council of the Republic of Slovenia population of Meso- Basel, Switzerland potamia in the 19th and early 20th century josé tolentino mendonça Representative publications: “Political wael farouq Professor of the Theology and Religious Diversity in the Visiting Professor of Law, Macerata New Testament, Sasanian Empire,” Between Contact and University, Egypt; Instructor, Arabic Catholic University, Contrast: Jews and Christians in Sasanian Language Institute Portugal Mesopotamia (forthcoming, 2011); “The at the American Research: The Comparative Study of ‘Scholasticism’ University in Cairo, hermeneutics of the in Late Antique Mesopotamia: Rabbis Egypt writings of Saint Paul and East Syrians,” Association for Jewish Research: Analyzing Representative Studies Review (2010); Fear of God and the the factors that have publications: O Tesouro Escondido (The Beginning of Wisdom: The School of Nisibis shaped Arab minds Hidden Treasure) (2011); O Hipopótamo de and the Development of Scholastic Culture and constituted the Deus e Outros Textos (God’s Hippopotamus in Late Antique Mesopotamia (2006) seeds of contemporary Islam’s contradic- and Other Texts) (2010); A Leitura Infinita. Education: Ph.D. in religion, tions and problematic issues Bíblia e Interpretação (Infinite Reading: Princeton University Representative publications: Difference The Bible and Interpretation) (2008) and Dialogue (in Arabic, 2010); The Lin- Education: Ph.D. in Biblical theology, seyla benhabib guistic and Historical Roots of the Islamic Catholic University, Portugal Eugene Meyer Professor of Political Law (in Arabic, 2009); “Alle Radici Della Science and Philosophy, Yale University Ragione Araba” (“Roots of the Arabic michel troper Research: The status Reason”), Dio Salvi la Ragione (2007) Professor Emeritus of Public Law, of international law Education: Ph.D., Institute of Arabic University of Paris X and of transnational Studies—Arab League Research: Legal legal agreements and philosophy; consti- David M. Friedman Fellow treaties with respect philip hamburger tutional law; con- to the sovereignty stitutional theory; claims of liberal Maurice and constitutional democracies Hilda Friedman history Representative publications: Dignity in Professor of Law, Representative Adversity: Human Rights in Troubled Times Columbia Law publications: Co-author, Droit constitu- (forthcoming, 2011); co-editor, Mobility and School tionnel (31st edition, 2009); La separation Research: Immobility: Gender, Borders & Citizenship des pouvoirs (second edition, 2009); (2009); co-author, Another Cosmopolitan- Religious liberty La philosophie du droit (2003) Representative ism: Hospitality, Sovereignty, and Demo- Education: Ph.D. in French constitutional publications: cratic Iterations (2006); The Rights of Others: “Beyond Protection,” history, University of Paris Aliens, Citizens and Residents (2004) Columbia Law Review (2009); Law and Education: Ph.D. in philosophy, Judicial Duty (2008); “Getting Permission,” Yale University Northwestern Law Review (2007) Education: J.D., Yale Law School WWW.LAW.NYU.EDU 55 faculty focus of Power in Jewish Mysticism from Rabbinic Shenaton Ha-Mishpat Ha-Ivri (2010–11); Tikvah Fellows Literature to Safedian Kabbalah (2004) Midrash Shmuel, A Scientific Edition and yehoyada amir Education: Ph.D. in Jewish thought, Commentary (2009); “Minhag” (“Usage”), Rabbi and Hebrew University, Israel Shenaton Ha-Mishpat Ha-Ivri (2006); Associate Professor “Aggadah,” Shenaton Ha-Mishpat of Jewish Thought, Berkowitz Fellow Ha-Ivri (2004); Law and Action (2001); Hebrew Union marc hirshman Promise (1998) College, Jerusalem Mandel Chair for Education: LL.B., M.A., and J.D., Research: Analyzing Jewish Education, Hebrew University, Israel and evaluating the Melton Centre, He- Clerkship: Judge I. Kister of the writings of A.D. Gor- brew University of Supreme Court of Israel don, H.N. Bialik, Shmuel Hugo Bergmann, Jerusalem; Director, Martin Buber, Lea Goldberg, and Eliezer Institute for Research benjamin sommer Schweid from the perspective of Jewish on the Land of Israel, Professor of Bible religious renewal Yad Itzhak Ben Zvi and Ancient Semitic Representative publications: A Small Research: Completing a critical edition Languages, Jewish Still Voice (Hebrew, 2009); Reason Out of of Ecclesiastes Rabbah chapters 1–6 Theological Semi- Faith: The Philosophy of Franz Rosenweig with commentary and introduction nary of America (Hebrew, 2004) Representative publications: The Stabi- Research: Investigat- Education: Ph.D. in Jewish thought, lization of Rabbinic Culture 100 C.E.-350 ing how the Bible as Hebrew University, Israel C.E.: Texts on Education in their Late An- recovered by Biblical tique Context (2009); Torah for the Entire critics can function as formative canon david flatto World: A Universalist School of Rabbinic for a modern religion, with a focus on Assistant Professor of Law, Religion, and Thought (in Hebrew, 1999); A Rivalry of Ge- the case of Judaism History, Penn State University Dickinson nius: Jewish and Christian Interpretation Representative publications: “Two Intro- School of Law of the Bible in Late Antiquity (1996) ductions to Scripture: James Kugel and Research: Investigat- Education: Ph.D. in rabbinics, Jewish the Possibility of Biblical Theology,” Jew- ing the foundational Theological Seminary of America ish Quarterly Review (2010); The Bodies of stories that animate God and the World of Ancient Israel (2009); or shape the Jewish lawrence j. kaplan A Prophet Reads Scripture: Allusion in legal tradition Associate Professor of Jewish Studies, Isaiah 40–66 (1998) Representative McGill University Education: Ph.D. in Bible, University publications: “The- Research: Examin- of Chicago ocracy and the Rule of Law,” Dine Israel ing differing meth- (2011); “Tradition and Modernity in the ods and approaches gila stopler (ll.m. ’01, j.s.d. ’04) House of Study,” Tradition (2011); “The to teaching Talmud Senior Lecturer King and I: The Separation of Powers in in contemporary Re- of Law, Academic Early Hebraic Political Theory,” Yale Jour- ligious Zionist Yeshi- Center of Law & nal of Law and the Humanities (2008) vot and Midrashot Business, Israel Education: Ph.D. with distinction in Near Representative publications: Halakhah Research: Using Eastern languages and civilizations, Har- and Religious Experience in the Thought recent Israeli Su- vard University; J.D., Columbia Law School of Rabbi Joseph B. Soloveitchik (forthcom- preme Court cases ing, 2012); co-editor, Rabbi Abraham Isaac to ask under what jonathan garb Kook and Jewish Spirituality (1995); co- conditions, if any, courts can legitimately Associate Professor of Jewish Thought, editor, The Thought of Moses Maimonides: intervene in matters pertaining to the Hebrew University, Philosophical and Legal Studies (1991) educational autonomy of religious com- Israel Education: Ph.D. in Jewish intellectual munities in order to achieve social change Research: Relat- history, Harvard University Representative publications: Co-author, ing the kabbalistic “Probability Thresholds as Deontological thought of Ramhal berachyahu lifshitz Constraints in Global Constitutional- and his 18th-century Professor of Law, ism,” Columbia Journal of Transnational Italian circle to other Hebrew University, Law (2011); “Women as the Bearers of the forms of writing to Israel Nation: Between Liberal and Ethnic Citi- show that research of Kabbalah cannot be Research: Explor- zenship,” Democratic Citizenship and War divorced from other branches of Jewish ing broadly the (2011); “Rights in Immigration: The Veil as creativity and learning relationship between a Test Case,” Israel Law Review (2010) Representative publications: Shamanic obligation and acqui- Education: LL.M. and J.S.D., Trance in Modern Kabbalah (2011); The Cho- sition, especially the NYU School of Law sen will Become Herds: Studies in Twentieth phenomenon of “promise” and its status Century Kabbalah (2009); Manifestations under Jewish law Representative publications: “Ring, Money, Legal Notes and Symbols,”

56 NYU SCHOOL OF LAW faculty focus charles leben that and its authority, conceptions Straus Fellow & Hauser Professor Emeritus of Public Law, Univer- of justice, and styles of rule Global Visiting Faculty sité Panthéon-Assas (Paris 2), France Representative publications: “Looking Research: Hebraic Back at ERT and its Contribution to an ran hirschl sources of interna- EU Fundamental Rights Agenda,” The Canada Research Chair, Professor of tional law doctrine ECJ After Fifty Years: The Past and Future Political Science as it emerged in of EU Law (2010); co-author, European and Law, University 16th- through 18th- Union Law (2010); “Gauging the Cum- of Toronto century Europe bersomeness of EU Law,” Current Legal When: Fall 2011 Representative Problems (2009) Course: Comparative publications: Editor, Education: Diploma in European Constitutional Law Le droit international des investissements integration, University of Amsterdam and Politics (International Investment Law) (forth- Research: Com- coming, 2012); The Advancement of Inter- rafael domingo parative constitutional law and legal national Law (2010); “The State Contract Professor of Law, University of Navarra institutions; the intellectual history of Theory and the Evolution of International School of Law, Spain comparative constitutional studies; the Law,” Recueil des Cours de L’Academie Research: Exploring judicialization of politics; the role of con- de Droit International (2003); co-editor, the Roman histori- stitutional law and courts as secularizing The International Aspects of Natural cal interconnections agents in religion-laden settings and Industrial Catastrophes (2001) between law and Representative publications: Compara- Education: Diploma in agrégation de religion in order to tive Matters (forthcoming, 2012); Con- droit public, Ecole des Hautes Etudes illuminate the cur- stitutional Theocracy (2010); Towards Commerciales, Institut d’Etudes rent debate about Juristocracy: The Origins and Conse- Politiques de Paris the role of religion in the public sphere quences of the New Constitutionalism Representative publications: The New (2004, 2007) Global Law (2010); Elementos de Derecho Education: Ph.D., Yale University; Straus and Romano (2010); ¿Qué es el Derecho LL.B., Tel Aviv University Senior Emile Noël Global? (2008) Education: Ph.D. in law, University Straus & Tikvah Joint Fellows of Navarra Joint Fellows roberto bin Professor of Constitutional Law, Tikvah and ruth gavison University of Ferrara, Italy Senior Emile Noël Haim H. Cohn Professor Emerita of Hu- Research: Develop- man Rights Law, Hebrew University, Israel ing the theory that Joint Fellow Research: Looking at state-religion re- paradigm shifts in lationships via the distinction between physics caused by pierre birnbaum a shared constitu- quantum theory can Professor Emeritus of Political Sociology, tional framework on also drive revisions University of Paris I - the one hand and in constitutional Panthéon-Sorbonne, political struggles jurisprudence France between different Representative publications: Co-author, Research: Analyzing conceptions of the Diritto costituzionale (11th edition, 2010); the careers of Jewish good on the other co-author, Diritto pubblico (eighth edition, justices with a focus Representative 2010); Le fonti del diritto (2009); co-author, on the positions they publications: “Immigration and the Hu- Profili costituzionali dell’Unione europea took as members of man Rights Discourse: The Relevance of (2008) the Supreme Court during the New Deal States and Numbers,” Israel Law Review Education: L.M. in jurisprudence, and the contemporary era (2010); “Legislatures and the Quest for a University of Trieste, Italy Representative publications: A Tale of Constitution: The Case of Israel,” Review Ritual Murder in the Age of Louis XIV: of Constitutional Studies (2006); co-author, damian chalmers The Raphael Lévy Affair, Metz, 1669 A New Covenant on State and Religion Professor and Jean Monnet Chair in (forthcoming, 2012); “Historical Sociology,” Issues Among Jews in Israel (2003); “The European Union Law, London School of International Encyclopedia of Political Jews’ Right to Statehood,” Azure (2003) Economics and Po- Science (forthcoming, 2011); “On Haber- Education: LL.B. and LL.M., Hebrew litical Science; Head, mas: Europe After Auschwitz,” Jews and University; D.Phil. in legal philosophy, European Institute Europe (forthcoming, 2011); Geography University of Oxford Research: The dis- of Hope: Exile, the Enlightenment, and Clerkship: Justice Benjamin Halevi tinctive features of a Dissimilation (2008) of the Supreme Court of Israel “transnational” pub- Education: D.Litt., University of Paris lic reason and the relationship between

WWW.LAW.NYU.EDU 57 faculty focus great chance if those of one nation Faculty Scholarship suit another. They should be in relation to the nature and principle of each government; whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil institutions. They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, Legal Universalism: whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which Persistent Objections the constitution will bear; to the religion of the inhabitants, to their incli- kevin davis challenges the idea that laws promoting nations, riches, numbers, commerce, development can successfully cross all borders. manners, and customs. Notwithstanding Montesquieu, at- tempts to identify universally desirable laws are remarkably popular. The sim- plest examples of legal universalism posit causal relationships between specific substantive legal rules, such as limited liability for shareholders of corporations, and presumptively beneficial outcomes, such as economic growth. More sophisticated universalistic theories of law and development describe “good” laws in terms of the functions they perform rather than their formal characteristics, and sometimes focus on the processes by which laws are made rather than their substantive characteristics. The primary goal of this essay is to show that Montesquieu’s basic argument can apply with full force to sophisticated contemporary forms of legal universalism as well as the simpler forms.

the essence of the case against legal universalism is as follows: Universalistic claims about law and development take the form, “The presence of Law X invariably promotes development.” The idea is that the functional relationship between law and development—that is to say, the extent to which particular laws promote develop- here is a natural urge to is limited to legal reforms. In that con- ment—does not vary fundamentally across search for what works in pro- text, the question becomes: how seriously societies. Or to put it another way, societies moting development. The should we take the possibility that there is do not vary in ways that cause variations in value of finding a cure for no set of legal institutions that invariably the impact of laws on development. If so- under-development, in terms promote development? cieties vary in ways that cause the impact T of avoided suffering and greater My own position is simple: all claims of a particular law to vary, then universal- opportunities for human flourishing, is that any specific feature of the legal system istic claims about that law cannot stand. on par with the value of finding a cure for invariably has a causal and positive rela- I believe that societies generally do vary cancer. A conundrum, though, is deciding tionship to development are inherently sus- in such ways. how seriously we should take the possibil- pect. This is an old argument. As far back as There are three relevant kinds of varia- ity that there is no single cure. This issue 1748, Montesquieu famously asserted: tion. First, development can mean differ- is probably worth considering in relation [The political and civil laws of each ent things in different places. This idea will to every kind of policy initiative, whether nation] should be adapted in such make no sense to anyone who believes that it is an HIV/AIDS program or an irrigation a manner to the people for whom there is only one universally applicable con- system. The scope of this essay, however, they are framed that it should be a ception of development, whether it happens

60 NYU SCHOOL OF LAW faculty focus to be per-capita GNP or the Human De- of economists led by Andrei Shleifer, Rafael law is associated with all of the economic velopment Index. However, a respectable La Porta, and Florencio Lopez-de-Silanes. outcomes that its proponents suggest, and body of opinion holds that, in any given so- Their central claim, based on over 10 years those outcomes are regarded as desirable, ciety, development should mean what the of cross-country statistical analyses, is this: there may still be disagreement about people—acting through legitimate politi- Compared to French civil law, com- whether replacing the civil law with the cal institutions—choose it to mean. Those mon law is associated with (a) better common law would promote development. choices will not necessarily be consistent. investor protection, which in turn Now some might say that, aside from a For example, societies may legitimately is associated with improved finan- few legal theorists, no real people, and es- disagree about how to balance economic cial development, better access to pecially not real people in poor countries, growth and income inequality, or what finance, and higher ownership dis- are sufficiently committed to abstract ideas compromises to strike for the sake of reduc- persion, (b) lighter government own- like the notion that particular laws are ining unemployment, or even, as I will show, ership and regulation, which are in trinsically valuable to justify using them whether certain kinds of legal institutions turn associated with less corruption, as criteria for determining what makes have such overriding intrinsic value that better functioning labor markets, good law. All that most people care about they must be embraced at all costs. and smaller unofficial economies, is peace and prosperity. I am not persuaded Societies might also vary in ways that and (c) less formalized and more in- by these arguments. alter the causal connections between law dependent judicial systems, which Take the example of the English-speak- and social or economic outcomes. Law is are in turn associated with more se- ing Caribbean. Over the past decade or so, part of a complex system that determines cure property rights and better con- the most pressing legal issue in the region such outcomes. The system is complex tract enforcement. has been whether to retain the Judicial Com- in the sense that, even if there is a causal The argument that the common law is mittee of the Privy Council as the appellate connection between a particular law and universally superior to the civil law is vul- court of last resort or to replace it with a local a particular development outcome, that nerable to all of the fundamental objections institution known as the Caribbean Court connection will be sensitive to interactions to legal universalism. Even if we accept of Justice (CCJ). A number of pragmatic ar- with other features of the society. First, the Shleifer et al.’s empirical claims, people guments weigh for and against abandoning law may not be necessary to induce the who hold different conceptions of devel- the Privy Council in favor of the CCJ, includ- outcome in question because the presence opment may disagree about whether those ing, on one side, arguments about relative of certain other factors is sufficient—there claims count as proof that common law travel costs and familiarity with local values, may be substitutes for the law. Second, does a good job of promoting development. and, on the other side, the relative expertise the law may not be sufficient to generate Those disagreements can take at least and independence of the Privy Council. In- the outcome in question—there may be two different forms. In the simpler form, terestingly, in addition to these pragmatic complements for the law, in the absence of law is viewed merely as a means of achiev- arguments, a prominent argument in the which it has no impact. ing certain economic outcomes, and the debate—perhaps even the most promi- The most interesting universalistic disagreement is about how to evaluate nent—has been about the intrinsic value of claims about law and development assert them. The idea that such disagreement having final judicial decisions made by local that particular laws are either necessary or exists seems eminently plausible. Not ev- judges rather than foreign judges. One law- sufficient, or both, to cause particular de- eryone cares about access to finance and yer summed it up this way: “Every nation velopment outcomes. However, if the law ownership dispersion, or obsesses about aspires to its own institutions. It has been in question has substitutes, and those are lighter government regulation. Why should said very often in public life that self gov- present in some societies but not in others, they? You might say that we care about ernment is better than good government.” then the law will be necessary to promote these outcomes because they tend to be Think about the ramifications. The- im development in some societies but not in associated with economic development, plication is that the best law ought to be se- others. Similarly, if the law in question has as measured by growth in GDP per capita. lected without regard to its tangible social complements that are not universally dis- Interestingly, though, no matter how hard or economic impact, but rather on the basis tributed, then adopting the law will be suf- they tried, the authors of this study could of its pedigree. Think also about the rami- ficient in some places but not in others. not show that the common law was causally fications of taking this kind of argument The main objections to universalistic connected with higher growth rates. seriously. If creating a legal system with legal theories are that they cannot accom- Common law universalism also ignores a particular pedigree is considered a le- modate variations across societies, either a second way in which conceptions of de- gitimate objective of legal reform, then we in conceptions of development or in the velopment might differ. Sometimes people open a tremendous amount of room for dis- presence of substitutes or complements for treat laws not as means to an end but as agreement. Some people may think the ul- the components of the legal system upon ends in themselves. This possibility radi- timate end is homegrown law. Others who which they focus. By way of illustration, cally expands the scope for disagreement want to escape the shackles of traditional consider two prominent examples of uni- about both what forms of social change society may think that the most pressing versalistic claims about the relationships represent development and whether par- concern is the development of modern law. between law and development. ticular laws contribute to development. For Others might be preoccupied with a legal The first example emphasizes the impor- example, the French might object, saying system they believe manifests due pro- tance of common law (as opposed to civil that having judges make law is inherently cess or the rule of law. Others think that law, which traces its heritage to France) undesirable and that having a lawmaking none of those sentimental concerns are to development. In the contemporary lit- process that relies exclusively on the legis- relevant, and that all that matters is eco- erature this claim has most famously been lature to make law is an intrinsically valu- nomic growth. No single legal model, and elaborated in a series of papers by a group able end. In this view, even if the common certainly not one premised on the inherent

WWW.LAW.NYU.EDU 61 faculty focus superiority of the English common law, is compatible with all of these divergent conceptions of the purposes of legal reform. Common law universalism is also vulnerable in some straightforward ways to the objection that legal universalism ignores the significance of potential substitutes. France and Belgium are rich countries. They are wonderful places to live. It is difficult to argue that their civilian legal systems place more of a drag on their development than America’s common law system. In fact, as even Shleifer et al. ad- mit, the most plausible conclusion is that France and Belgium have ways of achieving development that serve as effective substitutes for a common law legal system. Finally, there is the objection that the universalistic theories have to account for complements. The common law arguably places a premium on having good judges. law; increased employment; greater eco- up the lawyers working in the registry office In other words, good judges are comple- nomic growth—seem inoffensive. and arrange to have their clients’ files expe- ments to reforms that increase reliance Consider, however, the law of secured dited. In other words, there was an informal on judge-made law. In this view, trying credit. The Doing Business project as- substitute for the kind of formal institutions to adopt a common law system in a juris- sumes that it is best to permit debtors to the researchers were looking for. diction without competent or trustworthy grant security interests in a broad range of In another example, a USAID lawyer judges seems like a recipe for disaster. collateral, to make it as fast and as cheap named Wade Channel reports that, for a pe- as possible for a secured creditor to fore- riod of time, USAID lawyers bragged that, as a second and somewhat more so- close in the event of default, without going a result of reforms they had helped usher in, phisticated universalistic take on law and to court, and to give secured claims pri- it took only eight days to start a business in development is embodied in some recent ority over all other claims, including tax Afghanistan. However, while it was true that research conducted by the World Bank as claims and claims of employees. This may it took eight days to incorporate a business, part of its Doing Business project. The prem- make sense if you think that the purpose of it still took up to 18 months to get it up and ise of the project is that law promotes eco- debtor-creditor law is to minimize the cost running because all of the delays had been nomic development by facilitating certain of credit. But if you are concerned about shifted to the licensing stage. The reforms key economic activities such as starting a issues such as due process for debtors, or were no doubt helpful in some sense. But business, collecting on a debt, transferring protecting the welfare of vulnerable credi- they would have been more helpful if they real property, or moving goods across bor- tors such as employees, then you may have had been complemented by an efficient set ders. The Doing Business team collects data a very different take on what qualifies as an of licensing laws. As it stands, they may not from lawyers around the world on the time, optimal law of secured transactions. Again, have been worth the investment. cost, and number of procedures required to the concern is that there may be legitimate complete these tasks. They compile those grounds for disagreement about the ends to so what should be done with these data into an “ease of doing business index” be served by any particular law. concerns about legal universalism? As far and then rank the countries. They publish The Doing Business project’s prescrip- as I can tell, the objections to universalism features on “who reformed and who didn’t” tions also neglect the roles of substitutes have been deployed in three distinct kinds om

as well as “the top 10 reformers.” There is for the types of legal institutions they con- of debates. First, the concerns outlined c clearly a message about what counts as demn, and complements for the types of above have been raised in substantive de- ank. good business law: laws that make doing legal institutions they praise. For example, bates as critiques of specific examples of le- b business faster, cheaper, and simpler. And a few years ago one of the African students gal universalism. For example, critics of the artoon this claim is undeniably universalistic. A in my law and development class took ex- Doing Business project have used versions c ception to the data on the number of days of these arguments to criticize its findings heading in the first Doing Business report www. says it all: “One Size Can Fit All—in the it took to start a business in her country. It and recommendations. Concerns about / tion tion

Manner of Business Regulation.” reportedly took 30 days, placing the coun- universalism have also been used in meth- c At first glance the Doing Business team’s try in the bottom half of the countries on the odological debates to question whether it is brand of legal universalism seems invul- World Bank’s table. She claimed that it could even worthwhile for scholars to search for Colle nerable to the standard objections. Since be done in two or three days. Her objec- or test universalistic theories. This is one the focus is on business law, the room for tion was to the fact that the World Bank re- way, for instance, to understand claims that The New Yorker New The emotionally inspired disagreement seems searchers had asked how long it would take it does not even make sense to speak of a / attenuated—will anyone really take to the to start a business without using a lawyer. If field such as law and development. Finally, streets over commercial law reform? In any you used a lawyer, it could be done in two concerns about universalism have been event, the stated objectives of the Doing or three days, in part because the lawyers put to political use—they have been used

Business project—faster, cheaper, simpler all knew one another and could simply call to support claims that one kind of expertise © Brian Savage

62 NYU SCHOOL OF LAW faculty focus and one set of experts ought to be given pri- macy over others in lawmaking processes. For those who have faith in universalistic Relative Doubt: Familial theories, it makes sense to view the task of legal reform as a largely technocratic exercise, properly assigned to experts steeped in DNA Database Searches the international literature on the impact of various reforms and insulated from less sci- erin murphy describes the perils to our civil liberties if entific influences such as personal ties, re- law enforcement is allowed to use partial DNA matches. spect for tradition, or the desire to advance particular political parties or programs. By contrast, placing a higher value on knowledge of local values or the complexities of local society weighs in favor of governance by people with much stronger attachments to and knowledge of local society. These are all valid ways of invoking concerns about legal universalism, but caution is warranted. It makes little sense to use these objections to support one universalistic theory over another. It is also difficult to justify abandoning the quest for a universally applicable theory of law and development. There may be conceptions of development that have virtually universal appeal—proponents of the universality of human rights would certainly make this argument. And, in principle, complex systems that vary in their details but are made up of the same basic components—e.g., human beings living in post-industrial society under conditions of scarcity and interde- pendence—might exhibit persistent regu- larities, including regular relationships between certain laws on the one hand and social or economic outcomes on the other. Moreover, whether or not there are univer- n april 2008, california became five years since the FBI lifted restrictions sally valid relationships between law and the first state in the country to set forbidding interstate sharing of informa- development, there are almost certainly out an explicit policy authorizing tion from database searches about anything some relationships that can be expected intentional DNA databank searches other than a “putative perpetrator,” addi- to remain constant over modest periods of for partial matches—commonly tional jurisdictions, most recently Virginia time and across roughly similar societies. knownI as “familial” or “kinship” and New York, have formally announced Forsaking input from people with insight searches. Following enactment of the pol- their intention to engage in various forms into those potential relationships smacks of icy, police conducted 10 searches, but all of familial matching. Only the District of throwing the baby out with the bathwater. proved unsuccessful. However, in April Columbia and one state, Maryland, have The claim here is not that universalistic 2010, police discovered a partial match to laws forbidding familial searches. In sev- theories of law and development should be a recently convicted offender they thought eral states, laboratories have conducted or rejected out of hand. Rather, they should might be the son of the Grim Sleeper, the reported such matches, citing the absence be regarded skeptically and tested against unknown perpetrator of at least 11 murders of formal laws or policies either permitting a powerful set of objections to which even that began in the 1980s, which had been or forbidding them. Such legal uncertainty the most sophisticated theories of this kind connected by DNA evidence but which can result in serious consequences—in have proven vulnerable. failed to match any known offenders in 2007, the administrator of the Massachu- law enforcement databases. After a sting setts state DNA database was fired in part kevin davis, Beller Family Professor of operation in which officers surreptitiously for reporting four near-matches, a practice Business Law, focuses his scholarship on collected a piece of pizza discarded by the state officials claimed was prohibited. contract law, the governance of financial father/suspect, tests revealed a match to It is always difficult to question a law transactions involving developing coun- the crime-scene samples, and the suspect enforcement technique that results in the tries, and the general relationship between was arrested and charged with the crimes. apparent apprehension of a notorious killer. law and economic development. This excerpt The Grim Sleeper case is simply one But the merits of any law enforcement is adapted from a paper of the same title whitecap on a cresting tide propelling fa- method ought not be judged solely on its published in the June 2010 University of milial match methods toward legitimiza- capacity to achieve success; if that were the Toronto Law Journal. tion as a law enforcement technique. In the case, we would have no reservations about

WWW.LAW.NYU.EDU 63 faculty focus installing cameras in every home, attach- in theory share none—the unpredictabil- rules have long endeavored to counteract: ing GPS bracelets to every individual, or ity of inheritance means that it is possible guilt by association, racial discrimination, taking DNA from every citizen. Likewise, for one sibling to inherit one-half of a par- unwarranted propensity inferences, and a more sensitive examination of the Grim ent’s 26 alleles, while the other inherits the even biological determinism. Sleeper case illustrates both the promise other half. Generally speaking, however, and the perils of familial DNA searching. siblings bear genetic resemblance—one they create arbitrary suspects On the one hand, familial searches offer the estimate suggests that siblings on average Familial searches are, by nature, arbitrary opportunity to solve horrific crimes that share 16.7 alleles in common. The prob- and discriminatory searches. There has have frustrated all law enforcement efforts; ability of overlap turns on several factors— been much debate over their dispropor- on the other hand, the 10 prior unsuccess- most pertinently on common inheritance, tionate impact on minority communities as ful searches reveal the method’s inherent but also on the likelihood that the parents a result of the demographics of the crimi- fallibility, and gesture toward the possibil- themselves shared a particular allele and nal justice system in general, but familial ity of false starts or wrongly cast suspicion. the commonness of that allele in the pop- searches are also discriminatory in a more As a matter of law and policy, then, how ulation at large. Matching is thus not just fundamental way: they unjustly distin- should we think of this emerging use of the a question of quantity (in terms of total guish between innocent persons related to nation’s DNA databases? number of alleles in common), but also of convicted offenders and innocent persons quality (how many of those alleles are rare unrelated to convicted offenders. familial match basics versus common). That is, just because a search in a data- The vast majority of the 3.2 billion nucleo- It is for this reason that the number of base returns some partial matches does not tides that make up an individual’s genome leads generated in a familial match search itself make it more likely that those partial strand are identical to that of another hu- will be a function of, among other things, matches belong to a relative of the crime- man being. But there are certain areas of the technical parameters of the search. The scene sample source. Visualize it this way: known variation, called “microsatellites,” higher the standard set (of allelic quality imagine there are two databases, one com- that vary among individuals. The most and quantity), the greater likelihood that a posed of profiles of 10,000 convicted offend- common form of forensic DNA typing in the match will be probative; but high standards ers and the other composed of profiles of United States, known as “STR” or “single- also increase the likelihood of excluding a 10,000 people picked at random. A crime tandem repeat” typing, looks to 13 of these relative that might have been found if stan- occurs, and a DNA sample is developed variable loci on the genomic strand and dards had been lowered. Choosing how to from the scene. In searching for an ex- counts the number of times certain known conduct the search is thus often a trade-off act match in each database, it is arguably sequences repeat themselves. At each locus, between possibly missing a lead but rais- reasonable to expect that the convicted analysts measure two repeat lengths, oth- ing the likelihood that a lead is good, and offender database is more likely to return erwise known as “alleles”—one descended almost certainly returning a good lead, but a “hit” than the random database, on the from the mother and one from the father. By having it be buried within a large number theory that convicted offenders are more counting the repeats at 13 loci, an analyst of false leads. likely perpetrators of criminal offenses can obtain 26 discrete measurements that This trade-off is exemplified in the -man than those never before convicted (not, we help individuate one person from another. ner in which partial match leads come should note, because they are more likely At present, all 50 states and the federal about, since near-miss matches can come to have a particular genetic profile). We government collect and type biological about two ways. The first, often called “in- might also justify such a search by saying samples, typically from convicted persons, advertent partial matching,” occurs when that convicted offenders, by virtue of their but more recently also from arrestees. investigators search the database intend- crimes, have forfeited the privacy to which These DNA profiles are then stored in data- ing to find an exact match, but inadver- law-abiding persons are entitled, and thus bases at the local, state, and national levels; tently turn up matches that are closely it is legally defensible to treat them as the as of November 2010, the national database approximate. At that point, the analyst may “usual suspects” in looking for crime-scene contained over 9.1 million known offender choose either to report the partial matches matches. Indeed, the constitutional argu- profiles. These databases were originally to law enforcement or to return a report ments upholding the collection and data- established in order to make exact matches that states that no exact matches were basing of DNA from convicted offenders between profiles extracted from crime- found. Which of those routes the analyst rested on precisely these claims. scene evidence and known offenders, or takes often depends on the policy, custom, But what if the search returns no exact to the same profile across different crime or laws of the particular jurisdiction. The matches? Is there any reason to think that scenes. But the search software also allows second method, called “intentional famil- a search for a partial match will be more for partial or inexact matches, which can ial searching,” is an intentional search for likely to find a perpetrator if conducted in be useful because related persons are more partial match leads. In that case, the very the convicted offender database than in the likely to have similar genetic profiles than purpose of the search is to identify possible random database? No. As a matter of biol- unrelated persons. offender partial matches and then investi- ogy, there is no reason to expect that one Importantly, however, such similar- gate any of their relatives. database is more likely to have a similar ity is inexact. In much the same way that genetic profile than the other, and indeed full siblings in a family may all physically arguments against we would expect to see an equal number of resemble one another or may appear ut- familial searches partial matches from each database search. terly dissimilar, genetic profiles can also Despite their obvious allure, I argue that In other words, there is nothing about biol- vary according to the vicissitudes of na- familial matches should be forbidden be- ogy—the profile itself—that makes it more ture. At minimum, a child and a parent cause they embody the very presumptions likely to match a convicted offender data- will match at 13 alleles, but siblings could that our constitutional and evidentiary base than a random persons database.

64 NYU SCHOOL OF LAW faculty focus This logic fails only if we believe that the innocent relatives of convicted offenders are more likely themselves to have perpetrated a crime than the innocent relatives of uncon- victed people. Indeed, that is an argument that some proponents of familial searches have made, but that argument is too poorly supported by empirical evidence to serve as the basis for segmenting the law-abiding public into two classes—those who are au- tomatic suspects (relatives of offenders) and everyone else. Even if it could be shown that relatives of convicted offenders are more likely to themselves have committed an offense, then that simply suggests that those relatives will already be, of their own accord, in the offender databases. In a family of five brothers, one of whom has a criminal record and rest of whom do not, familial searches are appropriate only if we think it proper to assume that the law-abiding brothers de- serve to be treated as suspects. Finally, to the extent that this arbitrary use of DNA databases is justified as the however, if the victim had died in the at- relatives of an offender: what happens next? “best available option”—then it is critical tack, or had not been located 10 years af- No law prevents investigators from inquir- to note an obvious alternative. If society’s ter the offense, or if the liaison had been ing of family or coworkers if a suspect knew commitment to DNA investigation of in- merely fleeting? Given that genetic evi- the victim or engages in certain activities nocent persons is so strong that the ben- dence alone can serve as the basis of con- (say, frequenting prostitutes), or if the efits outweigh the drawbacks, then the viction, it is easy to imagine that a grave suspect cannot account for where he was equitable approach is to create a national, injustice might have occurred. last week. No law requires that officers act universal DNA database. Then all innocent The serious potential costs of familial quickly in testing the DNA sample volun- persons—not just those who happen to be matches must also be weighed against their tarily submitted for exclusion rather than related to a convicted offender—would real benefit. It is interesting to observe that allow the sample to get lost in a year-long share equally in the burdens and benefits even jurisdictions that regularly conduct backlog during which the suspect’s name of genetic typing. such searches, in both the United States is muddied and tarred. And no law man- and the United Kingdom, report only mod- dates that, once a name is formally cleared, they are insufficiently probative erate actual success. Although by no means the officer return and assure the suspect’s The imprecision of familial matches means scientific, it is perhaps illustrative that the family and coworkers that he is truly as in- that searches will inevitably return false website of one of the most vocal proponents nocent as he was the day before the inves- leads, or that on occasion a “source” will of familial DNA searching, Denver District tigation began. No national law requires prove not to have been a perpetrator. Yet Attorney Mitch Morrissey, contains an on- that samples submitted in such an investi- the investigation that follows a match going list of successful identifications of gation be destroyed once a suspect is ruled based on nothing more than common “ge- suspects using the technique; although out, or prohibits the person’s profile from netic suspicion” can indelibly mark the sus- culled from around the world, it is currently being uploaded into the national database. pected person. Matches might lead police up to only 31. Simulated models likewise The worst indignity of an investigation can

om to “backward reasoning”—in which they demonstrate that it is in fact quite difficult be living under a cloud of suspicion; even c start from the genetic tip and build a case to strike a functional balance between set- mere suspicion, quickly dispelled, has the ank. b around it, rather than going through the ting partial match thresholds low enough potential to disrupt a career, destroy a mar- laborious process of traditional investiga- to ensnare a good lead and high enough to riage, or ruin a life. artoon c tion. By way of illustration, consider the ensure that a manageable number of over- Moreover, in our society, families are case of a man who volunteered his DNA all leads are returned. Such indications largely social, not biological, constructs. www.

/ sample in a dragnet conducted to find a that familial search methods deliver lim- Yet when investigators follow up on genetic

tion tion rapist. Although the sample did not match ited positive results, when weighed against familial searches by asking, “Do you have c in the rape case, it was not destroyed but their serious risks and costs, ought to tip any children?” or “Who is your father?,”

Colle was instead entered into the database. A the balance away from their continued use. they ask a biological, not social, question. later search linked the sample to a 1996 Answering may call for the disclosure of rape, and the man was arrested despite his they invade privacy the most intimate kinds of information: protestations of innocence. He was eventu- Familial searches unjustifiably compro- abandoned parental bonds, adoptee rela- The New Yorker New The

/ ally released when the victim came forward mise the privacy of a variety of individu- tionships, children conceived with the aid to exonerate him, explaining that she and als, perhaps most gravely the implicated of technology, even family secrets about k Ziegler c the man had engaged in consensual sex just innocent relatives of a databased person. paternal identity. A lead may feel torn be-

WWW.LAW.NYU.EDU 65 faculty focus exposing them to intrusive investigation, the legitimizing mantel of scientific truth. have laws that set out exactly who should and revealing a confidence that severs the DNA typing already employs sorting meth- be required to submit genetic material for perceived biological tie. Analysts assign- ods, borrowed from the U.S. Census’s ad- inclusion. The courts continue to confront ing value to genetic relationships may in- mittedly “social, not biological or genetic” challenges raised by those mandated by advertently uncover biological truths that racial and ethnic categories, that have statute to contribute DNA samples, and even the parties do not know. And such little scientific meaning. But even if assert- consensus is lacking around certain prac- invasions of privacy may be particularly ing actual racial identity were straightfor- tices like arrestee sampling. Yet familial harmful for family members who may have ward, it still would not definitively dictate searching easily skirts such challenges already suffered as a result of the actions of a particular genetic profile, since genetics by effectively adding relatives to the data- their relative, the databased offender. They at best offers probabilities and likelihoods. base not through statutory mandate, but may have incurred financial losses due to In fact, the statistics used to compute allelic through search technique. As the Ameri- legal costs, have themselves been victims frequencies depend on the very existence of can Society of Law, Medicine, and Ethics of the offender, or have endured emotional a degree of heterogeneity in the reproduc- wrote in a report it prepared on the issue, harms from incarceration, embarrassment, tive profiles of the population at large. Thus, “[l]ow stringency searches are an implicit abandonment, or betrayal. Yet by exploit- endorsing an investigative method that database expansion that should be open ing DNA profiles, the state becomes a party quantifies findings in starkly racial terms to public debate.” If some persons are to be to the family’s further victimization. conveys a sense of biological certainty that added to the database, it should be by duly science cannot support. It risks investi- enacted law, not executive order or surrep- they are racially discriminatory gators pursuing a profile assumed to be titious laboratory search technique. The concerns related to race and ethnic- “White” or “Hispanic” or “Black” when bi- ity are manifold, but I will focus on three ology supports such inferences only weakly. conclusion here. First, familial searches of convicted Lastly, this widespread acceptance of There are also possible constitutional ob- offender and arrestee databases exacer- racial and ethnic categorization as a means jections to familial search methods, but bate the actual and apparent disparities of of quantifying DNA results (say, allelic fre- those remain to be aired in the courts. It the criminal justice system. Given the dis- quencies) opens the door to a kind of 21st- may be that, like other investigative meth- proportionate representation of blacks and century racial eugenics in which crime and ods that pose serious risks to privacy such Hispanics in the criminal justice system, the criminology are viewed largely as functions as wiretapping telephones, familial search use of known offender databases to conduct of genetics and biology. Of course, advocates techniques will be judged appropriate familial searches necessarily means that of familial search policies might argue that, only upon the condition that statutory the burden of such search techniques will to the extent that some racially discrimina- safeguards superintend their use. If such primarily be borne by innocent relatives tory effects may occur as a result of familial methods are to be approved, then at the of those subpopulations. Quantifying the searches, they are offset either by the ben- very least a variety of restrictions, imposed exact impact on those groups is imprecise efits of the searches themselves or by the on the basis of either law or policy, should and difficult, but even advocates of familial claim that studies show a “strong probabi- be implemented in order to maximize the searching have acknowledged that “familial listic dependency between the chances of likelihood of successfully identifying a searching potentially amplifies . . . existing conviction of parents and their children, as perpetrator and minimize the potential disparities” in the criminal justice system. well as among siblings.” But it is easy to fall intrusiveness of any investigation. For in- Moreover, using offender databases to into a familiar pattern of racial stereotyping stance, familial searches might be limited find relatives sends a message that in cases without asking more difficult and nuanced to certain kinds of cases and conducted in where there is no evidence of the perpetra- questions about the social construction of accord with strict technical search param- tor’s identity or ethnicity, it is fair to focus crime, or conversely the distribution of priv- eters. The permissible scope of subsequent suspicion not just on the “usual suspects,” ileges, along racial lines. Festooning racial investigation could be circumscribed, and but on the innocent relatives of the usual assumptions in technological flourishes require, for example, that samples taken for suspects. In this respect it is misleading for particularly distracts from such inquiries: matching purposes be processed within advocates of familial searches to repeatedly a police department would readily draw a designated time frame or with confi- suggest that the technique is no more per- criticism if it announced a policy of focus- dentiality terms akin to those in the field nicious than looking in a DMV database for ing primary attention in all cold cases on of healthcare. And perhaps most impor- a match to a partial license plate. Such an innocent minority young males, simply be- tantly, concerted effort to regulate familial analogy is inaccurate: a search in a DMV cause statistically their rate of arrest is dis- searches should embed structures for gen- database is a search of the entire universe proportionately high. An equivalent policy, eral quality control and oversight by man- of possible suspects—the DMV database imposed on genetic grounds, should escape dating the collection and review of data is a registry of all license plates. Instead, a no lesser opprobrium. concerning the efficacy of searches con- familial search is like looking for partial ducted. In short, even if we should choose matches to a license plate, but in a database they are undemocratic to overlook the disadvantages of this tech- that contains only cars registered to those Closely related to individual liberty con- nique, we should not wholly ignore them. with surnames starting with M through Z. cerns of those persons affected by familial Second, the dependence on racial cat- searches are democratic accountability Professor of Law erin murphy focuses her egorization in interpreting DNA typing re- concerns about the quality of the public research on issues related to technology, state sults transmits a biological determinism debate concerning the scope of the data- power, and the criminal justice system. This about race that is not supported by science bases. DNA databases are largely creatures excerpt is adapted from “Relative Doubt: Fa- and that risks formally inscribing within of legislative enactment. That is, the fed- milial Searches of DNA Evidence,” published the justice system inaccurate biases under eral government and each of the 50 states in the December 2010 Michigan Law Review.

66 NYU SCHOOL OF LAW faculty focus of classifications that receive this critical form of protection. The New Equal Protection The Court has not left us in suspense about why it has done so. In the 1985 case kenji yoshino analyzes the U.S. Supreme Court’s shift Cleburne v. Cleburne Living Center, the from group-based civil rights to universal human rights. Court denied individuals with mental re- tardation heightened scrutiny. Writing for the majority, Justice White observed: [I]f the large and amorphous class of the mentally retarded were deemed quasi-suspect for the reasons given by the Court of Appeals, it would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so. In Cleburne, Justice White expressed the “too many groups” problem—the concern that if the mentally retarded were granted heightened scrutiny, the Court would have no “principled basis” on which to deny other groups the same protection. Because the Court is a “forum of principle,” the absence of such a basis ended up dooming the ur nation is increasingly three closing equality doors claims not just of mentally retarded indi- beset with pluralism anxiety. Over the past 40 years, the Supreme Court viduals, but also of other groups. Commentary from both the has closed off three forms of relief under The Court has also curtailed protections right and the left has expressed the Constitution’s equality and free exer- even for groups that have already received the fear that we are fracturing cise guarantees. Under its own account, it heightened scrutiny by foreclosing so-called Ointo fiefs that do not speak with has done so because of the fear that it will “disparate impact” claims. In the 1976 case each other. That fear has a basis in fact, as not be able to draw principled distinctions Washington v. Davis, the Court held that dis- the nation confronts “new” kinds of people among various groups in our diverse society. parate impact on a protected group would (introduced to the country through immi- First, the Court has closed the canon of not, in and of itself, lead the Court to ap- gration) or newly visible people (introduced heightened scrutiny classifications under ply a higher level of scrutiny. To succeed, a to the country by social movements). We are, the equal protection guarantees of the Con- plaintiff would have to show discriminatory for instance, arguably the most religiously stitution. “Heightened scrutiny” means intent against the group on the part of the diverse country in world history. The num- the Court looks more closely at the gov- government. Three years later, in Personnel ber of associations for sexual minorities, ernment’s use of a particular classification. Administrator v. Feeney, the Court defined individuals with disabilities, and the aged When the Court uses this level of scrutiny, it “discriminatory intent” so stringently that it has skyrocketed. No end lies in sight. generally invalidates the government’s ac- was tantamount to malice. Pluralism anxiety has pressed the Su- tion. While the phrase “heightened scru- To see the restriction represented by the preme Court’s constitutional jurisprudence tiny” suggests a closer look rather than Davis/Feeney framework, consider Feeney away from group-based civil rights toward a result, this is a jurisprudence in which itself. The case involved a Massachusetts universal human rights. To demonstrate looks can kill. civil-service hiring preference for veter- this movement, I first show how the Su- Beginning in the 1940s, the Court ex- ans. The vast super-majority of veterans preme Court has closed three traditional tended such scrutiny to five classifications: were men. Even though Helen Feeney (a equality doors in the past decades. I then race, national origin, alienage, sex, and non-veteran) consistently outshone other show that even as the Supreme Court has non-marital parentage. While groups still applicants on her civil service examina- closed these equality doors, it has pushed sometimes petition the Court for heightened tions, she was denied employment because open related liberty doors to permit the rel- scrutiny, these requests seem somewhat an- of this veterans’ preference. She brought evant constitutional values expression. Fi- tiquated. The last classification to receive an equal protection challenge, arguing nally, I turn to a normative assessment of heightened scrutiny was non-marital par- that the preference for veterans operated whether this shift is desirable. entage in 1977. The Court has closed the list as an unconstitutional preference for men.

WWW.LAW.NYU.EDU 67 faculty focus The Court disagreed. It observed that even though Massachusetts might have known this preference would operate to fence out women, mere knowledge was not enough. Feeney would have to show that Massa- chusetts adopted the preference because of, not just in spite of, its disparate impact on women. This level of intent is hard to prove because governmental actors—particularly collective bodies such as legislatures—usually have mixed motives for their actions. Feeney lost her case. In formulating the Davis/Feeney framework, the Court did not refer to pluralism anxiety. However, it did refer to the “too many groups” problem when it moved the framework over to the free exercise context in 1990. In Employment Division v. Smith, the Court considered two Native American religionists who smoked peyote for sacramental purposes. In 2000, the Court struck down a provision statute that prohibited sodomy between The Court acknowledged that the general of the federal Violence Against Women Act people of the same sex. In striking it down, ban on controlled substances would have that permitted victims of gender-motivated the Court could have decided the case on a disparate impact on those who smoked violence to sue their assailants. equality grounds. But this would probably peyote. However, it held that because Con- Even when Congress was permitted to have required the Court to grant sexual ori- gress had not criminalized peyote with enact legislation, Boerne often prohibited it entation some form of heightened scrutiny. the intent to burden religious minorities, from enforcing that legislation against the So the Court struck down the statute on the religionists could not get an exemp- states. In 2001, the Court found that Title I of liberty grounds, stating that it violated the tion from the general ban. Writing for the the Americans with Disabilities Act, which right of every individual to sexual privacy Court, Justice Scalia observed that “in a protects individuals with disabilities from in the home. This permitted the Court to cosmopolitan nation made up of people of employment discrimination, could not be avoid the “too many groups” problem, be- almost every conceivable religious prefer- enforced against state employers. The Court cause the right it vindicated belonged to ence,” accommodating religious drug use once again justified this limitation with ref- individuals of all sexual orientations. Yet would “open the prospect of constitution- erence to pluralism anxiety. In his majority while this rising tide lifted all boats, it lifted ally required religious exemptions from opinion in Alabama v. Garrett, Chief Justice some more than others, given that sodomy civic obligations of almost every kind.” In Rehnquist stressed that disability only drew statutes disproportionately targeted gay a 2006 debate he had with Justice Breyer, rational basis review under Section 1 of the individuals. The Court acknowledged this Justice Scalia put his “too many groups” Fourteenth Amendment. In his view, this by observing that the right to private con- argument in Smith more humorously. He meant Congress’s power to legislate with sensual adult sexual intimacy needed to stated that while “France is a country with respect to disability was concomitantly be guaranteed to prevent gay individuals 300 cheeses and two religions, the United constrained. He cited the entirety of Justice in particular from being demeaned. States is a country with two cheeses and White’s “too many groups” passage from The Court has also bypassed the bars 300 religions.” Under this view, judicial re- Cleburne, describing it as “quite prescient.” on disparate impact claims through its ligious accommodation is as impossible in due process analysis. Restrictions on abor- the United States as judicial caseic accom- three opening liberty doors tion obviously have a disparate impact on modation would be in France. If that were the end of the story, the pros- women. But in a 1993 case, the Court ob- The final way in which the Court has pects for constitutional civil rights would served that such a disparate impact would shut down traditional group-based equal be dreary. But as the Court has closed these not, in and of itself, raise equal protection protection claims is by placing restrictions three equality doors, it has pushed related concerns. It cited Feeney for the proposition on Congress’s ability to enforce the Equal liberty doors further open. The dynamic that such abortion restrictions would have Protection Clause. The fifth section of the has been like that of squeezing a balloon, to be enacted not in spite of, but because Fourteenth Amendment gives Congress the where pinching off equality jurisprudence of their negative effect on women to trig- power to “enforce” the other provisions of has caused the Court’s civil-rights commit- ger the heightened scrutiny garnered by the amendment, such as the Equal Protec- ments to be pressed over to a collateral area gender-based distinctions. tion or Due Process Clauses. In the liberal of doctrine—the court’s liberty or “substan- Yet the Court’s refusal to analyze abor- Warren Court years, the Court deemed Con- tive due process” jurisprudence. tion as a women’s equality issue does not om c

gress’s so-called “Section 5” powers to be First, the Court has sidestepped the ban mean it left the woman’s right to choose k.

extremely broad. However, in the 1997 case on new heightened scrutiny classifications completely unprotected, as evidenced by c to s City of Boerne v. Flores, the Court severely by translating group-based equality claims its due process decisions in Roe v. Wade conscribed Congress’s Section 5 powers. into universal liberty claims. For instance, and Planned Parenthood v. Casey. Like This meant Congress could not enact cer- in the 2003 case Lawrence v. Texas, the Court Lawrence, these due process “liberty” de- c artoon ww. tain forms of civil-rights legislation at all. considered the constitutionality of a Texas cisions underscored their equality dimen- W

68 NYU SCHOOL OF LAW faculty focus sions. In 1973, the Roe Court noted that Court’s movement toward a liberty analysis, We should ask, then, why societies are not “[m]aternity, or additional offspring, may I believe it would be premature categori- similarly pressed to surmount their anxiet- force upon the woman a distressful life and cally to affirm the shift in the Court’s juris- ies rather than to surrender to them. When future.” Such statements led then-Justice prudence, given that it cuts across so many pluralism anxiety instructs us that there Rehnquist to complain in dissent that the contexts. My primary aim is to initiate a are too many groups to permit group-based Court was importing “legal considerations discussion of what is gained and lost by the protections, we should question why this is associated with the Equal Protection Court’s shift toward the liberty claim. so. Any argument to the contrary is, as Jus- Clause of the Fourteenth Amendment to The largest advantage of the liberty tice Brennan put it in a different context, an this case arising under Due Process Clause claim is that it combats pluralism anxi- argument against “too much justice.” of the Fourteenth Amendment.” When ety. The new equal protection paradigm I think this position is utopian, at least it revisited Roe in 1992, the Casey Court stresses the interests we have in common in this raw form. We may someday have stood its ground, contending: “The abil- as human beings rather than the demo- six or seven heightened scrutiny classifi- ity of women to participate equally in the graphic differences that drive us apart. In cations rather than five. Obama’s attorney economic and social life of the Nation has this sense, the shift from the “old” to the general, for instance, has recently argued been facilitated by their ability to control “new” equal protection could be seen as a that the Court should recognize sexual their reproductive lives.” movement from group-based civil rights to orientation as a heightened scrutiny clas- Finally, the Court has used liberty universal human rights. sification. But we cannot have 20 without analysis to loosen some of the restrictions Seen in that light, pluralism anxiety is diluting the meaning of heightened scru- precedent has placed on Congress’s abil- a blessing in disguise. It causes us to vary tiny for all the classifications that earn it. ity to enact civil rights legislation. In the and vary the human being in our imagina- Similarly, I have difficulty seeing how a re- 2004 case Tennessee v. Lane, the Supreme tion until we discover what is invariable turn to disparate impact analysis could be Court considered whether Congress’s Sec- about her. This brings us to a clearer sense put into practice, particularly in the free ex- tion 5 power permitted it to enact Title II of of what rights we need to flourish as human ercise context, where the number of groups the Americans with Disabilities Act, which beings. Confronted with massive diversity is potentially infinite. Unless we want the protects the rights of individuals with dis- in the global context, we have responded Court to go back to evaluating the validity abilities to access public accommodations. with documents like the Universal Declara- of every asserted religion, which I emphati- One of the plaintiffs, George Lane, had to tion of Human Rights. Such documents of- cally do not want, then it would be hard not crawl up courthouse steps to answer crimi- fer more protection to rights than to groups. to risk having every individual become a nal charges against him. After he refused The United States is increasingly becoming law unto herself. to do so a second time, he was held in con- a microcosm of the world with respect to The second critique is a narrower, more tempt of court. When he sued Tennessee for its diversity, making a movement from powerful, version of the first. It does not con- violating Title II, the state argued that Con- groups to rights seem organic and natural. tend that the movement from group-based gress did not have the power to enact that I suspect it is no accident that several cases equality to universal liberty is a mistake provision under Section 5 of the Fourteenth exemplifying the “new equal protection,” across the board. It instead observes that Amendment. such as Lawrence, look to international and with respect to certain groups, we should In stating that Congress had this power, comparative law. be careful about jumping too quickly to the Court did not rely on Congress’s power to A related advantage of the Court’s move a higher level of generality. In certain cir- protect the rights of individuals with disabil- toward liberty analysis is that it is less cumstances, such as the right to sexual in- ities. That move was effectively foreclosed by likely to essentialize identity. A new wave timacy, rising to a higher level of generality the 2001 Garrett case discussed above. The of progressive scholarship has criticized identifies a commonality among the rele- Court instead stated that Congress had the the tendency of civil rights to stereotype vant groups (such as straights and gays). In power to assure that all individuals retained the social identities it purports to protect. other situations, moving to that higher level the “right to access the courts.” It cited other Such “left critiques of the left” argue that of generality papers over the subordination cases outside the disability context where when the courts protect a trait as part of that the Court should be correcting. the Court had guaranteed this right, such a group’s identity, they strengthen the A classic instance of the latter situation as a case that held that the state had to pay misperceptions they meant to disestab- concerns the right to abortion. To speak of for the stenographic transcript needed to file lish. If the Court protects “speaking Span- the right to reproductive autonomy as if an appeal if an individual could not afford ish” as an essential part of an individual’s men and women were similarly situated it. Again, the Court pivoted away from the national origin, it has effectively held that with respect to the right is obtuse and retro- group-based equality claim toward the uni- speaking Spanish is an essential part of be- grade. Real biological differences between versal liberty claim. ing Latino or Latina. If the Court protects men and women with respect to pregnancy “speaking Spanish” as part of a “right to make the exercise of the right completely a normative assessment speak one’s first language,” no such essen- different for the two sexes. A jurisprudence Because I believe pluralism anxiety will tialism is entailed. that foregrounds liberty concerns over only increase in future years, I take the At the same time, the move toward lib- equality concerns dangerously conceals shift from equality to liberty to be largely erty in constitutional civil rights jurispru- the enduring forms of group-based subor- inevitable. Yet the Court has room at the dence can be criticized in at least three dination that the equal protection jurispru- margins to choose between the old and ways. The first objection argues that even if dence was meant to correct. My intuition is new models of equal protection. I there- increasing pluralism is inevitable, plural- that this will be particularly true in contexts fore move here from the descriptive to ism anxiety is not. At the individual level, where differences between the relevant the prescriptive. My conclusions here are we do not encourage individuals to capitu- groups are both enduring and differenti- tentative. While I generally approve of the late to their anxieties, but to overcome them. ating, as in the contexts of sex or disability.

WWW.LAW.NYU.EDU 69 For me, however, this is not an argument Issacharoff, Samuel for abandoning the move toward liberty al- Good Reads Principles of the Law together, but an argument that this move of Aggregate Litigation. will not be a panacea. As noted, even lib- St. Paul: American Law erty cases such as Roe or Casey underscored Institute, 2010. the equality concerns that were present in these decisions. I believe that if we keep Kingsbury, Benedict Roman Foundations those equality concerns steadily visible, of the Law of Nations: we can also address the concerns about Publications by the full- Editor. Workplace Privacy: Alberico Gentili and the sex-based subordination described above. time faculty from January 1, Proceedings of the New Justice of Empire. Oxford: A final objection to the move toward 2010 through December 31, York University 58th An- Oxford University Press, liberty is that it is a false rescue because it 2010. Works by multiple nual Conference on Labor. 2010 (with Benjamin substitutes one slippery slope for another. NYU School of Law faculty Austin, TX: Wolters Kluwer Straumann). Pluralism anxiety directs our attention to authors are shaded. Law & Business, 2010 (with the group-based slippery slope. A move- Jonathan Remy Nash). Kornhauser, Lewis ment from equality to liberty seems to books L’Analyse économique Ferejohn, John solve this problem, as it focuses on rights Chase, Oscar du droit. Paris: Michel A Republic of Statutes: Houdiard Editeur, 2010. Common Law, Civil that belong to all. However, an approach The New American that foregrounds liberty raises a different Law and the Future of Constitution. New Haven: Malman, Laurie Categories. Markham, question. It replaces the question of which Yale University Press, 2010 The Individual Tax Base: Ontario: LexisNexis, 2010 groups should be protected with the ques- (with William Eskridge). Cases, Problems and (with Janet Walker). tion of which rights should be protected. Policies in Federal Taxa- Some slopes, though, are more slip- War and State Building in tion. 2nd edition. St. Paul: Davis, Kevin pery than others. Here I intuit that the Medieval Japan. Palo Alto: Thomson Reuters/ Editor. Institutions and slope of rights is less slippery than the Stanford University Press, West, 2010. Economic Performance. 2010 (with Frances McCall slope of groups. I say this because I have Cheltenham: Edward Rosenbluth). Miller, Geoffrey seen lists of rights that could be deemed Elgar Publishing, 2010. fairly comprehensive. Martha Nussbaum, Economics of Ancient Law. Fox, Eleanor Cheltenham: Edward for instance, has created a list of 10 hu- Dorsen, Norman Fox and Crane’s Elgar Publishing, 2010. man “capabilities”—the kinds of activi- Comparative Constitu- Global Issues in Antitrust ties in which individuals need to engage to tionalism: Cases and and Competition Law. The Origins of the Neces- have a chance at human flourishing. These Materials. 2nd edition. St. Paul: West, 2010 sary and Proper Clause. rights seem relatively complete to me, as St. Paul: Thomson/West, (with Daniel Crane). New York: Cambridge 2010 (with Susanne Bear, do the rights embodied in the Universal University Press, 2010 Michel Rosenfeld, and Garland, David (with Gary Lawson, Declaration of Human Rights. I have never, Andras Sajo). however, seen a list of groups that felt even Editor. America’s Death Robert Natelson, and Penalty: Between Past and Guy Seidman). remotely exhaustive. Dreyfuss, Rochelle Present. New York: New First, Harry conclusion York University Press, 2010 Nagel, Thomas Zimmerman, Diane (with Randall McGowen Secular Philosophy This article has made a strong positive Working within the and Michael Meranze). and the Religious claim and a weak normative one. The Boundaries of Intellec- Temperament: Essays strong positive claim is that pluralism anxi- tual Property: Innovation Peculiar Institution: 2002–2008. New York: ety has driven the United States Supreme Policy for the Knowledge America’s Death Penalty Oxford University Court to shift from a group-based equality Society. New York: Oxford in an Age of Abolition. Press, 2010. jurisprudence toward a universal human University Press, 2010. Cambridge, MA: Belknap Press, 2010. rights jurisprudence. The weak normative Richards, David Estlund, Cynthia Fundamentalism in Amer- claim is that this shift is not just largely Regoverning the Gillette, Clayton ican Religion and Law. inevitable, but also probably desirable. Workplace: From Self- Local Government Law: New York: Cambridge Having the judiciary lead with claims that Regulation to Co-Regu- Cases and Materials. University Press, 2010. sound in universal human rights rather lation. New Haven: Yale 4th edition. New York: than group-based civil rights contributes to University Press, 2010. Foundation Press, 2010 Shaviro, Daniel that unified sense of “we, the people” even (with Lynn Baker). Getting It. New York: as it extends those rights to groups that Estreicher, Samuel iUniverse, 2010. have historically been denied them. This is Editor. Global Labor and Hershkoff, Helen the new equal protection. Employment Law for Miller, Arthur Stewart, Richard the Practicing Lawyer: Sexton, John Wyman, Katrina kenji yoshino, Chief Justice Earl Warren Proceedings of the New Civil Procedure: Cases Breaking the Logjam: York University 61st An- Professor of Constitutional Law, specializes and Materials—Compact Environmental Protec- nual Conference on Labor. in constitutional law, antidiscrimination law, 10th Edition for Shorter tion that Will Work. New Austin, TX: Wolters Klu- Courses. St. Paul: West, Haven: Yale University and law and literature. This excerpt is adapted wer Law & Business, 2010 2010 (with Jack Press, 2010 (with from an article of the same title published in (with Andrew Morriss). Friedenthal). David Schoenbrod). the January 2011 Harvard Law Review.

70 NYU SCHOOL OF LAW For me, however, this is not an argument Issacharoff, Samuel for abandoning the move toward liberty al- Good Reads Principles of the Law together, but an argument that this move of Aggregate Litigation. will not be a panacea. As noted, even lib- St. Paul: American Law erty cases such as Roe or Casey underscored Institute, 2010. the equality concerns that were present in these decisions. I believe that if we keep Kingsbury, Benedict Roman Foundations those equality concerns steadily visible, of the Law of Nations: we can also address the concerns about Publications by the full- Editor. Workplace Privacy: Alberico Gentili and the sex-based subordination described above. time faculty from January 1, Proceedings of the New Justice of Empire. Oxford: A final objection to the move toward 2010 through December 31, York University 58th An- Oxford University Press, liberty is that it is a false rescue because it 2010. Works by multiple nual Conference on Labor. 2010 (with Benjamin substitutes one slippery slope for another. NYU School of Law faculty Austin, TX: Wolters Kluwer Straumann). Pluralism anxiety directs our attention to authors are shaded. Law & Business, 2010 (with the group-based slippery slope. A move- Jonathan Remy Nash). Kornhauser, Lewis ment from equality to liberty seems to books L’Analyse économique Ferejohn, John solve this problem, as it focuses on rights Chase, Oscar du droit. Paris: Michel A Republic of Statutes: Houdiard Editeur, 2010. Common Law, Civil that belong to all. However, an approach The New American that foregrounds liberty raises a different Law and the Future of Constitution. New Haven: Malman, Laurie Categories. Markham, question. It replaces the question of which Yale University Press, 2010 The Individual Tax Base: Ontario: LexisNexis, 2010 groups should be protected with the ques- (with William Eskridge). Cases, Problems and (with Janet Walker). tion of which rights should be protected. Policies in Federal Taxa- Some slopes, though, are more slip- War and State Building in tion. 2nd edition. St. Paul: Davis, Kevin pery than others. Here I intuit that the Medieval Japan. Palo Alto: Thomson Reuters/ Editor. Institutions and slope of rights is less slippery than the Stanford University Press, West, 2010. Economic Performance. 2010 (with Frances McCall slope of groups. I say this because I have Cheltenham: Edward Rosenbluth). Miller, Geoffrey seen lists of rights that could be deemed Elgar Publishing, 2010. fairly comprehensive. Martha Nussbaum, Economics of Ancient Law. Fox, Eleanor Cheltenham: Edward for instance, has created a list of 10 hu- Dorsen, Norman Fox and Crane’s Elgar Publishing, 2010. man “capabilities”—the kinds of activi- Comparative Constitu- Global Issues in Antitrust ties in which individuals need to engage to tionalism: Cases and and Competition Law. The Origins of the Neces- have a chance at human flourishing. These Materials. 2nd edition. St. Paul: West, 2010 sary and Proper Clause. rights seem relatively complete to me, as St. Paul: Thomson/West, (with Daniel Crane). New York: Cambridge 2010 (with Susanne Bear, do the rights embodied in the Universal University Press, 2010 Michel Rosenfeld, and Garland, David (with Gary Lawson, Declaration of Human Rights. I have never, Andras Sajo). however, seen a list of groups that felt even Editor. America’s Death Robert Natelson, and Penalty: Between Past and Guy Seidman). remotely exhaustive. Dreyfuss, Rochelle Present. New York: New First, Harry conclusion York University Press, 2010 Nagel, Thomas Zimmerman, Diane (with Randall McGowen Secular Philosophy This article has made a strong positive Working within the and Michael Meranze). and the Religious claim and a weak normative one. The Boundaries of Intellec- Temperament: Essays strong positive claim is that pluralism anxi- tual Property: Innovation Peculiar Institution: 2002–2008. New York: ety has driven the United States Supreme Policy for the Knowledge America’s Death Penalty Oxford University Court to shift from a group-based equality Society. New York: Oxford in an Age of Abolition. Press, 2010. jurisprudence toward a universal human University Press, 2010. Cambridge, MA: Belknap Press, 2010. rights jurisprudence. The weak normative Richards, David Estlund, Cynthia Fundamentalism in Amer- claim is that this shift is not just largely Regoverning the Gillette, Clayton ican Religion and Law. inevitable, but also probably desirable. Workplace: From Self- Local Government Law: New York: Cambridge Having the judiciary lead with claims that Regulation to Co-Regu- Cases and Materials. University Press, 2010. sound in universal human rights rather lation. New Haven: Yale 4th edition. New York: than group-based civil rights contributes to University Press, 2010. Foundation Press, 2010 Shaviro, Daniel that unified sense of “we, the people” even (with Lynn Baker). Getting It. New York: as it extends those rights to groups that Estreicher, Samuel iUniverse, 2010. have historically been denied them. This is Editor. Global Labor and Hershkoff, Helen the new equal protection. Employment Law for Miller, Arthur Stewart, Richard the Practicing Lawyer: Sexton, John Wyman, Katrina kenji yoshino, Chief Justice Earl Warren Proceedings of the New Civil Procedure: Cases Breaking the Logjam: York University 61st An- Professor of Constitutional Law, specializes and Materials—Compact Environmental Protec- nual Conference on Labor. in constitutional law, antidiscrimination law, 10th Edition for Shorter tion that Will Work. New Austin, TX: Wolters Klu- Courses. St. Paul: West, Haven: Yale University and law and literature. This excerpt is adapted wer Law & Business, 2010 2010 (with Jack Press, 2010 (with from an article of the same title published in (with Andrew Morriss). Friedenthal). David Schoenbrod). the January 2011 Harvard Law Review.

70 NYU SCHOOL OF LAW faculty focus

Waldron, Jeremy Davis, Kevin Estreicher, Samuel Cases and Materials on Gillers, Stephen Torture, Terror, and “Does the Globalization Cases and Materials on U.S. Antitrust in Global “Choosing and Working: Trade-Offs: Philosophy of Anti-Corruption Law Employment Discrimina- Context, 2010 Supplement. Estate and Foundation for the White House. Help Developing Coun- tion and Employment Law, St. Paul: West Publishing, Counsel to Secure an New York: Oxford tries?” in International Fall 2010–2011 Case Supple- 2010. Artistic and Philanthropic University Press, 2010. Economic Law, Global- ment. St. Paul: West, 2010 Legacy,” in The Artist as ization and Developing (with Michael Harper). “The EC Microsoft Philanthropist, Volume chapters and Countries. Julio Faundez Case and Duty to Deal: II. Washington: Aspen supplements and Celine Tan, editors. Fox, Eleanor The Transatlantic Institute, 2010. Cheltenham: Edward “Antitrust and Institutions: Divide,” in Microsoft on Alvarez, José Elgar Publishing, 2010. Design and Change,” in Trial: Legal and Economic Regulation of Lawyers: “The Evolving BIT,” in A Comparative Analysis Analysis of a Transatlantic Statutes and Standards. Investment Treaty Arbitra- “Institutions and Eco- of Antitrust Law Regimes: Case. Luca Rubini, editor. Austin, TX: Aspen Law tion and International nomic Performance: An Designing Better Insti- Northampton, MA: & Business, 2010 (with Law. Ian Laird and Todd Introduction to the Litera- tutions for Deciding Edward Elgar, 2010. Andrew Perlman and Weiler, editors. Hunting- ture,” in Institutions and Antitrust Issues. Chicago: Roy Simon). ton, NY: Juris Net, 2010. Economic Performance. Loyola University Chi- Kevin Davis, editor. Chel- cago School of Law, 2010. “The Once and Future tenham: Edward Elgar Foreign Investment Publishing, 2010. Regime,” in Looking to the Future: Essays on In- Dreyfuss, Rochelle Prosecutors in the Boardroom: ternational Law in Honor “Enhancing Global Inno- of W. Michael Reisman. vation Policy: The Role of Using Criminal Law to Regulate Mahnoush Arsanjani, WIPO and Its Convention,” Jacob Katz Cogan, Robert in Interpreting the TRIPS Sloane, and Sieffried Corporate Conduct Agreement. Carlos Cor- Wiessner, editors. Boston: rea, editor. Cheltenham: edited by anthony s. barkow and Martinus Nijhoff Publish- Edward Elgar Publish- rachel e. barkow ers, 2010. ing, 2010 (with Graeme New York University Press, 2011 Dinwoodie). “The Rise of Emerging Thus we have entered a new era in Market Multinationals: “Patents and Human which prosecutors and firms have Legal Challenges Ahead,” Rights: Where is the Para- embraced … regulation by prosecutors. in Foreign Direct Invest- dox?” in Intellectual Prop- Prosecutors have increasingly reached ments from Emerging erty and Human Rights: A agreements with companies that allow the companies Markets: The Challenges Paradox. F. W. Grosheide, to avoid indictments so long as they meet the prosecu- Ahead. Karl Sauvant, editor. Northampton, tors’ regulatory terms. The agreements go by different Wolfgang Mascheck, and MA: Edward Elgar names. In the federal system, they consist of non-prosecution agreements and Geraldine McAllister, edi- Publishing, 2010. deferred prosecution agreements. In some states, they are known as settlement tors. New York: Palgrave agreements. When the agreements require companies simply to obey the law or pay Macmillan, 2010. “TRIPS and Essential for prior bad acts, they are not particularly noteworthy because they are incidental Medicines: Must One to the traditional exercise of executive power. Alston, Philip Size Fit All? Making the But in many of these agreements, prosecutors impose affirmative obligations “Killings by Law Enforce- WTO Responsive to the on companies to change personnel, revamp their business practices, and adopt new ment Officials: The Inter- Global Health Crisis,” models of corporate governance. These dictates are often sweeping and some prosecu- national Human Rights in Incentives for Global tors have imposed them on industries, not just isolated companies. They resemble, in Legal Framework,” in In- Public Health: Patent Law significant respects, the structural injunctions courts have imposed in areas like prison ternational Law, Conflict and Access to Essential and school reform and the regulations promulgated by administrative agencies. … and Development: The Medicines. Thomas Pogge, The practice of regulation by prosecutors thus raises a number of fundamental Emergence of a Holistic Matthew Rimmer, and questions. Perhaps most fundamentally, there is the question of how the government Approach in International Kim Rubenstein, editors. should seek to deter corporate misconduct and the role of the criminal law in that Affairs. Walter Kälin and New York: Cambridge endeavor. Relatedly, there is the question of prosecutorial competence and legitimacy Joseph Voyame, editors. University Press, 2010. to set regulatory terms. What is the comparative institutional competence of pros- Boston: Martinus Nijhoff ecutors to regulate as compared with traditional regulatory agencies like the SEC? Publishers, 2010 (with Epstein, Richard Are there differences in the relative competence of state versus federal prosecutors William Abresch). “The Imperfect Art of in pursuing this kind of regulation? What factors—accountability, expertise, indepen- Medical Malpractice dence, ethical concerns, efficiency or lack thereof—make prosecutorial participation Report of the Special Rap- Reform,” in Reforming in the regulation desirable or undesirable? How could these factors be adjusted to im- porteur on Extrajudicial, America’s Health Care prove the quality of that participation? What safeguards can promote good practices Summary or Arbitrary System: The Flawed Vision in prosecutorial involvement in corporate governance, and what measures can Executions Addendum: of ObamaCare. Scott Atlas, improve coordination and minimize collisions between prosecutors Study on Targeted Killings. editor. Palo Alto: Hoover and regulatory agencies? How much power should corporate monitors New York: United Institution Press, 2010. have, and by what process should they be appointed? These questions Nations, 2010. motivate the authors who have contributed to this volume. This book is a compilation of papers presented at the Center on the Administration of Criminal Law’s inaugural conference, “Regulation by Prosecutors.”

WWW.LAW.NYU.EDU 71 Gillette, Clayton “Global Justice, Poverty, Kumm, Mattias “Ruthlessness in Public “Two Conceptions of Municipal Debt Finance and the International “Best of Times and the Life,” in Ethics Across the Self-Determination,” in Law: Theory and Practice. Economic Order,” in The Worst of Times: Between Professions: A Reader for The Philosophy of Inter- 2010 Supplement. Boston: Philosophy of Internation- Constitutional Trium- Professional Ethics. Clancy national Law. Samantha Little, Brown, 2010 (with al Law. Samantha Besson phalism and Nostalgia,” in Matin, Robert Solomon, Besson and John Tasoulias, Robert Amdursky). and John Tasoulias, The Twilight of Constitu- and Wayne Vaught, editors. New York: Oxford editors. New York: Oxford tionalism? Petra Dobner editors. New York: Oxford University Press, 2010. Hershkoff, Helen University Press, 2010 and Martin Loughlin, University Press, 2010. Miller, Arthur (with Ruti Teitel). editors. New York: Oxford Yoshino, Kenji Sexton, John University Press, 2010. Narula, Smita “Of Stranger Spaces,” in “Man of Peace: Rehear- Civil Procedure Supple- “Law and Hindu Nation- Law and the Stranger. ing the Case against Leo “Internationale ment for Use with All alist Movements,” in Austin Sarat, Lawrence Strauss,” in The Legacy of Handelsgesellschaft, Pleading and Procedure Hinduism and Law: An Douglas, and Martha Leo Strauss. Tony Burns Nold and the New Hu- Casebooks. 2010–2011 Introduction. Timothy Merrill Umphrey, editors. and James Connelly, man Rights Paradigm,” in Supplement. St. Paul: Lubin, Donald Davis, and Stanford, CA: Stanford editors. Exeter: Imprint The Past and Future of EU West, 2010 (with Jack Javanth Krishnan, editors. University Press, 2010. Academic Press, 2010. Law: The Classics of EU Friedenthal). New York: Cambridge Law Revisited on the 50th University Press, 2010. articles Issacharoff, Samuel Anniversary of the Rome Teacher’s Manual Adler, Barry “Aggregating Private Treaty. Loïc Azoulai and Revesz, Richard to Accompany Civil “A Reassessment of Bank- Claims,” and “Facts, In- Miguel Poiares Maduro, Environmental Law and Procedure: Cases and ruptcy Reorganization vestigation, and the Role editors. Portland, OR: Policy: Statutory and Materials—Compact after Chrysler and Gen- of Discovery,” in Litiga- Hart Publishing, 2010. Regulatory Supplement. 10th Edition for Shorter eral Motors,” 18 American tion in England and Ger- New York: Foundation Courses. St. Paul: Bankruptcy Institute Law many: Legal Professional Miller, Geoffrey Press, 2010. West, 2010 (with Review 305 (2010). Jack Friedenthal). Services, Key Features and “The Corporate Law Back- Funding. Peter Gottwald, ground of the Necessary Waldron, Jeremy Arlen, Jennifer editor. Bielefeld: Giesek- and Proper Clause,” in “The Image of God: Rights, Hertz, Randy “Contracting Over Liabil- ing-Verlag, 2010. The Origins of the Neces- Reason, and Order,” in “The Legal Aid Society,” ity: Medical Malpractice sary and Proper Clause. Christianity and Human in Thirteenth Annual and the Cost of Choice,” “Democracy and Gary Lawson, editor. Rights: An Introduction. Children’s Law Institute. 158 University of Penn- Electoral Processes,” in New York: Cambridge John Witte and Frank New York: Practicing sylvania Law Review 957 Research Handbook on University Press, 2010. Alexander, editors. New Law Institute, 2010. (2010). Public Choice and Public York: Cambridge Univer- Law. Daniel Farber and Hills, Roderick Jr. Miller, Geoffrey sity Press, 2010. Anne Joseph O’Connell, Bar-Gill, Oren “Federalism and Public Rosenfeld, Gerald editors. Northampton, “Consent and Exchange,” Choice,” in Research “Intellectual Hazard and “Legal Pluralism and MA: Edward Elgar, 2010 39 Journal of Legal Studies Handbook on Public the Design of Financial the Contrast between (with Laura Miller). 375 (2010) (with Lucian Stability Regulation,” in Hart’s Jurisprudence Choice and Public Law. Bebchuk). Law and Economics of and Fuller’s,” in The Daniel Farber and Anne “Party Funding and Global Financial Institu- Hart-Fuller Debate in the Joseph O’Connell, edi- Campaign Finance Law “The Prisoners’ (Plea tions. Peter Nobel, Katrin Twenty-First Century. Pe- tors. Northampton, MA: in the United States,” in Bargain) Dilemma— Krehan and Anne- ter Cane, editor. Portland, Edward Elgar, 2010. Supervising Electoral Most Defendants Could Cathrine Tanner, editors. OR: Hart Publishing, 2010. Processes. Strasbourg: Avoid Both Plea Bargain- Howse, Robert Zurich: Schulthess, 2010. European Commission “Questions about the Rea- ing and Trial If They “Do the World Trade for Democracy through sonable Accommodation Could Coordinate,” 33(1) Organization Disciplines Murphy, Liam Law, Council of Europe of Minorities,” in Shari’a Regulation 42 (2010) on Domestic Subsidies “International Responsi- Publishing, 2010. in the West. Rex Ahar and (with Omri Ben-Shahar). Make Sense? The Case bility,” in The Philosophy Nicholas Aroney, editors. for Legalizing Some of International Law. Sa- Kingsbury, Benedict New York: Oxford Univer- Bar-Gill, Oren Subsidies,” in Law and mantha Besson and John “State of Nature versus sity Press, 2010. Davis, Kevin Economics of Contingent Tasoulias, editors. New Commercial Sociability as “Empty Promises,” 84 Protection in Interna- York: Oxford University the Basis of International “Treating Like Cases Southern California tional Trade. Kyle Bagwell, Press, 2010. Law: Reflections on the Alike in the World: The Law Review 1 (2010). George Bermann, and Roman Foundations and Theoretical Basis of the Nagel, Thomas Petros Mavroidis, editors. Current Interpretations of Demand for Legal Unity,” “Mortal Questions,” in New York: Cambridge the International Political in Highest Courts and Bar-Gill, Oren University Press, 2010. Ethics: The Essential and Legal Thought of Gro- Globalisation. Sam Muller Ferrari, Franco Writings. Gordon Daniel tius, Hobbes and Pufen- and Sidney Richards, edi- “Informing Consumers “The End of the Globaliza- Marino, editor. New York: dorf,” in The Philosophy tors. The Hague: Hague about Themselves,” 3 tion Debate: Continued,” Modern Library, 2010. of International Law. Academic Press, 2010. in International Economic Erasmus Law Review 93 Samantha Besson and Law and National Au- (2010). John Tasoulias, editors. tonomy. Meredith Lewis New York: Oxford Uni- and Susy Frankel, editors. versity Press, 2010 (with New York: Cambridge Benjamin Straumann). University Press, 2010.

72 NYU SCHOOL OF LAW faculty focus

Recommended reading Back issues of The Law School are now online at blogs.law.nyu.edu/magazine.

Barkow, Rachel “Professionals or Politi- Davis, Kevin “The Federal Circuit as an “The Disintegration of “Categorizing Graham,” cians: The Uncertain “Legal Universalism: Institution: What Ought Intellectual Property? 23 Federal Sentencing Empirical Case for an Persistent Objections,” 60 We to Expect,” 43 Loyola A Classical Liberal Re- Reporter 49 (2010). Elected Rather than University of Toronto Law Law Review 827 (2010). sponse to a Premature Appointed Judiciary,” 26 Journal 537 (2010). Obituary,” 62 Stanford “Insulating Agencies: Journal of Law, Economics, “What the Federal Circuit Law Review 455 (2010). Using Institutional & Organization 290 (2010) “Peer-to-Peer Financing Can Learn from the Design to Limit Agency (with Mitu Gulati and for Development: Regu- Supreme Court—and “Executive Power in Capture,” 89 Texas Law Eric Posner). lating the Intermediaries,” Vice Versa,” 59 American Political and Corporate Review 15 (2010). 42 New York University University Law Review Contexts,” 12 University “Punitive Damages in Journal of International 787 (2010). of Pennsylvania Journal “Organizational Guide- Securities Arbitration: Law and Politics 1079 of Constitutional Law lines for the Prosecutor’s An Empirical Study,” (2010) (with Anna Dworkin, Ronald 277 (2010). Office,” 31 Cardozo Law 39 Journal of Legal Gelpern). “Justice for the Hedgehogs: Review 2089 (2010). Studies 497 (2010) (with Keynote Address,” 90 “How to Undermine Tax Theodore Eisenberg). “Penalty Clauses through Boston University Law Increment Financing: The Beebe, Barton the Lens of Unconscio- Review 469 (2010). Lessons of City of Chicago “Intellectual Property Law Choi, Stephen nability Doctrine: Birch v. ProLogis,” 77 University and the Sumptuary Code,” Kahan, Marcel v. Union of Taxation “Justice for the Hedgehogs: of Chicago Law Review 123 Harvard Law Review “The Power of Proxy Employees, Local 70030,” Response,” 90 Boston 121 (2010). 809 (2010). Advisors: Myth or 55 McGill Law Journal University Law Review “NRA v. City of Chicago: Reality?” 59 Emory Law 151 (2010). 1059 (2010). Does the Second Amend- Been, Vicki Journal 869 (2010) ment Bind Frank Easter- “Community Benefits (with Jill Fisch). “The Privatization of Epstein, Richard Agreements: A New Lo- Development Assistance: “Carbon Dioxide: Our brook?” 77 University of Symposium Overview,” 42 Newest Pollutant,” 42 Chicago Law Review cal Government Tool or Cohen, Jerome New York University Jour- Suffolk Law Review 797 997 (2010). Another Variation on the “Report of the Mission to nal of International Law (2010). Exactions Theme?” 77 China of the Association and Politics 1209 (with “Obama’s Constitution: University of Chicago of the Bar of the City of Sarah Dadush). “The Classical Liberal The Passive Virtues Law Review 5 (2010). New York, December 6 Alternative to Progressive Writ Large,” 26 Constitu- to 17, 2009,” 48 Columbia Davis, Peggy and Conservative Con- tional Commentary 183 Blank, Joshua Journal of Transnational “Desegregating Legal stitutionalism: Review of (2009–2010). “When Is Tax Enforcement Law 519 (2010) (with Mark Education,” 26 Georgia The Constitution in 2020” Publicized?” 30 Virginia Shulman, Robert Hornick, State University Law (Jack Balkin and Reva Sie- “A Speech on the Struc- Tax Review 1 (2010) John Walker, Sarah Fitts, Review 1271 (2010). gel, editors), 77 University tural Constitution and (with Daniel Levin). Margaret K. Lewis, R. of Chicago Law Review the Stimulus Program,” 4 Scott Greathead, Sidney Charleston Law Review Choi, Stephen Dreyfuss, Rochelle 887 (2010). H. Stein, and Elisabeth 395 (2010). “Attorneys as Arbitrators,” Wickeri). “Does IP Need IP? Accom- modating Intellectual “The Contextualization of 39 Journal of Legal Studies “Takings Law Made Hard,” Production Outside the Tort Law,” 88 Texas Law 109 (2010) (with Jill Fisch Regulation (Winter Intellectual Property Review 105 (2010). and A. C. Pritchard). 2009–2010). Paradigm,” 31 Cardozo Law Review 1437 (2010).

WWW.LAW.NYU.EDU 73 “Toward a General Theory Fox, Eleanor Hills, Roderick Jr. Jacobs, James McKenzie, Troy of Tort Law: Strict Liability “Antitrust and Institutions: “A Hidden Gift to Manu- “The Jurisprudence of Po- “Judicial Independence, in Context,” 4 Journal of Design and Change,” 41 facturing—Cities Should lice Intelligence Files and Autonomy, and the Tort Law 6 (2010). Loyola University Chicago Stop Zoning Land Exclu- Arrest,” 22 National Law Bankruptcy Courts,” 62 Law Journal 473 (2010). sively for Industrial Use,” School of India Review 135 Stanford Law Review “What Tort Theory Tells Us 33 Regulation 30 (2010) (2010). 747 (2010). about Federal Preemp- “‘Antitrust Welfare’— (with David Schleicher). tion: The Tragic Saga of The Brodley Synthesis,” “Remedying Defamation Miller, Arthur Wyeth v. Levine,” 65 An- 90 Boston University “The Steep Costs of Using by Law Enforcement: “From Conley to Twombly nual Survey of American Law Review 1375 (2010). Noncumulative Zoning Fallout from the Wen Ho to Iqbal: A Double Play on Law 485 (2010). to Preserve Land for Lee, Steven Hatfill and the Federal Rules of Civil Friedman, Barry Urban Manufacturing,” Brandon Mayfield Settle- Procedure,” 60 Duke Law “Why I Will Never Be a “The Wages of Stealth 77 University of Chicago ments,” 46 Criminal Law Journal 1 (2010). Keynesian,” 33 Harvard Overruling (with Particu- Law Review 249 (2010) Bulletin 223 (2010) (with Journal of Law & Public lar Attention to Miranda v. (with David Schleicher). Daniel Curtin). Miller, Geoffrey Policy 387 (2010). Arizona),” 99 Georgetown “Attorneys’ Fees and Law Journal 1 (2010). Holmes, Stephen Kahan, Marcel Expenses in Class Action Estreicher, Samuel “Does Hobbes Have a “Embattled CEOs,” 88 Tex- Settlements: 1993–2008,” 7 “Opting for a Legislative “The Will of the People and Concept of the Enemy?” as Law Review 987 (2010) Journal of Empirical Legal Alternative to the Fourth the Process of Constitu- 13 Critical Review of (with Edward Rock). Studies 248 (2010) (with Amendment Exclusion- tional Change,” 78 George International Social and Theodore Eisenberg). ary Rule,” 78 UMKC Law Washington Law Review Political Philosophy “When the Government Review 949 (2010) (with 1232 (2010). 371 (2010). Is the Controlling Share- “Bargains Bicoastal: New Daniel Weick). holder: Implications for Light on Contract Theory,” Galowitz, Paula Howse, Robert Delaware,” 35 Delaware 31 Cardozo Law Review “A Post-Formation Right “How Bioethics Can “Beyond Compliance: Journal of Corporate Law 1475 (2010). of Withdrawal from Enrich Medical-Legal Rethinking Why Interna- 409 (2010). Customary International Collaborations,” 38 Jour- tional Law Really Matters,” “The Common Law Ori- Law?: Some Cautionary nal of Law, Medicine & 1 Global Policy 127 (2010) Kingsbury, Benedict gins of the Necessary and Notes,” 21 Duke Journal of Ethics 847 (2010) (with Dr. (with Ruti Teitel). “The State of Nature and Proper Clause,” 79 George Comparative and Interna- Stewart Fleishman, Amy Commercial Sociability in Washington University tional Law 57 (2010). Campbell, Jay Sicklick, “Beyond the Countertrade Early International Legal Law Review 1 (2010). and Randye Retkin). Taboo: Why the WTO Thought,” 31 Grotiana 22 “Trade Unionism under Should Take Another (2010) (with Benjamin “The Corporate Law Back- Globalization: The Garland, David Look at Barter and Coun- Straumann). ground of the Necessary Demise of Voluntarism?” “Le Processus de civiliza- tertrade,” 60 University and Proper Clause,” 79 54 Saint Louis University tion et la peine capitale of Toronto Law Journal Kornhauser, Lewis George Washington Law Law Journal 415 (2010). aux États-Unis,” 106 289 (2010). “Only a Dictatorship Is Review 1 (2010). Vingtième siècle 193 (2010). Efficient,” 70 Games and Ferejohn, John “Delphic Dictum: How Economic Behavior 261 “A Modest Proposal for Book Review: “The Lure Gillette, Clayton Has the ICJ Contributed (2010) (with Jean-Pierre Fixing Delaware’s Broken of Large Numbers. A Con- “Who Should Authorize to the Global Rule of Law Benoit). Duty of Care,” 2010 stitution of Many Minds a Commuter Tax?” 77 by Its Ruling on Kosovo?” Columbia Business Law by Cass Sunstein and Law University of Chicago 11 German Law Journal Kumm, Mattias Review 319 (2010). and the Limits of Reason Law Review 223 (2010). 841 (2010) (with Ruti “The Idea of Socratic by Adrian Vermeule,” 123 Teitel). Contestation and the “Narrative and Truth in Harvard Law Review 1969 Judicial Opinions: Cor- Golove, David Right to Justification: (2010). “US-Stainless Steel porate Charitable Giving Hulsebosch, Daniel The Point of Rights-Based (Mexico),” 9 World Trade Cases,” 2009 Michigan “A Civilized Nation: Proportionality Review,” Ferrari, Franco Review 117 (2010) (with State Law Review 831 The Early American 4 Law & Ethics of Human Gillette, Clayton Meredith Crowley). (2010). Constitution, the Law of Rights 140 (2010). “Warranties and ‘Lemons’ Nations, and the Pursuit Issacharoff, Samuel “Preliminary Judgments,” under CISG Article 35(2) of International Rec- Levinson, Daryl “Judging in the Time of 2010 University of Illinois (a),” 10 Internationales ognition,” 85 New York “Parchment and Politics: the Extraordinary,” 47 Law Review 165 (2010). Handelsrecht 2 (2010). University Law Review The Positive Puzzle of Houston Law Review 932 (2010). Constitutional Commit- “Process as Currency First, Harry 533 (2010). ment,” 124 Harvard Law with the Courts: Judicial “Branch Office of the Hershkoff, Helen Review 657 (2010). Scrutiny of Directors’ De- Prosecutor: The New Role “On Political Corruption,” “‘Just Words’: Common cisions,” 1 International of the Corporation in 124 Harvard Law Review Law and the Enforcement Lowenfeld, Andreas Journal of Corporate Gov- Business Crime Prosecu- 118 (2010). of State Constitutional “The International Mon- ernance 337 (2010) (with tions,” 89 North Carolina Positive Rights,” 62 “Pragmatic Originalism?” etary System: A Look Back Jonathan Macey). Law Review 23 (2010). Stanford Law Review 4 New York University Over Seven Decades,” 13 1521 (2010). Journal of Law & Liberty Journal of International 517 (2010). Economic Law 575 (2010).

74 NYU SCHOOL OF LAW faculty focus

“The Quasi-Class Action Neuborne, Burt Sharkey, Catherine “Trespass Torts and Strandburg, Katherine Method of Managing “The October 2008 Term: “Against Freewheeling, Self-Help for an Elec- “Constructing Commons Multi-District Litigations: First Amendment and Extratextual Obstacle Pre- tronic Age,” 44 Tulsa in the Cultural Environ- Problems and a Proposal,” Then Some,” 26 Touro emption: Is Justice Clar- Law Review 677 (2009) ment,” 95 Cornell Law 63 Vanderbilt Law Review Law Review 465 (2010). ence Thomas the Lone (published 2010). Review 657 (2010) (with 107 (2010) (with Charles Principled Federalist?” Michael Madison and Silver). Pildes, Richard 5 New York University Shaviro, Daniel Brett Frischmann). “Free Enterprise Fund, Journal of Law & Liberty “Rethinking Foreign Tax “A Simple Theory of Boundary-Enforcing De- 564 (2010). Creditability,” 63 National Waldron, Jeremy Takeover Regulation in cisions, and the Unitary Tax Journal 709 (2010). “Dignity and Defamation: the United States and Executive Branch Theory “The Exxon Valdez Litiga- The Visibility of Hate. Europe,” 55 Rivista Delle of Government Adminis- tion Marathon: A Window “Taxation and the Finan- 2009 Oliver Wendell Società 680 (2010). tration,” 6 Duke Journal on Punitive Damages,” 7 cial Sector,” 63 National Holmes Lectures,” 123 of Constitutional Law & University of St. Thomas Tax Journal 781 (2010) Harvard Law Review Miller, Geoffrey Public Policy 1 (2010). Law Journal 25 (2010). (with Douglas Shackel- 1596 (2010). Rosenfeld, Gerald ford and Joel Slemrod). “Intellectual Hazard: Rascoff, Samuel “Federal Incursions and “A Majority in the Lifeboat,” How Conceptual Biases “Domesticating Intel- State Defiance: Punitive Stewart, Richard 90 Boston University Law in Complex Organiza- ligence,” 83 Southern Damages in the Wake of “Solving the U.S. Nuclear Review 1043 (2010). tions Contributed to the California Law Review Philip Morris v. Williams,” Waste Dilemma,” 40 Crisis of 2008,” 33 Har- 575 (2010). 46 Willamette Law Review Environmental News & vard Journal of Law and 449 (2010). Analysis 10783 (2010). Public Policy 807 (2010). “The Law of Homegrown (Counter)Terrorism,” Murphy, Erin 88 Texas Law Review “Common Errors and 1715 (2010). The Wars of the Romans: Fallacies in Forensic DNA Statistics: An Am- Revesz, Richard icus Brief in McDaniel v. “Cost-Benefit Analysis in A Critical Edition and Translation Brown,” 46 Criminal Law U.S. Environmental Law,” Bulletin 709 (2010) (with 117 Estudios Públicos 87 of William Thompson). (2010). edited by benedict kingsbury and “Databases, Doctrine & Rodríguez, Cristina benjamin straumann Constitutional Criminal “Constraint through Oxford University Press, 2011 Procedure,” 37 Fordham Delegation: The Case How can questions concerning Urban Law Journal of Executive Control imperial expansion be addressed 803 (2010). over Immigration Policy,” from the perspective of justice? 59 Duke Law Journal To what extent does law provide a “Relative Doubt: Familial 1787 (2010). satisfactory way of making assessments of the Searches of DNA Data- justice or rectitude of imperial wars, imperial bases,” 109 Michigan Law “Immigration and the conquests, and governance within a far-flung Review 291 (2010). Civil Rights Agenda,” 6 empire? How does the law concerning relations Stanford Journal of Civil within and between empires overlap or differ from the law concerning interstate rela- “What ‘Strengthening Rights & Civil Liberties tions? To what extent are specific practices and legal principles of the Roman empire Forensic Science’ Today 125 (2010). Means for Tomorrow: instantiations of arguments about universal moral principles of justice in imperial and DNA Exceptionalism and “Noncitizen Voting and interstate relations applicable also to other contexts? the 2009 NAS Report,” 9 the Extraconstitutional In The Wars of the Romans, first published in its complete form by Wilhelm Anton Law, Probability & Risk Construction of the Polity,” in Hanau-am-Main in 1599, the Italian jurist Alberico Gentili explicitly deals with the 7 (2010). 8 International Journal military expansion of the Roman empire from the perspectives of law and justice…. of Constitutional Law The Wars of the Romans can thus be seen as an attempt to justify a legal order, intro- Nelson, William 30 (2010). duced by Roman imperialism into a situation in which only an under-specified body of “The Lawfinding Power of natural law applied. Rather than lending support to the empires of Gentili’s own day, The Colonial American Juries,” Schulhofer, Stephen Wars of the Romans focuses on the Roman empire of classical antiquity, its justification, and its legal legacy. The rules and norms developed by the Romans were apt, in Gentili’s 71 Ohio State Law Journal “Legitimacy and Deter- analysis, to guide and justify some imperial conduct, but also to constrain early modern 1003 (2010). rence Effects in Coun- empires and emerging sovereign states. Indeed, Gentili is critical of the Spanish and terterrorism Policing: A Ottoman empires of the late sixteenth century, and far from enthusiastic about the Holy “Politicizing the Courts Study of Muslim Ameri- Roman Empire. While he does not deny a certain continuity between the latter and the and Undermining the cans,” 44 Law & Society ancient Roman empire, his argument in The Wars of the Romans clearly does not Law: A Legal History of Review 365 (2010) (with rest on an analogy between the two. Rather, the Holy Roman Empire of Colonial North Carolina, Tom Tyler and Aziz Huq). 1660–1775,” 88 North his own day appears in his thought as but one polity among many, all of Carolina Law Review which are susceptible to being judged according to the principles of law 2133 (2010). established in the ancient and enduring Roman legal order. This excerpt comes from the introduction to this edition of Alberico Gentili’s 16th-century work, which was translated into English by David Lupher.

WWW.LAW.NYU.EDU 75 “Torture, Suicide and miscellaneous “Third Circuit Limits Book Review. “My Future Book Review. “Who Is Determination,” 55 Dworkin, Ronald Ability to Modify Retiree Me. Surviving Death by Happy and When? Ex- American Journal of “The Decision That Threat- Benefits During Bank- Mark Johnston,” Times ploring Happiness: From Jurisprudence 1 (2010). ens Democracy,” 57 (8) ruptcy,” New York Law Literary Supplement Aristotle to Brain Science, New York Review of Books Journal (Sept. 7, 2010) (June 4, 2010). by Sissela Bok; The Poli- Weiler, Joseph (May 13, 2010). (with Corinne Ball). tics of Happiness: What “Il crocefisso a Strasburgo: Book Review. “What Government Can Learn una decisione ‘imbaraz- “The ‘Devastating’ Issacharoff, Samuel Peter Singer Wants of You. from the New Research on zante,’” 30 Quaderni Decision,” 57 (7) New “Il caso Citizens United v. The Life You Can Save: Well-Being, by Derek Bok,” Costituzionali 148 (2010). York Review of Books Federal Election Com- Acting Now to End World 57 (20) New York Review (Feb. 25, 2010). mission: il finanziamento Poverty, by Peter Singer of Books (Dec. 23, 2010). “The Trial of Jesus,” 204 dei partiti nel diritto and Peter Singer Under First Things 39 (2010). “The Temptation of Americano,” 39 Quaderni Fire: The Moral Iconoclast Weiler, Joseph Elena Kagan,” 57 (13) Costituzionali 392 (2010). Faces His Critics, by Jef- Book Review. “Jesus on Woo, Sarah New York Review of frey A. Schaler, editor,” 57 Death Row, by Mark Os- “Simultaneous Distress of Books (Aug. 19, 2010). Nagel, Thomas (5) New York Review of ler,” 52 Journal of Church Residential Developers Book Review. “The Moral Books (March 25, 2010). and State 573 (2010). and Their Secured Lend- Epstein, Richard Landscape: How Science ers: An Analysis of Bank- “The Spurious Consti- Can Determine Human “Editorial,” 21 European ruptcy & Bank Regulation,” tutional Distinction Values, by Sam Harris,” Journal of International 15 Fordham Journal of Between Takings and The New Republic (Nov. Law 501 (2010). Corporate and Financial Regulation,” 11 Engage 11, 2010). Law 617 (2010). (2010).

Wyman, Katrina Estreicher, Samuel “Rethinking the ESA to “Employee Representa- Reflect Human Dominion tion in a World of Global A Thousand Times More Fair: over Nature,” 40 Environ- Competition,” 27 GPSolo mental News & Analysis 40 (2010). 10803 (2010). What Shakespeare’s Plays “Is the ‘Manifest Disregard’ Yoshino, Kenji Standard Still Alive?” New Teach Us About Justice “The Choice of the Four York Law Journal (March Fathers: Henry IV, Falstaff, 17, 2010) (with Steven by kenji yoshino the Lord Chief Justice, Bennett). HarperCollins Publishers, 2011 and the King of France We live in a time when human factfinding in the Henriad,” 22 Yale “Preclusive Effects of has triumphed decisively over supernatu- Journal of Law and the Arbitration,” New York ral factfinding: we trust judges or juries to Humanities 417 (2010). Law Journal (Sept. 15, 2010) (with Steven find the facts rather than requiring parties “The Gay Tipping Point,” Bennett). to carry hot coals or to battle their accusers. I therefore 57 UCLA Law Review ask whether a tragedy like Othello’s could happen in our 1537 (2010). “Preemption of California’s time. Of course it can and does. Standard of Review of To show this, I compare Othello and the 1995 trial of “On Empathy in Judgment,” Class Arbitration Waivers,” O. J. Simpson. The analogy has little to do with race. It relies instead on the ability 57 Cleveland State Law New York Law Journal of ocular proof—hard physical evidence—to overwhelm all other forms of evidence. Review 683 (2010). (June 25, 2010) (with In the Simpson trial, the distracting object was not Desdemona’s white handkerchief Steven Bennett). “spotted with strawberries,” but a black glove spotted with blood. By exonerating Zimmerman, Diane Simpson, the jury showed that even collective human factfinding is vulnerable to “The Statute of Anne and “Second Circuit Rejects what I will call ocular proof bias. Its Progeny: Variations Corporate Liability under This vulnerability raises the question of whether the jury is really as much of an without a Theme,” 47 Alien Tort Statute,” New antidote to such ocular proof bias as it seems to be. Recently, much has been made Houston Law Review York Law Journal (Nov. 5, of the putative “CSI [Crime Scene Investigation] effect,” in which forensic science televi- 965 (2010). 2010) (with Meir Feder). sion shows like CSI ostensibly cause juries to fixate obsessively on physical evidence. Although both the cause and extent of the CSI effect have been questioned, juries do “Supreme Court Hears seem at least as susceptible as ever to ocular proof bias. Argument on Class My point is not that we should abandon the jury system, but that we should un- Arbitration Waivers,” derstand better why we continue to use it. As legal historian George Fisher points out, New York Law Journal we use the jury not because it is an infallible factfinder, but because it gives us closure (Dec. 22, 2010) (with in a world in which infallible factfinders do not exist. The jury permits us to evade the Steven Bennett). inherent difficulties of factfinding, because, like God, the jury need not respond to questions or justify its results. But if so, we have not traveled as far from the super- “Supreme Court: No natural proofs as we may think. Othello helps us grapple with the question of Class Arbitration Where whether human factfinding is a triumphal step away from supernatural Agreement Is Silent,” New factfinding, or simply a different way of letting an inscrutable but defini- York Law Journal (May 18, tive authority help us negotiate a world that is, and will remain, largely 2010) (with Elena Voss). opaque to human apprehension.

76 NYU SCHOOL OF LAW Student Spotlight

A degree with a side of fries. Eight thousand violet- robed graduates converged on Yankee Stadium to attend New York University’s 179th Commencement Exercises on May 18. President Bill Clinton gave a sweeping address analyzing global and national issues, and the University bestowed its Gallatin Medal on Kenneth Feinberg ’70.

WWW.LAW.NYU.EDU 77 Stein ’11 Heinzerling

Gray Pildes

Stewart Katzen Recognition for the Ruler of Rules Annual Survey dedicates a volume to public intellectual and prolific scholar Cass Sunstein.

he author or co-author of the ceremony. Indeed, when President January, took administrative law with hundreds of articles and more than Barack Obama tapped Sunstein to run Sunstein at the University of Chicago Law two dozen books, Cass Sunstein is OIRA, NYU Law Dean Richard Revesz and School. “He was my favorite teacher, not Tthe most widely cited legal scholar Michael Livermore ’06, executive director just in law school, but anywhere,” Heinzer- in the United States. His breadth of study of the Institute for Policy Integrity at NYU ling said. “He is the reason I do what I do.” includes but is not limited to administra- Law, co-wrote a Forbes.com commentary Others offering tributes included Sally tive law and policy, constitutional law and lauding the choice. OIRA, which reviews Katzen, a visiting professor at NYU Law theory, behavioral economics and law, and federal regulatory rules to decide whether and OIRA administrator from 1993 to 1998; environmental law. After a long career as the benefits are greater than the costs to C. Boyden Gray, an adjunct professor and a University of Chicago Law School profes- implement them, “is a hugely significant of- former White House counsel, who met Sun- sor, he joined the Harvard Law School fac- fice that many people in the country don’t stein when he worked in the Department ulty in 2008. Two years later, Sunstein took know much about,” Revesz observed at the of Justice’s Office of Legal Counsel; and a leave of absence to become the admin- dedication. “I don’t think anyone has been Sudler Family Professor of Constitutional istrator of the Office of Information and as prepared for this job as Cass.” Law Richard Pildes, who co-authored an Regulatory Affairs (OIRA), part of the Office The dedication ceremony featured trib- article with Sunstein about cost-benefit of Management and Budget. Thrust into the utes to Sunstein from people whose lives analysis and the regulatory state. media spotlight, he was soon a favorite tar- have intersected his in a variety of ways, In his own remarks, Sunstein outlined get of conservative talk-show hosts. including one of his former law professors some changes he has overseen at OIRA. In April, the Annual Survey of American and a former law student. Richard Stewart, Then he pulled back to address a broader Law held a ceremony to mark the dedication University Professor and John Edward Sex- theme: the value of work done by people of its 68th volume to Sunstein. He joins ear- ton Professor of Law, who taught Sunstein who primarily study and advance ideas lier honorees such as NYU Law professors at Harvard Law School, noted that Sunstein about the law versus that done by those Arthur Miller (2010), Ronald Dworkin (2006), is not only “a prominent public intellec- who practice it. Both, of course, matter, he and NYU President John Sexton (2003), and tual who can do theory with the best of the said, but as a deeply curious scholar ad- Supreme Court justices Stephen Breyer theorists” but also someone who is “deeply dressing an audience of faculty and stu- (2007), Antonin Scalia (2005), and Thurgood serious about law and institutions…for dents, he wanted to emphasize the value Marshall (1983), for whom Sunstein clerked their role in contributing to human flour- of the former. “What you do…really matin 1979–80. Sunstein’s “contributions to the ishing.” And Lisa Heinzerling, who was a ters,” Sunstein said. “People will pick it up, development and understanding of Ameri- senior official at the Environmental Pro- people will listen to it, and it will feed into a can law are second to none,” said Annual tection Agency before returning to teach kind of river that is an intellectual tradition Survey Editor-in-Chief Darryl Stein ’11 at at Georgetown University Law Center in that matters and affects lives.”

78 NYU SCHOOL OF LAW student spotlight A Tribute to the Lion of the Senate onoring the late senator small achievement given the more than general counsel to the Senate Judiciary Edward Kennedy and his last- 15,000 Senate votes Kennedy cast. Committee. Appearing by webcam being influence, the Journal of Breyer, who met with NYU Law stu- cause his flight was grounded, Feinberg H Legislation and Public Policy held dents earlier in the day, recalled Kenne- characterized Kennedy as one of very few a symposium and dedicated a special issue dy’s vigor. Kennedy had appointed Breyer senators in modern times with “the politi- to his legislative legacy. The February event special counsel to the Judiciary Commit- cal and institutional credibility to legislate” included warm remembrances by Justice tee; later, Breyer became and achieve true partner- Stephen Breyer, Caroline Kennedy, and chief counsel. “We used to ship with members of the Kenneth Feinberg opposing party. The ’70, as well as others late senator worked who knew him for tirelessly and went to decades. great lengths to foster The hallmark of personal relationships Ted Kennedy’s 47- with everyone in his year Senate career orbit, Feinberg said. was his inclusive- “He was constantly ness and ability to working from early in reach across the the morning till late aisle to find common at night, seven days ground. His niece a week, in order to Caroline painted a achieve the endgame. portrait of how his He was driven by his family and child- name, by the history hood influenced this of his family, by the characteristic. As reputation he was de- the youngest of nine termined to vindicate.” children, Kennedy One of Kennedy’s knew what it was most lasting lega- like to be crowded cies, said Nick Little- out. This sensitivity field, who worked as “helped him develop a staff director and his special gifts of chief counsel for Ken- always looking out nedy on the Senate for others, of mak- Committee on Health, ing people laugh, Education, Labor and and bringing them Pensions, would be together no matter universal health care, how differently they an issue on which saw the world,” she Kennedy worked hard said. “He saw the law throughout his career. as an instrument of social change, not in the just wake up in the morning and try to get Although the health-care bill did not abstract but in its effect on the everyday lives to work fast, because every minute, there pass until after Kennedy’s death, Little- of those who were left out or left behind and was something going on,” the justice said. field asserted that the senator “had a key needed his help.” “Kennedy’s personality just gripped the role through the moral force of his person- The other speakers described his politi- whole thing.” ality, through his strategic sense, through cal acumen and boundless energy. Thomas Recently, the current Republican chair- being there for key votes, through talking Susman, who was assistant adviser to Ken- man of the House Judiciary Committee to Obama, through the letters he wrote nedy and then general counsel on the Sen- asked Breyer to speak to its members. To to Obama, through the speeches he gave. ate Judiciary Committee from 1968 to 1979, Breyer’s surprise, Lamar Smith wanted to In many ways, universal health care in summed up the senator’s philosophy in know how Kennedy had run the Senate America is the great Kennedy legacy.” That

karin cooper something as basic as health care was so

reaching across the aisle: “Persuade, don’t Judiciary Committee. This request was a / trade. Don’t ask for personal favors. Get testament, Breyer said, to the efficacy of important to Kennedy affirms what Caro- them there on the merits.” This strategy Kennedy’s bipartisanship. line Kennedy said about him: “More than had its defensive advantages as well. If a Feinberg, administrator of the Gulf almost anyone else I’ve ever met, Teddy’s senator would give him a vote that was not Coast Claims Facility, compensating those humanity is what made him such a legis- on the merits, there was a good chance that affected by the BPDeepwater Horizon oil lative giant.” Atticus Gannaway that senator would want one back, said Sus- spill, worked for Kennedy from 1975 to 1980,

senator kennedy: ap photo man. Kennedy didn’t do that, he added—no eventually becoming his chief of staff and (See page 84 for more symposia reports.)

WWW.LAW.NYU.EDU 79 his interest in addressing huge societal issues outside the limitations of a traditional A Man with Many Plans nonprofit structure. Although it was the day before the application deadline, Gupta pulled an all-nighter and became one of eight fellows accepted out of 1,000-plus applicants. The two-year, University-wide program provides up to $25,000 annually, along with cross-disciplinary skills training. “The Reynolds Program has been transformative in helping me really appreciate what a law degree is,” says Gupta. “It’s changed my way of looking at the world.” Adjunct Professor Jill Manny, who taught Gupta in her Law of Nonprofit Or- ganizations class, attributes his success to intense focus. Manny, executive director of the National Center on Philanthropy and the Law, also encouraged him to apply for the highly competitive Rockefeller Brothers Gupta with Fund Fellowship in Nonprofit Law, which a student in Mandalay he won over “an enormous crop of incred- ible candidates,” she says. For the yearlong s an undergraduate majoring The changes are astonishingly simple. fellowship, Gupta will work for the Vera In- in international relations and Middle OPA put garbage bins, for instance, in all stitute of Justice’s general counsel on issues AEastern and Islamic studies at NYU, 200 classrooms so students no longer had related to immigration, youth justice, racial Anurag Gupta ’11 became concerned with to step over refuse on the floor. And it fur- justice, and prosecution reform. the plight of the Burmese people. Typically, nished the library with Burmese-language Still maintaining a focus on Myanmar, Western nations exerted pressure on books where previously only English vol- Gupta recently completed a business plan Myanmar’s longstanding military regime umes filled the shelves. Gupta also orga- for a social enterprise that would help Bur- through boycotts. But to Gupta, that didn’t nized teacher training workshops to foster mese expatriates worldwide learn to start compute: “The regime was still getting peer support, introduce creative techniques businesses. As Gupta sees it, a thriving di- money from other countries; the people for teaching and motivating students, and aspora eventually will improve the condi- were the ones who were suffering.” tackle common classroom issues. tions of those still living there. A few years later, while he was on a Eager to advance his nonprofit man- Professor Helen Scott, co-director of the Fulbright grant, Gupta and some fellow agement acumen, Gupta earned a master’s Mitchell Jacobson Leadership Program in Fulbright scholars founded Opening Pos- in development studies at Cambridge. He Law and Business, helped supervise Gup- sibilities Asia (OPA), a nonprofit that creates then became a Root-Tilden-Kern Scholar at ta’s business plan draft. Like many others, educational opportunities in Myanmar. NYU Law, where he honed essential entre- she sees great promise in Gupta: “There are Partially funded by a Goldman Sachs preneurial and development skills. a lot of students here who want to change Global Leaders Program grant, OPA has im- Fellow RTK Scholar Keren Raz ’10 recalls the world. And there are some who will. But proved the lives of 7,000 students at Phaung telling Gupta, then a 1L, about NYU’s Reyn- he’s one of the ones I would put money on, Daw Oo, a Mandalay charitable school run olds Foundation Program in Social Entre- that he will, in fact, change the world for by Buddhist monks. preneurship, which seemed tailor-made to the better.” A.G.

Lifting the Threat of Deportation from Lawful Residents thanks to immigrant rights clinic “Such a deprivation of liberty undermines citing inadmissibility due to two misde- students Benjamin Cady ’12, Frances the values of fundamental fairness and meanor convictions for shoplifting and Kreimer ’12, and Ruben Loyo ’11, two lawful due process we study in our doctrinal evading a subway fare. “This case was my permanent residents no longer live under courses,” says Kreimer. In January, the introduction to the field of criminal-im- the threat of deportation. client was afforded a full hearing on relief. migration law, and I was shocked to learn Cady and Kreimer represented a lawful Cady and Kreimer represented her at trial that such minor offenses were routinely permanent resident of 48 years who faced and won. The government waived its right treated as grounds for deportation,” says deportation due to a 30-year-old nonvio- to appeal. Loyo. Last spring, he, along with Kulsoom lent felony and more recent misdemeanor Loyo represented a lawful permanent Naqvi ’10, filed a motion to terminate the offenses. She was detained out of state for resident who faced deportation to Jamaica, proceedings based on the government’s nearly five months. The students filed a where he faced persecution as a gay man. failure to establish that these convictions federal habeas petition challenging her At John F. Kennedy Airport, through which were “crimes involving moral turpitude” unlawful and prolonged detention, and he was returning from a relative’s funeral, as required under the law. Loyo argued

within days the government released her. officials seized his green card and passport, and won the case in the fall. gupta anurag

80 NYU SCHOOL OF LAW student spotlight

Preston, Wood, and Jadwat Bartiromo

Salzman, Huang, Friedman, Stewart, and Epstein Nocera Moreno-Ocampo MacKinnon Ripped from the Headlines Insiders, experts, faculty, and students discuss the latest issues over a brown bag lunch.

ettling into its second year, and Customs Enforcement, waded into a prosecution of Sudanese officials for gen- the NYU Law Forum cemented its discussion of the highly charged Arizona der-based crimes should yield to efforts place at the center of the Law School’s statute that made it a state crime for an to negotiate peace. “Bartering off crimes Sintellectual life. On 14 Wednesdays at alien to be in Arizona without carrying re- against women to pacify politics among 12:25 p.m., newsmakers, insiders, and influ- quired immigration documents. “Let me be men,” she said, “emerges as just the lat- entials debated the hot topics and pressing clear,” said Jadwat. “The impact in day-to- est way to make women and their rights public policy issues of 2010–11, ranging from day terms is not restricted to folks who lack expendable.” Michael Orey aggressive policing to WikiLeaks and “don’t documentation. These laws subject people ask, don’t tell” to taxation. to different treatment based on how they’re The discussions often featured panel- perceived, not on their actual status.” Through annual gifts of $5,000 or more, ists with widely differing views. Take, for Prominent business journalists Maria wa l l ac e- lyo n - e u s t i c e a s s o c i at e s example, the kick-off forum, on the after- Bartiromo of CNBC and Joseph Nocera of ensure that NYU Law’s Graduate Tax Program remains the leading math of BP’s Deepwater Horizon oil spill in the New York Times were part of a panel that tax program in the world. the Gulf of Mexico. The role the government examined the financial crisis and whether can play in preventing similar disasters was we are at risk for another one. “Bubbles are central to points made by Richard Stewart, part of the human condition, and delusions John Edward Sexton Professor of Law; Ame- are part of the human condition,” said Noc- lia Salzman ’85, associate director for policy era. He believes the next market meltdown outreach at the White House Council on is, at best, 60 or 70 years away. Environmental Quality; and Albert Huang, No holds were barred, or opinions an attorney at the Natural Resources De- blunted, when Luis Moreno-Ocampo, pros- fense Council. But fellow panelist Richard ecutor of the International Criminal Court, Epstein, Laurence A. Tisch Professor of Law, and Catharine MacKinnon, the renowned introduced himself with a disclaimer: “My scholar on issues of sexual equality, head- job here, as usual, is to sort of be the Grinch lined a discussion of gender-based crimes who stole Christmas.” He hewed to his in Sudan. Moderated by José Alvarez, Her- longstanding views that government reg- bert and Rose Rubin Professor of Interna- ulation should be minimal and presented tional Law, the discussion examined the arguments that BP might make to limit its ostensible choice between accountability damages in court proceedings. and peace in the Sudanese conflict. While A few weeks later, Omar Jadwat ’01, a staff Moreno-Ocampo was more measured, as- attorney at the ACLU Immigrants’ Rights serting that the underlying mission of the To become a Wallace-Lyon-Eustice Project; Julia Preston, an immigration cor- ICC is to establish “respect for the victims, Associate and support the Graduate Tax respondent for the New York Times; and Julie respect for the law, and also respect for the Program, please call Marsha Metrinko at (212) 998-6485. Myers Wood, former head of the Depart- accused,” MacKinnon vehemently rejected ment of Homeland Security’s Immigration the idea suggested by some people that the

WWW.LAW.NYU.EDU 81 Fall Ball

Carnevale

The Joker Herbert, Lake, Roth, and Eisenberg Just Icing on the Case Students hone their skills working on high-profile litigation.

his past school year saw nyu law on something that affects so many people,” students taking part in several says Roth. For Eisenberg, who worked on prominent court cases, including Barack Obama’s presidential campaign be- Tone of the first legal challenges to fore coming to NYU Law, the research was Lady GaGa health-care reform and a public campaign an opportunity to contribute to an issue she finance case that was argued before the U.S. had supported on the campaign trail. Supreme Court. Also this year, as part of the Brennan In Commonwealth of Virginia v. Sebel- Center for Justice’s Campaign Finance Re- ius, now before the U.S. Court of Appeals for form project, students in the Brennan Cen- the Fourth Circuit, the state is suing the U.S. ter Public Policy Advocacy Clinic assisted secretary of health and human services, al- on a high-profile Supreme Court case. Last leging that the health-care law’s mandate March the Brennan Center defended Mc- that everyone have insurance coverage is Comish v. Bennett, a case challenging one unconstitutional under the interstate com- provision of Arizona’s public financing sys- merce clause. tem—trigger matching funds. The Brennan After learning that no amicus brief Center and its pro bono partner Munger,

Super Mario Bros. dealt squarely with the relevant history of Tolles & Olson represented the respondent, the commerce clause, Jacob D. Fuchsberg the Clean Elections Institute. “The Arizona Professor of Law Barry Friedman reached Clean Elections system, in effect for over out to students in late January for research a decade, helped move the state beyond West Fourth Story assistance. With less than three weeks be- egregious corruption and recurrent scan- fore the filing deadline, the 2Ls divided the dal,” says Brennan Center Executive Di- work by era: Graham Lake ’12 and Colin rector Michael Waldman ’87. “This law has Roth ’12 researched the years of the coun- boosted speech while combating corrup- try’s founding, while Lynn Eisenberg ’12 tion.” Despite the Brennan Center’s efforts, covered the Gilded Age. Ian Herbert ’12 fo- however, the Court threw out the provision. cused on the necessary and proper clause. In addition to providing research and Two Yale law students also contributed to editing for the case, Laura Moy ’11 and Mar- the work. Friedman worked with appellate cus Williams ’12 drafted a report on the attorneys including Jeffrey Lamken, the impact, efficacy, and benefits of public fi- counsel of record, to produce a brief based nancing. Noting that the 2010 election cycle NYU Law Revue, the student The 2011 on the research. The appellate team plans was the most expensive in history, Moy adds, musical that pokes fun at all things NYU to file the brief in every upcoming health- “A lot of people don’t realize that, as consum- Law, was a nod to a certain collaboration care-reform case. ers, we are paying for a lot of it. We pay com- of Leonard Bernstein, Stephen Sondheim, “This is what people come to law school panies for their goods and services, and they and Arthur Laurents. In this version, the to do, to be involved in the hot-button is- turn around and spend money on political two warring groups are the Gunners and sues of the day and to have a chance to work goals that we may or may not agree with.” the Slackers, but among them are two 82 NYU SCHOOL OF LAW students destined for each other. student spotlight THREE-PEAT! For the third year in a row, NYU Law defeated Columbia Law in the annual Deans’ Cup fundraiser. The final score was 78-67. NYU Law also triumphed, 4-2, in the 10-minute faculty half-time game, breaking Columbia’s five-year winning streak. In its 10th year, the co-ed basketball game continues to be the largest student-run law school event in the country. The organizers raised more than $40,000 to finance student public interest law organizations at both law schools. Scholarly Awards Marden Moot on Surveillance American Bar Association Business Law he case argued in the 39th Distinguishing between planting a GPS Section 2010–11 Mendes Hershman Student annual Orison S. Marden Moot Court device on a person as opposed to a vehicle, Writing Contest: “Textron: The False Choice TCompetition, prepared by Peter Mozzi said, “This court has held that there’s Between Financial Transparency and Liti- Farrell ’12 and Steve Rowings ’12, involved a diminished expectation of privacy in gant Confidentiality,” by Chris Jung ’11 a narcotics investigation in which D’Angelo your vehicle. It has re- LexisNexis’s 11th annual James William Barksdale was tracked remotely for six peatedly held that the Moore Federal Practice Award: “Pleading in weeks using a GPS device that a detec- exterior of your car is the Information Age,” by Colin Reardon ’10 tive had attached to the undercarriage of not subject to any rea- Barksdale’s vehicle. Barksdale appealed sonable expectation New York State Bar Association Environ- his subsequent cocaine-related convic- of privacy.” Hodges mental Law Section 2010 Professor William R. Ginsberg Memorial Essay Contest: “Eco- tions, arguing that the use of a GPS device won the award Antiterrorism: EPA’s Role in Safeguarding without a warrant was an unreasonable for outstanding Our Nation’s Chemical Plants,” by search under the Fourth Amendment. Hugh brief writing. Jon Kalmuss-Katz ’10 Murtagh ’11 and David Hodges ’12, counsel for the petitioner, and Anthony Mozzi ’11 and Theodore Tannenwald Jr. Foundation Jeremy Hays ’12, representing the respon- for Excellence in Tax Scholarship’s 2010 dent, argued before U.S. Court of Appeals Writing Competition: “In Defense of judges Thomas Griffith for the District of College Savings Plans: Using 529 Plans to Increase the Impact of Direct Federal Columbia Circuit, David Hamilton for the Grants for Higher Education to Low- Seventh Circuit, and Debra Ann Livingston and Moderate-Income Students,” by for the Second Circuit. Caroline Waldner ’10 (LL.M. ’11) Mozzi, who won best oralist, faced an uphill Virginia Journal of International Law battle in convincing 2011 Human Rights Student Scholars three skeptical judges Writing Competition: “Reassessing the Role of Supplier Codes of of the constitution- Conduct: Closing the Gap Between ality of Barksdale’s Aspirations and Reality,” by GPS surveillance. Andrew Herman ’10 Public Service Auction raises $105,000 With the lingering economic downturn, more students are doing public service summer internships—everywhere from the International Criminal Tribunal for Rwanda in Tanzania to the New York City Fire Department. Under Dean Richard Revesz, the Law School has guaranteed funding for such internships to every 1L and 2L who wants to do one. The annual auction helps pay their way. “Literally hundreds of NYU Law students volunteered to canvass local businesses, reach out to alumni, and help things run smoothly on the night of the auction,” says Sara Rakita ’98, associate director of the Public Interest Law Center, which coordinates the event. “It’s great to see so many students, alumni, and faculty come together to celebrate public service at the Law School.”

WWW.LAW.NYU.EDU 83 of Law Florencia Marotta-Wurgler ’01; and Yolanda Wu, co-founder and co-president of The Year in Issues A Better Balance: The Work and Family Legal student symposia Center and adjunct professor of law. The 16th Annual Herbert Rubin and Justice Rose Luttan Rubin International Law Sym- posium | On Thin Ice: International Law and Environmental Protection in a Melting Arctic Environmental Law Journal and Journal of International Law and Politics The United States is one of eight nations with territory above the Arctic Circle. Melting sea Regulatory Reform and the Future of the U.S. Financial System Journal of Law & Business ice has thrust these previously unnavigable The Dodd-Frank Wall Street Reform and Consumer Protection Act, signed in 2010, created and commercially inaccessible waters into a the most sweeping financial regulatory change since the Great Depression. Practitioners series of legal, political, and environmental and scholars including Assistant Professor Ryan Bubb (far left) and Sullivan & Cromwell disputes, which are expected to intensify in Partner and Senior Chairman H. Rodgin Cohen (middle) discussed banking reform, while the years ahead. Peter Taksøe-Jensen, Dan- other distinguished panels explored derivative regulation and the future of Fannie Mae ish ambassador to the U.S. and former U.N. and Freddie Mac. The former inaugural director of the SEC Division of Risk, Strategy, and assistant secretary general for legal affairs, Financial Innovation, Henry Hu, gave the keynote address. Now a professor at the Univer- gave the keynote address. sity of Texas School of Law, Hu is credited with warning banks of the risks of derivatives. Policing, Regulating, and Prosecuting Corruption Annual Survey of American Law Plain Meaning in Context: Can Law Survive Its Corporations as Progressive Actors Keynote speakers gave firsthand accounts of Own Language? Journal of Law and Liberty Review of Law & Social Change their efforts to combat corruption. Anne Mil- What role does the plain meaning of lan- Scholars, activists, and practitioners exam- gram ’96, former attorney general of the State guage have within the law? Moderators ined the role that corporations play—as em- of New Jersey, focused on structural chal- Burt Neuborne, Inez Milholland Professor ployers, participants in global markets, and lenges to prosecuting corrupt government of Civil Liberties; Roderick Hills Jr., Wil- political actors—in promoting progressive officials, particularly at the state and local liam T. Comfort, III Professor of Law; and ideals, and considered the limits and risks levels. Neil Barofsky ’95, former special in- Amy Adler, Emily Kempin Professor of Law, raised by a shift away from public regula- spector general of the Troubled Asset Relief respectively, led discussions on the broad tion and toward the private sphere. EEOC Program, discussed TARP’s success in res- question of when plain meaning works and Commissioner Chai Feldblum reviewed cuing the nation’s major banks and prevent- when it doesn’t; the influence of language in some corporate sector accomplishments ing a collapse of the financial system, and administrative law; and plain meaning in and appealed to progressive lawyers and its “horrendous” failure in restoring lending respect to intellectual property law. Richard corporations to continue to collaborate on and preserving homeownership. Milgram Epstein, Laurence A. Tisch Professor of Law, important goals. Panels were moderated and Barofsky are both senior fellows at the offered “A Modest Theory of Interpretivism” by Kenji Yoshino, Chief Justice Earl Warren Center on the Administration of Criminal in his keynote address. Professor of Constitutional Law; Professor Law, the co-sponsor of the event.

Katrina’s Blow to Social Justice

ometimes a picture caption is Quigley’s stirring lecture and worth a thousand words. Beneath an slide show, “Justice Delayed Is August 30, 2005 photo of an African Justice Denied: How to Destroy S American, a newswire wrote: “A an African-American City in 33 young man walks through chest-deep Steps,” grew out of an encoun- flood water after looting a grocery store in ter at a New Orleans grocery New Orleans.” A similar image of two white store, where Quigley overheard people was labeled this way: “Two residents white patrons wondering aloud wade through chest-deep water after finding why black residents repeatedly In New Orleans’ Lower 9th Ward, 2007 bread and soda from a local grocery store.” complained about racial prob- This was one of many examples of racial lems in the city. Quigley, who during the dignity and equal and inalienable rights

disparity highlighted by William Quigley, worst flooding was with his wife, an oncol- of all members of the human family,” said alex brandon director of the Gillis Long Poverty Law Cen- ogy nurse, at a New Orleans hospital where Quigley. “What you see in Katrina, what you / ter at Loyola University New Orleans School more than 40 people died, became angry. In see in Haiti, what you see in this town and of Law, at a February program sponsored by one sitting, he created a list of almost three all the other places doesn’t begin to measure more than a dozen law student groups to dozen post-Katrina racial injustices. up to equal and inalienable rights. It might coincide with NYU’s annual Martin Luther “Our U.S. laws...don’t work for justice.... be legal, but it’s not just. Our challenge is to

King Jr. Celebration Week. There must be recognition of the inherent narrow the gap between law and justice.” new orleans: ap photo

84 NYU SCHOOL OF LAW student spotlight man who, at 16, drove two older teens to a store where the pair robbed and killed the owner. The client, who had remained in the car, was convicted of capital murder and sentenced to life in prison without parole. Northrup’s ease in chatting about music and basketball helped him find common ground with the client. “I can see how much of an uphill battle it is for anyone accused of a crime,” Northrup says. “It’s that sense of frustration and helplessness that I want to work toward alleviating as a lawyer.” In May, after researching similar cases involving juveniles convicted of homicide, Northrup helped draft a brief filed in Mis- sissippi State Court arguing that the client’s sentence was disproportionate and thereby Man and Music in Harmony violates the Eighth Amendment. If relief li northrup’s activities are as he says. “It gives him a broad knowledge isn’t granted, a federal habeas petition will diverse as his iPod playlist. Just as of both creative and diverse communities.” be filed in federal district court. he listens to jazz, bluegrass, pop, Northrup agrees wholeheartedly. “It’s This fall, Northrup is clerking for U.S. Eand punk, the Arthur Garfield Hays easy to get into a routine where you just District Judge Robert Patterson of the Civil Liberties Fellow and Review of Law & interact with other students and lose sight Southern District of New York, and he will Social Change staff development editor was of what people are going through,” he says. somehow still find time to perform and also captain of this year’s victorious Deans’ “Not that musicians are the most down-to- write music with Pants Velour. Hershkoff, Cup basketball team and a member of the earth group, but a mix of the two worlds for one, expects no less: “One of the things rap/hip-hop band Pants Velour, which he keeps me closer to reality.” that distinguishes Hays Fellows is their started in 2006 with two Cornell under- That reality is what set Northrup upon ability to combine a passion for something graduate classmates. “I want to be a law- his legal career path. After graduating outside the law, like artistic expression, yer,” says Northrup ’11, “but I don’t feel like from Cornell, Northrup volunteered with with their practice of law,” says Hershkoff. I need to be just one thing.” the DREAM Project in the Dominican Re- “Eli is a renaissance person.” Graham Reed Pants Velour performs in quintessen- public, where he taught preschool, ran a tial downtown clubs such as Arlene’s Gro- library, and taught basketball and swim- cery and Webster Hall. Onstage, Northrup ming. He also witnessed racial tension is the hype man who accentuates the last between Dominicans and their Haitian words of the lead rapper’s lines and plays neighbors. “Haitian immigrants were es- to the crowd to get them excited through- sentially treated as undeserving of rights or out the show. “I’m there to have a good protections,” Northrup says. “They had no time,” says Northrup. voice, and that disturbed something in me.” Northrup, who once played piano and As a Hays Fellow working for the NAACP guitar, co-writes the band’s catchy songs. Legal Defense and Educational Fund (LDF) A video of his parody rap, “Charlie Sheen: this year, Northrup says he has also wit- Always Winning,” which lampooned the nessed similar underrepresentation in the actor’s highly publicized antics after he was criminal justice system, as he had already fired from his top-rated sitcom last winter, seen while working in public defender offices. has been seen more than 355,000 times on The LDF’s client is a 25-year-old Mississippi YouTube and caught the attention of the national legal community. The blog Above the Law posted the video, while the Am Law Daily’s Careerist blog called it “fast and Barristers’ Ball saucy—especially amazing coming from a serious law student.” Within Law School circles, Hays Faculty Co-Director Sylvia Law ’68 counts herself a fan, having attended a gig, while Co-Direc- tor Helen Hershkoff donated a Pants Velour

prize package to this year’s PILC auction. Barrister’sDATE Ball Northrup’s Criminal and Community De- fense Clinic professor, Anthony Thomp- son, appreciates how music has enhanced Northrup’s legal skills. “Hip-hop has given Eli a unique perspective as a lawyer,”

WWW.LAW.NYU.EDU 85 Convocation 2011 On May 20, NYU School of Law observed two firsts as it held its 2011 graduation exercises. It was the first time that the ceremonies took place at the historic Beacon Theatre on the Upper West Side, as well as the first year that the J.D. recipients and those earning postgraduate degrees were graduated in consecutive morning and afternoon events. All told, there were eight speeches, two processionals, and 751 graduates who received any of 15 degrees on the same stage where the 2011 Tony Awards were held and the Rolling Stones and Michael Jackson rocked the house.

Albert Ackerman ’36, left, was among the VIP guests at the morning ceremony. The 97-year-old founder of Ackerman Court Service and his family were celebrating the 75th anniversary of Ackerman’s own J.D. convocation. Dean Richard Revesz reflected Class speaker Noam Biale ’11, a Root-Tilden-Kern on the dramatic world events Scholar who worked for the Iraqi Refugee Assistance that occurred in recent years, Project in Jordan and for the Equal Justice and Capital including revolutions in North Defender Clinic in New York and Alabama, spoke about Africa and the Middle East, the the need to look at seemingly intractable problems tsunami and its aftereffects in innovative ways: in Japan, the BP oil spill in the Gulf of Mexico, and global “For those of us who came to law school economic turmoil: hoping to shine a light on injustice, the “You’re entering a world world looks increasingly dark, so we will of upheaval, but you’re need bold new thinking…. Luckily, NYU well equipped to handle has exposed us to people and ideas Convocation 2011 those challenges.” that continue to challenge the narrative despite the odds.”

Martin Lipton ’55, chair of New York University’s Board of Trustees and a founding partner of Wachtell, Lipton, Francis Chukwu (LL.M. ’11), who graduated first Rosen & Katz, described the history in his class from the University of Nigeria Faculty of the Law School through the efforts of Law, recalled co-founding Afritude, a student of each of its deans: discussion forum about history, news, and events “Go forth in the tradition shaping Africa: that Arthur Vanderbilt “From the day we had our first session described, combining the to the day we had our last, I never professional practice of ceased to be amazed at the interest law with public service.” and empathy shown by participants, about 80 percent of whom were non- Africans, in the history, the cause of justice, human rights, development, Leonel Fernández, president of the Dominican Republic, who is known democracy, and responsible gover- for his extensive reform efforts in his nance in Africa. My faith that we could home country, cited the rapidly chang- help nurture one another’s dreams to ing global landscape, encompassing the world economy, the environment, succeed has only waxed stronger. democratization, and the need to give I believe that this strong sense of emerging countries a more prominent support and encouragement for one place at the table: another will, in no small measure, “At this moment in history, define our success.” mankind is at a crossroads. For the pessimists, we are

approaching doomsday. Anthony Welters ’77, chairman of the Law For others like us, however, School’s Board of Trustees, recounted the we have never doubted story of one of the Law School’s first African- American graduates, Charles Conley ’55, the creative capacity of who played an integral role in the civil rights the human race. This is an movement and was the first African-American exhilarating and challenging judge elected in Alabama: period which must result “You are living proof that America’s in a new wave of prosperity, best days are ahead of it.” social justice, development, and transformation.”

WWW.LAW.NYU.EDU 87 1 The Class of 2011 Beaming relatives and scholarship donors had the honor of hooding family and scholars onstage. 6

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Who’s Who: Legacy Families 1. Julio Guzman-Carcache with his sister, 10. Benjamin Hall Schaefer with his father, Ana Cristina Guzman (LL.M. ’01). David Schaefer ’73, and his mother, U.S. District Judge Janet Hall ’73. 2. David Moses with his brother, Matthew Moses ’07. 11. Giulia Stella Previti with her godfather, 3. Nyasha Pasipanodya and her sister, the Honorable Frank J. Guarini Jr. ’50 Tafadzwa Pasipanodya ’08. (LL.M. ’55). 4. Mark Friedman with his father, Lawrence Friedman ’76 12. Diego Quiñones with his sister, Natalia (LL.M. ’82). Quiñones (LL.M. ’08). 5. Lucia Navratova with her brother, Matus Navrat 13. Joseph Soltis with his father, Michael Soltis (LL.M. ’10). (LL.M. ’86). 6. Justin Weitz with his sister, Michelle Weitz 14. Sarah Schoenbach with her aunt, Gewanter ’01 (LL.M. ’05). Arlene Popkin ’74. 7. Daniel Novack with his brother, Jeffrey Novack ’08. 15. Alexander Mindlin with his wife, Danielle 8. Jonas Oransky with his father, Charles Oransky ’75 Posen Mindlin ’08, and their daughter Ruth. (LL.M. ’80). 16. Carlos Jimenez-Cantu with his father, 9. Dori Straus with her uncle, Law School Trustee Carlos Jimenez-Barrera (M.C.J. ’80). Daniel Straus ’81. 11

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Scholars and Donors 1. Anthony Welters ’77, chairman of the Law School’s Board of 9. John Sexton Scholar Jacob Berman was hooded by NYU Law Board Trustees, and Ambassador Beatrice Welters hood AnBryce Scholars Chair Emeritus Lester Pollack ’57. (Not photographed: John Sexton (clockwise from top left): Angela Libby (Clifford Chance Scholar), Scholar Lawrence Dabney.) Victor Davis (William Randolph Hearst Foundation Scholar), and 10. Bickel & Brewer Latino Institute for Human Rights Scholar Alba Villa Carroll & Milton Petrie Foundation Scholars Patrick Armstrong, was hooded by Annalisa Miron ’04. Sean Aasen, Lilia Toson-Dysvick, Isaly Judd, and Claudia Flores. 11. Herbert & Rose Hirschhorn Scholar Andrea Clowes was hooded by 2. Thomas M. Franck Scholar in International Law Maria Cecilia Nancy Karlebach. Sicangco (Hauser Scholar) was hooded by Rochelle Fenchel. 12. Sullivan and Cromwell Public Interest Scholar Ruben Loyo (Root- 3. WilmerHale Scholar Noam Biale (Root-Tilden-Kern) was hooded Tilden-Kern) was hooded by Law School Trustee Kenneth Raisler ’76. by Brian Johnson ’99. 13. Andrew W. Mellon Scholar Yihong Mao (Root-Tilden-Kern) was 4. Sinsheimer Public Service Scholar Kosha Tucker (Root-Tilden-Kern) hooded by Michele Warman. was hooded by Law School Trustee Warren Sinsheimer (LL.M. ’57). 14. Furman Scholars Michael Pollack, Matthew Shahabian, Genevieve 5. Susan Isaacs & Elkan Abramowitz Scholar Renee Hatcher was Lakier, Elliot Tarloff, Erin Adele Scharff, Joanna Langille, and Pieter de hooded by Susan Isaacs and Elkan Abramowitz ’64. Ganon were hooded by Law School Trustee Jay Furman ’71. 6. M. Carr Ferguson Fellow in Tax Law Jeffrey Arbeit was hooded 15. Richard L. Posen Scholar Albert Huang was hooded by by Law School Trustee M. Carr Ferguson (LL.M. ’60). Warner Posen. 7. Dwight Opperman Scholar Alexandra McCown was hooded by 16. Herman Diamond Scholar Sarah Adam was hooded by Law School Trustee Dwight Opperman. Jessica Diamond. 8. Thomas E. Heftler Scholar Brian Pete was hooded by Lois Weinroth. Photographs by Leo Sorel

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14 16 WWW.LAW.NYU.EDU 91 Commencement 2011 Pursuing Happiness in an Interdependent World ith new york university In the past 30 years, Clinton argued, the rapidly fulfilling its goal to be U.S. had been hurt by two ideas that ben- the premier “global network efited the most powerful in society: the W university,” graduating 8,000 notion that corporations should cater to world citizens in 2011 from campuses on their shareholders at the expense of other six continents, it was fitting that Bill Clin- stakeholders and the assertion that the gov- ton, sometimes called the president of ernment ruins everything it touches. Mim- the world, gave the 179th commencement icking those who espouse privatization, speech on May 18. Clinton elucidated the essentially declaring “there is no such thing pros and cons of globalization in a stirring, as a good tax, no such thing as a bad tax cut, sometimes personal, and at times politi- no such thing as a good regulation, no such cally pointed address. thing as a bad deregulation,” Clinton coun- The former president invoked a sweep- tered that the idea “contradicts the evidence ing array of world issues, including global in the United States and every other coun- warming, the lack of opportunities for try in the world. The only truly successful young people in poorer countries, and the countries have both strong economies and ease with which not only violent actors but effective governments and a public-private also disease and financial instability can partnership to share the future.” cross national borders. He left the graduates with advice that Clinton acknowledged that his own they look inward before setting their future story of being raised by a hard-working, goals: “The great challenge of your life will single mother to become the 42nd president be how to live out your personal story, pur- of the United States is not only an American sue your personal dreams, enjoy your per- Dream but also possible only in wealthier sonal compassions and compulsions and countries. He expressed concern that future interests in a world that is getting better, generations could potentially be shut out: not worse, where the forces of positive in- “The problem with all countries that have terdependence outweigh the negative ones.” great systems is they get long in the tooth. Also honored at commencement was They become so successful that those who Kenneth Feinberg ’70, who was awarded run them are more interested in holding the Albert Gallatin Medal for outstanding on to their positions than advancing the contributions to society. Among many roles, purposes for which they were established, Feinberg has served as special master to more interested in maintaining the gains the September 11th Victim Compensation of the present than achieving even greater Fund and is currently administrator of the ones for our children in the future.” BP disaster’s Gulf Coast Claims Facility.

NYU@NUS held its fourth convocation, at Singapore’s Asian Civilisations Museum on February 28. Guest of honor Sundaresh Menon, Attorney-General of Singapore, exhorted the graduates to proceed in their careers mindful of the importance of ethics, application, passion, and service: “You have come this far and with so many opportunities open to you; you no longer have the luxury of settling for mediocrity. Excellence comes at a price. You will have to work very hard to maintain the highest possible standards.”

92 NYU SCHOOL OF LAW student spotlight his own initiative or upon referral by the Student Scholarship BIA or the Department of Homeland Se- curity (which represents the government in removal, or deportation, proceedings at the administrative level). Although the attorney general rarely exercises his authority to review BIA decisions, averaging less than two certified decisions annually between 1999 and 2009, the majority of his decisions produce significant changes in the law that directly affect whole classes of immigrants in removal proceedings. The certification The Need for Procedural process has been used to announce new rules, overturn longstanding precedent, Safeguards in Attorney General and announce the attorney general’s position on constitutional issues. As such, certification functions as a selective poli- Review of Immigration Appeals cymaking device that allows the attorney general to assert control over the BIA and effect profound changes in legal doctrine. For all its significance, the certification process is almost entirely lacking in procedural safeguards. The regulations governing certification require only that the attorney general’s decision be stated in writing and transmitted to the BIA or DHS for service upon the party affected. They impose no requirement that the attorney general give notice of the issues to be considered on review, provide an opportunity for the parties to be heard, or solicit input from interested amici on issues of broad significance. This lack of procedural requirements results in haphazard, secretive, and sometimes politicized review, with process determined by the attorney general in an ad hoc, case- by-case manner. Even in cases less extreme than Silva-Trevino, where the attorney general has permitted briefing by the parties and amici, advocates complain that the process takes place in “a precipitous manner, laura trice ’10 without affording an adequate opportunity for parties and interested amici to provide n november 8, 2008, just two or argue the issue, even though it had never full briefing of the serious issues involved.” months before he left office, been addressed below. Nonetheless, when (Taken from an October 6, 2008 letter from Attorney General Michael Silva-Trevino moved for reconsideration in Lee Gelernt et al., ACLU Immigrants’ Rights Mukasey issued an opinion that part on due process grounds, the attorney Project, to Attorney General Michael Mu- reversed decades-old principles general responded with a one-paragraph kasey.) The unconstrained nature of attor- O of immigration adjudication. denial that flatly rejected any due process ney general review is particularly troubling Exercising his power to review decisions concerns, stating only that “this matter was given that the issues considered upon cer- of the Board of Immigration Appeals (BIA), properly certified and decided in accor- tification are often politically charged, and the attorney general used the BIA’s unpub- dance with settled Department of Justice thus potentially vulnerable to politically lished decision in Matter of Cristoval Silva- procedures,” and declaring that “there is driven decisionmaking. Trevino as a vehicle to completely rewrite no entitlement to briefing when a matter is Contrary to the attorney general’s pro- longstanding precedent governing “crimes certified for Attorney General review.” Att’y nouncement, there should be an entitle- involving moral turpitude”—a term of art Gen. Order No. 3034–2009 (Jan. 15, 2009). ment to briefing and other procedural that plays a critical role in deportability Silva-Trevino is a dramatic illustration of protections when the attorney general cer- determinations. The precedent had not an issue that has long troubled immigra- tifies a matter for review. First, from the been questioned by either of the parties; tion advocates. Under immigration regula- perspective of the individual immigrant, the attorney general gave no indication tions, the attorney general has discretion the lack of procedural safeguards raises that he planned to reconsider it; and the to certify to himself any of the 30,000-plus serious due process concerns. Courts have parties were given no opportunity to brief BIA decisions issued each year, either on long held that an immigrant’s interest in

WWW.LAW.NYU.EDU 93 student spotlight remaining in the U.S. is extremely signifi- This is not to say that the attorney gen- Because the parties themselves may not be cant, and noncitizens residing in the U.S. eral should abstain from policymaking well positioned to address the broader im- are therefore entitled to due process in de- through certification altogether or that he plications of a generally applicable rule, the portation proceedings and appeals. Attor- should choose, whenever possible, to issue opportunity for briefing should also be ex- ney general review presents special risks rules of general applicability through the tended to interested amici. Providing amici that should heighten concerns about due rulemaking process. Instead, the attorney a meaningful opportunity to be heard will process in the certification context: the general should seek to increase the quality both facilitate full and accurate develop- complex analysis of law and fact that un- and fairness of his decisions by maximizing ment of the issues and help to legitimate a derlies attorney general decisions presents participation in the certification process— process that may otherwise appear to cir- a significant risk of error, and this risk is en- by providing for meaningful, adversarial cumvent the broad participatory process of hanced by the structural position occupied participation by the parties and solicitation notice-and-comment rulemaking. by the attorney general as both adjudicator of briefing by interested amici. To ensure The certification power is unlikely and litigator in immigration matters. The such participation, the attorney general ever to become a wholly uncontroversial Office of Immigration Litigation (OIL), part should promulgate binding regulations that device. Under any administration, the of the Department of Justice, handles im- lay out in detail the procedures that must be power is likely to be used to effect signifi- migration litigation in the federal courts, followed when a case is certified for review. cant changes in immigration law, to the and OIL is frequently consulted regarding Strong procedural requirements for at- dissatisfaction of one party or another. the litigation consequences of immigration torney general review should begin with But there is no reason for attorney general policy decisions. Advocates have specu- adequate notice to both the parties and the review to take place under a veil of secrecy, lated that communications by OIL may public. Ideally, notice should occur at the without the relatively simple procedural guide the attorney general’s decision to stage of referral or consideration for certifi- safeguards that we take for granted in certify a case and inform his resolution of cation, rather than upon certification itself, other contexts. By promulgating regula- the issues reviewed. These concerns should and the parties and interested amici should tions that bind himself and future attor- counsel in favor of stronger procedural be provided an opportunity to object to cer- neys general to fair and clear procedures, protections. Before the attorney general, tification. Under the current regulations, the the attorney general could lift the veil of however, immigrants are not guaranteed government has absolute control of what secrecy and restore transparency to the even the basic protections of notice and cases are brought before the attorney gen- certification power, improving the legiti- an opportunity for briefing that we take for eral for review. The BIA, the DHS, or the at- macy and perhaps the quality of immigra- granted in other contexts. torney general can pick and choose among tion law in the process. The lack of procedural safeguards in at- the 30,000-plus cases decided by the BIA torney general review also presents broader each year to find the case that presents the laura trice, a former Palmer Weber Fellow concerns. When the attorney general uses issues in the light most favorable to its own in Civil Rights within the Arthur Garfield the certification power to announce bind- position. Granting the parties and amici the Hays Civil Liberties Program, has worked ing rules of general applicability without right to object to certification would permit on civil rights issues for the American Civil providing for meaningful participation them some minimal participation in the Liberties Union’s Immigrants’ Rights Project, by the parties or soliciting input from ex- selection process, allowing them to argue Professor Bryan Stevenson’s Equal Justice pert amici, he runs the risk of issuing de- either that a particular issue does not merit Initiative, the American Immigration Law- cisions of lesser quality and undermining review at all or that the case selected does yers Association, and Human Rights Watch. public confidence in immigration law. Like not present the issues fully. Such opportu- She graduated in 2010 as a Butler Scholar most agencies, the attorney general has a nity to object would also allow the parties or and a member of the Order of the Coif, and number of policymaking tools at his dis- amici to persuade the attorney general that received the University Graduation Prize, posal, including both adjudicative review some other mechanism, such as notice-and- the Frank H. Sommer Memorial Award, and of BIA decisions and notice-and-comment comment rulemaking, is a more appropriate the Administrative Law Prize. rulemaking. Because rulemaking permits means of resolving the issue. Trice was inspired to write the note that broad participation in policymaking by Additionally, as in an appeal before the is excerpted here after working with Profes- all affected groups and individuals, many BIA, the parties must be given notice of cer- sor of Clinical Law Nancy Morawetz ’81 in scholars argue that rulemaking, rather tification procedures and sufficient informa- the Immigrant Rights Clinic to represent a than adjudication, results in higher quality tion to allow them to prepare and present noncitizen who was unlawfully detained. rules. Whereas adjudication permits con- arguments. At the very least, this means She gratefully acknowledges the support sideration of only the data and arguments identifying the issues to be considered upon she received from Morawetz and Assistant presented by the parties, rulemaking al- review and giving the parties notice of the Professor of Clinical Law Alina Das ’05. The lows solicitation of input from the broader briefing schedule and other procedures. To full note was published as “Adjudication by public and forces the agency to consider address broader accuracy and fairness con- Fiat: The Need for Procedural Safeguards in the national effects of adopting a rule that cerns, notice that a case has been certified Attorney General Review of Board of Immi- will bind parties in a wide spectrum of to the attorney general should also be acces- gration Appeals Decisions” in the November cases. Given the availability of rulemaking, sible to the general public, through publica- 2010 NYU Law Review, of which she was a many view the attorney general’s use of the tion in the Federal Register or a public docket staff editor and a notes editor. secretive certification process as a means maintained online. Currently clerking for Judge David S. Tatel of avoiding transparency and participation. Finally, to satisfy the basic requirements of the U.S. Court of Appeals for the District This makes the certification process appear of due process, the attorney general must, at of Columbia Circuit, Trice has clerked previ- not only unfair, but also a poor means of a minimum, provide the parties an oppor- ously for Judge Lucy H. Koh of the U.S. District making high-impact policy decisions. tunity to fully brief the issues under review. Court for the Northern District of California.

94 NYU SCHOOL OF LAW student spotlight space, as well as residential buildings con- taining 4,500 apartments. Over the course Addressing the Exactions of the following 18 months, FCR’s proposed development would lead to the negotiation Problem of Community and signing of New York’s first community benefits agreement in June 2005. In part due to its scale, the project im- Benefits Agreements mediately attracted controversy and opposition. In order to placate the community, Ratner expressed interest in negotiating a binding contract with the community and began meeting with several community organizations in 2004. The following summer, FCR signed a CBA, which promised community benefits related to, inter alia, first-source hiring; job training and referral programs; the hiring of minority- and women-owned subcontracting firms; affordable housing; the construction and maintenance of various community facilities, parks, and open spaces; mitigation of environmental harms caused by the project; capital improvements for preexisting community facilities; and educational and youth-targeted programs, including the development of four schools to be located in the surrounding community. The membership of the coalition that negotiated the CBA quickly became a point of contention. FCR met with only a small number of groups, one of which had michael nadler ’11 already publicly announced its support for the project. While eight groups eventually ommunity benefits agree- While commentators have noted several signed the CBA on behalf of the community, ments (CBAs), contractual potential obstacles to their enforceability, only two of them appear to have actually agreements related to large one of the most pressing and commonly existed prior to the commencement of ne- development projects, are a cited is whether CBAs violate the Takings gotiations. In addition, at least one of the relatively new tool in the realm Clause. In the landmark cases of Nollan v. signatories appears to have been provided C of land use and urban plan- California Coastal Commission and Dolan with millions of dollars in seed money for ning. They are the result of negotiations v. City of Tigard, the Supreme Court held its operations by FCR, while another was between developers proposing specific that certain requirements governments im- reportedly given $1.5 million. Conversely, land use projects, and coalitions claiming posed in exchange for the right to develop the chairs of the community boards af- to represent the neighborhood in which land violated the Fifth Amendment. In the fected by the proposed development claim the developer wishes to build. Generally, context of CBAs, many scholars have ques- that they were effectively frozen out of the the developer agrees to provide the com- tioned whether Nollan and Dolan apply to CBA negotiations. munity with a wide array of benefits, and, CBAs, and if so, under what conditions. This While the CBA talks were underway, in return, the coalition promises either to paper argues that when the government is FRC was also in discussion with city and support the proposed development project, sufficiently involved in the CBA negotiation state officials regarding government ap- or at least not to challenge it politically or process, Nollan and Dolan should apply. In proval and subsidization of the project. legally. Since 2001, the practice of negotiat- practice, this would lead to the invalidation On March 3, 2005, FRC, Mayor Michael ing and signing CBAs in connection with of many promised community benefits con- Bloomberg, and Governor George Pataki major development projects has spread tained in existing CBAs. announced that the Empire State Develop- across the country. Over 30 CBAs have now ment Corporation (ESDC) would act as the been signed or are currently being negoti- atlantic yards (brooklyn, ny) “lead agency” for Atlantic Yards, effectively ated in the United States, while New York On December 10, 2003, developer Forest City circumventing the city’s Uniform Land City alone has been home to more than five Ratner (FCR or Ratner) announced its plans Use Review Procedure, and that the city such agreements in the last five years. for a $2.5 billion commercial and residential and state would each contribute $100 mil- Given their brief history, several issues development in Brooklyn. Centered around lion in funding to the project, to be spent regarding CBAs remain controversial and a $435 million, 19,000-seat arena to be de- on site preparation and public infrastruc- unresolved. Among these is the question signed by celebrity architect Frank Gehry, ture improvements. In August 2006, the of whether CBAs are legally enforceable, an FCR envisioned building four office towers development project was approved by the issue yet to be addressed by the judiciary. with 2.1 million square feet of commercial ESDC, and the Public Authorities Control

WWW.LAW.NYU.EDU 95 student spotlight Board (PACB) followed suit in December posturing, but rather as a genuine threat across the table from government officials 2006. FCR broke ground on the Atlantic should the developer refuse to play ball. as well. This “joint activity” was first dem- Yards Development in February 2007, but In 2008, TRC was chosen by the city to onstrated by the role played by Diaz, mem- the developer subsequently announced turn the Kingsbridge Armory, a landmark bers of Bronx Community Board 7, and that, due to deteriorating economic condi- building that had been vacant for over a de- other unidentified “local elected officials,” tions, it would be forced to delay construc- cade, into a 575,000-square-foot commer- who worked with KARA in the drafting of tion of the office and residential buildings, cial mall. In short order, local community the model CBA. The government officials prompting fears that some of the prom- groups, churches, and labor organizations appear to have continued playing a role ised community benefits would never banded together to form the Kingsbridge in the CBA negotiations, with unidentified be delivered. Armory Redevelopment Alliance (KARA), “Council members and staffers” reportedly While the Atlantic Yards CBA has which threatened to oppose the project involved as late as December 10, 2009, less drawn much criticism due to its opaque unless TRC promised various community than one week before the council’s vote. negotiation process and the questionable benefits. That summer, Bronx Borough Indeed, Diaz explicitly trumpeted his ef- enforceability of its promised community President Ruben Diaz Jr. entered the fray, forts to negotiate on behalf of the com- benefits, it is likely the New York CBA that drafting a model CBA with KARA, the lo- munity, declaring that “I am proud of is least susceptible to constitutional chal- cal community board, and other elected of- the work that my office did to negotiate a lenges. It is difficult to see how the CBA’s ficials. Among other requested community strong community benefits agreement for negotiation and signing could be plausi- benefits, the draft included a provision that this project” before complaining that the bly described as a state action. The gov- all retail tenants would be required to pay final terms offered by TRC “fall short of our ernmental bodies that approved of the a living wage to their employees. However, stated goals.” Additionally, the government Atlantic Yards project, the ESDC and PACB, TRC declared that a living wage require- also “exercised coercive power” through do not appear to have compelled FRC to ment was a “deal killer,” as it would make it its repeated threats to reject the develop- negotiate a CBA either through encour- impossible for the developer to find tenants. ment project in the absence of a CBA that agement or coercion; they did not act in While TRC and KARA engaged in negotia- included living wage provisions. While concert with those negotiating the CBA; tions toward a CBA, the living wage issue Diaz appears to have been the first elected and they were not entwined in the con- proved an impasse. official to explicitly demand a living wage trol or management of the coalition that Throughout the Uniform Land Use promise from TRC, the City Council’s Bronx did negotiate the CBA. While Bloomberg Review Process, pressure to sign a CBA delegation had openly signed on to Diaz’s supported and signed the CBA, he did so weighed heavily on TRC. Early in the pro- threat by the time of the council vote. When “acting merely as a witness” rather than a cess, the local community board voted KARA and elected officials from the Bronx party to it. Both the New York City Law De- to approve the project contingent on the failed to extract a living wage agreement partment and FRC have adamantly denied signing of a CBA, while Diaz disapproved from TRC, they ensured that the develop- that the mayor played any significant role of the project due to the continued ab- ment project would be rejected. in its negotiation. Indeed, immediately sence of a CBA. CBA negotiations contin- following the signing ceremony, a lead- ued until the eve of the City Council vote, michael nadler became interested in coming opponent of the development project with Diaz and KARA ultimately rejecting munity benefits agreements while working criticized both Bloomberg and Public Ad- a last-minute proposal that would have on two CBA-related papers as a research vocate Betsy Gotbaum for their hands-off created a fund to boost the salaries of ten- assistant at the Furman Center for Real Es- approach. Additionally, the local Com- ants’ employees, but would stop short of tate and Urban Policy. Vicki Been ’83, Boxer munity Board chairs, appointed govern- including a living wage requirement in Family Professor of Law, and Clayton Gil- ment officials, claimed that they had been the CBA itself. On December 14, 2009, the lette, Max E. Greenberg Professor of Con- excluded from the negotiation process as City Council overwhelmingly voted to re- tract Law, provided advice on the paper, well. Thus, the Atlantic Yards CBA negotia- ject TRC’s development project. Bloom- originally written for their Law of New York tion process appears to be an apt example berg vainly vetoed the council’s vote, as City Seminar. A longer version of the note, of a “private action [that] is immune from the council subsequently voted by an even which received first prize in the American the restrictions of the Fourteenth” and greater margin to override his veto. Both Planning Association’s annual Smith-Bab- Fifth Amendments. TRC and KARA attributed the negotiations’ cock-Williams Student Writing Competition, failure to the dispute over the living wage appeared as “The Constitutionality of Com- kingsbridge armory (bronx, ny) provision, despite TRC’s offer of other munity Benefits Agreements: Addressing the Prior to 2009, the threat of the city gov- community benefits. Exactions Problem” in the Spring 2010 issue ernment rejecting a development project TRC’s experience with Kingsbridge Ar- of the Urban Lawyer. because the developer refused to provide mory appears to fall within several of the Nadler, who graduated as a Florence Al- community benefits was entirely theoreti- exceptions to the State Action Doctrine, len Scholar and a member of the Order of cal, as no developer had refused to do so allowing KARA’s actions to be considered the Coif, served as an articles editor of the when pressured by city officials. The Re- those of a government actor. First, KARA NYU Annual Survey of American Law. Now lated Companies’ (TRC) experience with the was a “willful participant in joint activity a litigation associate at Paul, Weiss, Rif- Kingsbridge Armory, however, proved that with the State or its agents,” rather than a kind, Wharton & Garrison, he previously the municipal government was, in fact, will- purely private actor engaged in negotia- worked in the Office of the U.S. Attorney for ing to back up its words with action. The re- tions. Unlike Ratner’s experience with the the Southern District of New York and the jection of TRC’s project has put all New York Atlantic Yards CBA, TRC was not simply Office of the Manhattan Borough President, City developers on notice that the city’s de- negotiating with a coalition of local labor, and also advised former Representative Mi- mands cannot be viewed simply as political church, and community groups, but sitting chael McMahon’s Congressional campaign.

96 NYU SCHOOL OF LAW Around the Law School

Mere weeks after the death of Osama bin Laden and with the 10th anniversary of the 2001 attacks loom- ing, Janet Napolitano, U.S. Secretary of Homeland Security, delivered “Strength, Security, and Shared Responsibility: Preventing Terrorist Attacks a Decade After 9/11,” a sweeping lecture in which she discussed the evolving challenges of counterterrorism. around the law school But Margaret Lewis ’03, associate professor at Seton Hall University School of Law, The State of Chinese Law said that a series of high-profile wrongful convictions covered by non-state media and blogs has made the need for reforms impossible for the government to ignore. At the same event, Cynthia Estlund, Catherine A. Rein Professor of Law, reported that worker discontent remains high despite labor law reforms in 2008. “Chinese workers have long faced grueling hours and low wages and hazardous and degrading conditions,” she said. “But in the last decade, workers have been increasingly willing to take to the streets to publicly protest those conditions.” Workers going through official channels are often frustrated, she said, but the government is beginning to focus more on workers’ welfare, and unions might become a greater force. Cohen, Belkin, and Orlins Other China-related events at the Law School included a lecture on judicial de- he rapid modernization of the slow progress in legal reform. “All the social cision-making by Ling Li, senior research Chinese economy is spurring change progress spawned by economic develop- fellow at the U.S.-Asia Law Institute and T in the country’s legal system, too. ment is only creating more and more ten- assistant professor at Northwest Univer- This transformation, which touches on sions and problems,” said Cohen. “This is sity of Political Science and Law in China; labor law, human rights, criminal law, and not unique to China. Modernizing states a panel discussion of human rights abuses the justice system, was the topic of two that modernize too rapidly, including Iran moderated by Samuel Estreicher, Dwight D. important discussions hosted or co-hosted under the shah, see many tensions develop.” Opperman Professor of Law and director of by the U.S.-Asia Law Institute this past year. Frank Upham, Wilf Family Professor the Center for Labor and Employment Law; “Coerced Confessions and Wrongful Con- of Property Law, observed that, in an at- and a two-day conference on criminal jus- victions in the People’s Republic of China,” tempt to achieve both rule of law and a tice and the constitutional court in Taiwan, co-hosted by the National Committee on harmonious society, the country steps back featuring faculty and students from the United States–China Relations in April, fo- whenever a political controversy arises. National Taiwan University. cused on the Chinese government’s year- old rule allowing criminal defendants to ask that their confessions be excluded if they can prove the confession was coerced. Stephen Orlins, president of the National Committee; Professor Jerome Cohen; and featured speaker Ira Belkin ’82, a former federal prosecutor and now program officer for law and rights at the Ford Foundation in Beijing, questioned how much the criminal justice system had really changed as a result. The new rule, introduced after a man spent 10 years in prison for the murder of a neighbor who later turned up alive, didn’t necessarily address the root of the problem, Belkin argued, since citizens still lack a right to silence and the rule excludes only coerced confessions that turn out to be false. “It’s hard to understand how the police would be deterred when there are no consequences for coercing a true confession,” he said. “The rule itself appears to opening ceremony: Trustees Leonard Wilf (LL.M. ’77) and Mark Wilf ’87 cut the ribbon contain some advances, but in my view re- on the Law School’s newest building, Wilf Hall, which they generously underwrote. ally doesn’t go far enough.” Located at 139 MacDougal Street, Wilf Hall was designed and constructed to platinum- In September, Cohen moderated a panel level specifications of the U.S. Green Building Council’s Leadership in Energy and Environ- discussion at the 16th annual Timothy A. mental Design and houses a dozen centers, programs, and institutes, plus an admissions Gelatt Dialogue on the Rule of Law in Asia welcome desk. Cool features include a green roof and terraces, and bike storage space. that generally focused on the frustratingly

98 NYU SCHOOL OF LAW around the law school Fighting the Cults of Gender capping off a daylong symposium in Greenberg Lounge celebrating the New York State Judicial Committee on Women in the Courts’ 25 years of helping female litigants, attorneys, and court employees, feminist icon Gloria Steinem called on women to shed gender stereotypes and take control of their future. “Democracy starts with our bodies,” she said. In her speech—read by Jill Laurie Goodman ’75, the committee’s counsel, because of an illness that made it difficult for Steinem, who sat nearby, to speak that day—Steinem urged lis- Napolitano with Dean Richard Revesz, left, and Brennan Center Executive Director Michael Waldman ’87 teners to stop mistaking prostitution for sexuality. “Does each of us have a right to sell our own body? Yes,” she said. But, she added, in nearly 40 Counterterrorism Still the years of speaking with prostituted women, children, and men, she’d met few who had acted for a reason other Top Post-9/11 Challenge than fear, economic need, or abuse hen u.s. secretary of home- individual citizens, while most of the oth- leaving them with little self-worth. land Security Janet Napolitano ers were halted with the aid of state and Later, drawing a link between so- spoke at NYU School of Law in local law enforcement. National security ciety’s ideas about gender and vio- W June, she observed that her talk begins locally, and if citizens see some- lence, Steinem argued that a “cult of fell between “two focusing events”: the thing unusual, they should say something— masculinity is in the heart of terror- death of Osama bin Laden and the 10th anni- echoing the campaign, she noted, that’s ism, whether in the home as domes- versary of 9/11. Yet, she notes, even though promoted by New York City’s Metropolitan tic violence or in the street as political the U.S. is stronger than it was on 9/11, ter- Transportation Authority. violence.” This fiction of masculinity rorism remains a real and evolving threat. This vigilance can co-exist with re- is supported by the cult of femininity, In a sweeping speech entitled “Strength, spect for personal liberty, Napolitano said: she added: “We must take responsi- Security, and Shared Responsibility: Pre- “There is a false dichotomy if you say we bility for our failure to name it, to re- venting Terrorist Attacks a Decade Af- have to sacrifice liberty for security. We sist it, and to rebel. When violence is ter 9/11,” delivered at the invitation of the don’t. We just have to think about them at normalized and disguised as sexual- Brennan Center for Justice, Napolitano the same time and look for common-sense ity, we must all name that lie.” discussed the many challenges tackled and pragmatic ways to make sure that by the Department of Homeland Secu- both are being pursued.” What’s more, she rity, including border security and natu- added, policing beliefs or profiling based ral-disaster response. Chief among them: on religion or ethnicity is a futile exercise. counterterrorism. In conclusion, Napolitano emphasized Today, terrorism plots, which are increas- the ongoing nature of the efforts to keep ingly being hatched by Americans rather the nation secure. “We need as a country to than outsiders, are becoming harder to de- keep adapting, to think ahead, to be nimble tect, Napolitano noted. Key national security and to be adaptive as individuals, as com- players must work together and share infor- munities, and as a nation,” she said. “We mation to successfully prevent attacks, she have made great strides, but, even given said, because, most important to note, the that, we cannot provide guarantees. And federal government alone cannot protect the while all the things I’ve discussed with country. The states, local law enforcement, you today are steps forward, we will never first responders, the private sector, and indi- put this country under a kind of glass dome vidual Americans also play a role: “Everyone and seal it against all threats.” Along with has a stake in the safety of our people.” this foresight, she added, we must have In fact, between 1999 and 2010, Napoli- confidence that American communities tano said, a third of foiled domestic ter- can respond and recover quickly: “It’s with rorist plots were stopped with the help of that kind of confidence that we proceed.”

WWW.LAW.NYU.EDU 99 around the law school Italy’s Past and Future, and the E.U. resident giorgio napolitano has devoted his life’s work to Italy. A P member of the Italian Chamber of Deputies from 1953 to 1996 (with the excep- tion of one term), he was made a senator for Coomaraswamy Goldstone life in 2005 and elected president in 2006. In March, the 85-year-old statesman sat down with University Professor Joseph Weiler at the seventh annual Emile Noël Lecture for The Accountability Gap a free-ranging discussion of the challenges as the sheer number of human where we won’t attempt to find out what facing his continent. rights investigations and fact-finding took place,” said Coomaraswamy, U.N. Spe- A strong advocate for cooperation be- H missions created the false impres- cial Representative for Children and Armed tween left and right, Napolitano said Italy’s sion that the perpetrators of atrocities are Conflict, and, as with Goldstone, a former biggest difficulty today is extreme parti- being held accountable for their acts? That Hauser Global Professor. “Accountability is sanship. “My first question was put to Richard Goldstone and much more complicated.” One problem is duty is to put the Radhika Coomaraswamy in a talk hosted a perceived double standard, Coomaras- emphasis on what last November by the International Center wamy noted. While there is international unites Italy, not on for Transitional Justice (ICTJ) about “The political will to investigate alleged atroci- what divides Italy,” Dilemmas of Human Rights Fact-Finding.” ties in Darfur, for example, why is there he said, “and to re- “The proliferation of fact-finding com- none to pursue the regime in Myanmar? call all Italians, all missions is an impressive symptom of the Goldstone knows how complicated poli- political parties, huge development of international law, tics and accountability can be. As the head all social forces to starting with Nuremberg,” said Goldstone, of the U.N. Fact Finding Mission on the the necessity of a a former judge in South Africa and chair- Gaza Conflict, he ignited a firestorm after certain acceptable and effective degree of man of the Goldstone Commission that concluding that both Israeli and Hamas national cohesion.” investigated political violence during the militants committed war crimes in Gaza Napolitano also reflected on the Euro- country’s transition from apartheid. “This in 2008 and 2009. (In an April Washington pean Union’s current troubles, with de- should be seen in a positive light.” Post op-ed, he retracted some of his find- creasing voter turnout and the failure of its Moderator David Tolbert, president of ings.) Nonetheless, Goldstone pointed original constitutional treaty. “European the ICTJ, challenged both speakers to ex- out at the ICTJ event, militant groups now institutions have become a very comfort- plain why the explosion of fact-finding mis- know their actions can constitute an inter- able scapegoat for national problems,” he sions has failed to land more war criminals national crime, and the Israeli military is said. “The national political leadership has in international court. The answer, they investigating some officers: “I’m not opti- the moral duty to tell the truth about what conceded, is politics. But that doesn’t mean mistic that the fact-finding mission will go its responsibilities are and what the respon- the investigations haven’t served a purpose. further in the international arena, but it is sibilities of European institutions are.” “We really cannot have a conflict anywhere still resonating in the area.”

When States Fail Their People, the World Must Step In he u.n.’s first woman under- murder, and torture in 2010, for example, slavia, Rwanda, Sierra Leone, and Leba- secretary-general for legal affairs is a cooperative effort of the U.N. and non: “Without the rule of law, the lines T and legal counsel made a strong the national government. More than between justice and tyranny can case for the key role the United Nations 30,000 Cambodians traveled dissolve or disappear altogether.” plays in promoting international law. to Phnom Penh to be in or O’Brien, who came to the “There is always a terrible tension between near the courtroom—a sign, U.N. from Ireland in 2008, the need of the international community O’Brien said, of how impor- consults daily with Secretary- to get involved in state affairs and the tant the court’s work is to the General Ban Ki-moon and ad- need to respect sovereignty of states,” people: “It has become, in my vises on issues related to war, said Patricia O’Brien, in a February view, the catalyst for the humanitarian aid, and treaties. speech at the Hauser Global Law School rule of law within the “International law lies at the Program Annual Dinner. But when states entire country.” very heart of what the fail to take care of their people, she said, O’Brien also secretary-general is the international community must assist. praised the Inter- committed to do- The special Cambodian court that national Criminal ing for the United convicted Khmer Rouge leader Com- Court, citing the Nations,” said rade Duch of crimes against humanity, tribunals for Yugo- O’Brien.

100 NYU SCHOOL OF LAW around the law school The Tragedy Next Door n march 25, hundreds gathered ladders to span the gap between buildings. on the corner of Washington Place The students “worked like beavers, appar- and Greene Street to commemo- ently never giving a thought to the possibil- O rate the centennial of the Triangle ity that their own building might catch fire,” Shirtwaist Factory fire tragedy, which Sommer told the New York Times that day. claimed the lives of 146 workers and inspired “How it was done I don’t know, but in sur- the first real labor laws in the United States. prisingly short time about fifty girls were Among the crowd were current NYU Law brought across the ladders to safety.” students and professors joining union mem- Arieh Lebowitz, associate director of the bers, local and national political leaders, Jewish Labor Committee, who was taking and relatives of the victims. part in the commemoration, said: “Before Some remember that, thanks to NYU the fire there were no sprinklers, no limit The Long Fight Law students and their professor, the death on maximum number of hours a person toll that day wasn’t even higher. As the hor- can work, no ban on overnight shifts, no for Workers’ rific fire engulfed the top floors of the fac- age restrictions, and no fire drills or fire -ex tory, workers, mostly young immigrant its.” The legal influence of the tragedy is so Rights Jewish and Italian women, found them- wide and far-reaching that the NYU Journal selves trapped. In the building next door, of Legislation and Public Policy is preparing Looking back at more than half a cen- Professor Frank Sommer and his students an upcoming special issue on the subject to tury of fighting for low-wage workers, women, and children, longtime labor took action, climbing to the roof and using mark the centennial. advocate Dolores Huerta urged students to support wider equality. “If we don’t have a strong working class, if we don’t have strong labor unions,” she said in the 17th annual Rose Shein- berg Lecture in October, “we don’t have a democracy.” Huerta, who co-founded United Farm Workers of America (UFW) with César Chávez, has played a role in key workers’ rights victories, including the California Agricultural Labor Relations Act and the federal Immigration Re- form and Control Act of 1986, which granted amnesty to 1.3 million workers. Her visible energy belying her oc- togenarian status, Huerta recalled her four-year stint in New York City leading a UFW grape boycott on behalf of workers who had been denied toi- lets, drinking water, and rest periods. She pointed to racism as the primary cause of today’s anti-immigrant sentiment. Recent crackdowns have been applied selectively, she said: “They’re aimed at those of us who happen to be people of color.” Senator Now president of the Dolores Charles Schumer Huerta Foundation, which brings together immigrants, the LGBT community, feminists, environmental activists, and labor rights advocates, Huerta t o shared her connection to the country’s

P Pho most famous community organizer: President Barack Obama. His “Yes we can” campaign slogan, she said, is a t ory fire: A translation of “Sí, se puede,” a phrase she coined in 1972 during a protest t fac fast by Chávez. “When I met President wais t Obama,” Huerta recalled, “he said to me, ‘I stole your slogan.’ And I said, ‘Yes you did.’” Mayor Michael Bloomberg Triangle shir

WWW.LAW.NYU.EDU 101 around the law school Safeguards for the Next Crisis On the eve of his retirement from a congressional career that spanned more than three decades, Senator Chris Dodd reflected on the measures lawmakers have taken to protect consumers in their dealings with financial services firms, in particular the Dodd- Frank Act, which, among other things, established the new Consumer Finan- cial Protection Bureau. As keynote speaker at the 2010 Global Economic Policy Forum last October, the former chairman of the Senate Banking Committee offered glimpses into the legislative battle to pass Dodd-Frank, including the wheeling and dealing Law in the “Post-Racial” Era needed to overcome stiff Republi- can opposition to a number of provi- wo years after the election of black over another,” he said. “It’s not total sions. “We cannot legislate against the nation’s first African-American exclusion. It’s rather selective exclusion.” crisis,” Dodd said. “But what we can T president, race continues to pose Turning to the topic of racial preferences, do—what I hope we have done—is challenges for the legal system. Those prob- Carbado suggested that the courts, which to build safeguards for the American lems were the subject of the 15th annual now apply a strict scrutiny framework in people, so they know that they won’t Derrick Bell Lecture on Race in American assessing the constitutionality of those get ripped off or see the economy col- Society, “After Obama: Three ‘Post-Racial’ policies, incorrectly assume that affirma- lapse around them.” The event was Challenges,” by Professor Devon Carbado tive action is a thumb tipping the scale. But co-hosted by the Jacobson Leader- ship Program in Law and Business, of UCLA School of Law last November. that ignores preexisting “tipping” of some Pollack Center for Law and Business, Often missing in contemporary dis- groups against others, he added. and Center for Financial Institutions. cussions of race, said Carbado, is the is- Carbado also took on the concept of sue of discrimination within racial groups. color blindness—the idea that people Phenotype and ancestry are not the only should not see race (even if they do) in or- factors in racial mapping, he said. Dress, der to achieve “race neutrality.” However, religion, level of assimilation, and speech stripping personal stories of anything that can also trigger harmful stereotypes and would potentially identify race robs the support the idea of “degrees of blackness.” narrative of its meaning, he said. “Engag- (A 2007 Time headline asked, “Is Obama ing the three problems as I posed them at Black Enough?”) Even if both candidates least engenders a rethinking about some for a job are the same race, discrimination of our most fundamental assumptions of can still occur. “The question is not whether race,” Carbado concluded, “and that, I’m an institution might prefer white over black hoping, will open up doctrinal space for but whether an institution might prefer one more antiracist possibilities.” An Abysmal Win-Loss Record for Asian-American Trials judge denny chin of the fendants, Asian Americans Some of the examples Judge Chin U.S. Court of Appeals for the have an “abysmal” record of described, however, took place during or Second Circuit illuminated winning favorable verdicts, after World War II. He detailed the trial the legal history of Asian Chin said. Among other ex- of Iva Toguri D’Aquino, who was convicted Americans in the 12th annual amples, he described the of treason in 1949 for allegedly broad- Korematsu Lecture, “Great multiple trials for the bias- casting anti-American propaganda over Asian-American Trials,” last motivated beating death Radio Tokyo under the notorious moniker March. Students in constitu- of Vincent Chin in 1982, for Tokyo Rose. After proof emerged decades tional law courses are exposed which the defendants received later of perjured testimony, Gerald Ford to some of the most famous ex- no jail time. The Asian-Amer- pardoned D’Aquino on the last full day amples—including the Chinese Exclusion ican community responded with public of his presidency. ue Kim

Act and Korematsu v. United States—but rallies for justice, leading to new sentenc- “The arc of justice sometimes bends un- hin: S Chin went into greater detail in his lecture. ing procedures and the increased applica- der the pressure of national crisis,” said

Whether as victims of crimes or as de- tion of civil rights laws to Asian Americans. Chin. “We must do better.” Dennis C

102 NYU SCHOOL OF LAW around the law school Thrust into the Spotlight Tackling the Great Issues of Our Time he need for good people—people “ with integrity, common sense, T experience, dedication—in public service has never been greater,” said Massachusetts Attorney General Martha Coakley. “We need our best and brightest, not just as an abstract principle, but as a commitment that we make to each other about how this democracy is going to work.” Coakley, who left private practice 25 years ago to work in government, spoke at the 14th annual Attorney General Rob- ert Abrams ’63 Public Service Lecture last Guarini, Barofsky September of the demand for public service–minded lawyers. She also reflected o one was more surprised than (“irresponsible headline hunter,” said New on her experiences with child abuse cases. Neil Barofsky ’95 when he was York Times correspondent Floyd Norris). Five years after joining Massachusetts’ tapped to oversee the government’s “We have wide authority to conduct the Middlesex District Attorney’s Office, Coak- N $700 billion bailout fund in 2008. necessary oversight civilly and criminally ley was appointed chief of the Child Abuse In the eight days after Barofsky learned of and to report to the American people— Prosecution Unit in 1991. She worked to im- George W. Bush’s interest in him, the then- the taxpayers, the involuntary investors prove techniques for interviewing children, assistant U.S. attorney for the Southern in this program—exactly what’s going on ensure victim safety, and change public District of New York interviewed at the with their money.” His office had charged perception about abuse cases. “There are White House and Treasury Department, 45 people with TARP-related fraud and had few things worse than a false claim of child and Bush officially recommended him. He recovered or prevented losses of more than abuse,” Coakley said. “They were the tough- became a national figure almost overnight. $700 million, said Barofsky. est cases in the world because you were in Barofsky was the inaugural speaker for Shortly after the event, Barofsky would trouble if you didn’t indict, and you were the Guarini Lecture last January. Part of announce he was stepping down, and in in trouble if you did and got it wrong.” the Public Interest Law Center’s Leaders March 2011 he would join NYU Law as se- in Public Interest Series, the event also of- nior fellow and adjunct professor. So in ficially launched the Frank J. Guarini Gov- retrospect, it was touching for him to credit ernment Scholars Institute, which aims to Professor Bryan Stevenson and Adjunct help NYU Law students build government Professor S. Andrew Schaffer for inspiring careers in public service. him to pursue public service. “You can be a Barofsky discussed how great criticism little selfish about public interest,” Barofsky comes with great power. He self-deprecat- said. “It’s not just about giving back—which ingly cited dubious honors (first on the Wall is so important—but you can do it because Street Journal’s “Who Wall Street Hates the it’s something that you love. Because it Richard Revesz, Coakley, Abrams Most” list) and disparaging comments makes the day go much more quickly.”

In addition to Barofsky’s and Coakley’s lectures, other events in the Leaders in Public Interest Lecture Series were:

“Pursuing Public Service,” “Living a Life in Legal “Social Change “Is Social Justice Best “Striking the Balance in U.S. Representative Services,” Chris Lamb Through the Law,” Promoted by Being a HIV Law: Protecting Civil Diana DeGette ’82 ’86, Executive Director, Anthony Romero, Prosecutor or Public Rights and Saving Lives,” MFY Legal Services Executive Director, Defender?” Robin Rose Gasner, Deputy “Using the Master’s ACLU Steinberg ’82, Executive General Counsel, NYC Tools: How Law School “Expect the Unexpected: Director, the Bronx Department of Health; Prepares You to Change The Musings of a “Small Organizations Defenders; Nigel Hayley Gorenberg ’92, America,” Sally Kohn Department of Justice Can Do Big Things: Farinha ’92, Deputy Deputy Legal Director, ’02, Founder and Chief Lawyer,” Gail Johnson, Juvenile Justice and Chief, Manhattan Dis- Lambda Legal Education Officer, Senior Trial Counsel, Child Welfare Reform,” trict Attorney’s Office Movement Vision Lab U.S. Department of Lourdes Rosado ’95, “Tiny Ripples of Hope: Justice, Torts Branch, Associate Director, “Ending Poverty: The Lawyers in Public “Confronting Injustice,” Civil Division Juvenile Law Center Lawyer’s Role,” Alan Service,” Judge Amul Professor Bryan Steven- Houseman ’68, Execu- Thapar, U.S. District son, Executive Director, tive Director, Center for Court for the Eastern Equal Justice Initiative Law and Social Policy District of Kentucky

WWW.LAW.NYU.EDU 103 around the law school The Trial of Jesus in his three-part lecture series on Jesus of Nazareth, University Professor Jo- seph Weiler noted that at least 400 books focused solely on the trial have been published. He called Jesus’s appearance before the Sanhedrin “arguably the most famous trial in Western civilization” and asserted that verifying the historical accuracy of the trial’s details is much less important than examining the influence of the New Testa- ment version of the event on latter-day per- ceptions of justice. Weiler launched “The Passion of the Christ: The Trial of Jesus” by examining procedure and considering the cultural Henry with Norman Dorsen, director of the Madison Lecture Series significance of the trial. In his second lecture, he focused on the trial’s sub- Examining Justice Harlan stance in looking at .s. supreme court justice john decisions.” The justice’s dissent in Poe exactly what Jesus Marshall Harlan II, a conservative- v. Ullman (1961), for example, laid out his was accused and U leaning justice who concurred in support of a broader reading of the 14th convicted of, as some of the more progressive opinions of Amendment’s due process clause, but not well as the theolog- Weiler the Warren Court, was the subject of the an unfettered interpretation. Harlan char- ical implications 42nd James Madison Lecture last October. acterized the method as part of a balancing of the proceedings. In the third and final In an address on constitutional originalism, act between individual liberties and soci- lecture, Weiler examined the trial’s after- Robert Henry, former chief judge of the U.S. etal demands, and described “judgment math in terms of its subsequent historical Court of Appeals for the 10th Circuit and and restraint” as vital when weighing lit- significance for the relationship between now president of Oklahoma City University, eral text and living legal traditions. Jews and Christians. He also touched on examined Harlan’s jurisprudence. Harlan was confident, Henry said, “that questions of identity, guilt, and collective “In one important sense, Justice Har- good judges can, as they have for centuries, responsibility. lan could be thought of as an originalist,” exercise their authority in a principled, re- The lectures, part of the Tikvah Public Henry said. “He believed that his approach strained way without requiring an ahistori- Lecture Series, were presented by the Tik- was both faithful to the principles of the cal, formal rule to constrain them. Justice vah Center for Law & Jewish Civilization, of nation and more likely to lead to just Harlan was living our traditions.” which Weiler is co-director. A Challenge to the Health Reform Act n the same october day that Florida Judge Roger Vinson of Federal O District Court denied the Obama administration’s motion to dismiss a lawsuit challenging the constitutionality of the Patient Protection and Affordable Care Act, citing an NYU Journal of Law and Liberty article by Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Religion and Georgetown University Law Center, Barnett spoke at NYU School of Law on the part of Charity the law that’s at the heart of the legal battle: the health insurance mandate. Gary Anderson, a joint fellow at NYU The individual mandate requires ev- Law’s Straus Institute for the Advanced eryone who can afford to buy insurance Study of Law & Justice and Tikvah Cen- ter for Law & Jewish Civilization, pre- to do so, thus, asserts Barnett, compelling sented the ninth annual Caroline and Jo- citizens to engage in economic activity. In seph S. Gruss Lecture, “I Give Therefore the sixth annual Friedrich A. von Hayek Supreme Court decisions relating to both I Am—The Meaning of Charity in Jewish Lecture, “Commandeering the People: the commerce and necessary and proper and Christian Thought,” last April. Popular Sovereignty and the Health Insur- clauses, and concluded that the mandate ance Mandate,” Barnett examined historic is unauthorized and unconstitutional.

104 NYU SCHOOL OF LAW around the law school Ridding Cities of Crime Above the Law? Employing a controversial policing technique or being dictators are bullies. but as shocked into action, urban crimefighters share what works. former Egyptian President Hosni Mubarak demonstrated this year, hat does it take to bring down that last year we recorded the lowest level they are bullies with the power to urban crime? Two of today’s lead- of crimes [since 1963].” create their own reality and believe W ing voices on the topic, New York A month earlier, Booker described how their own lies. “Trying the Tyrants: City Police Commissioner Raymond Kelly he successfully delivered on his promise The Trials of Slobodan Milosevic and (LL.M. ’74) and Newark to reduce crime in a city Saddam Hussein,” a February panel Mayor Cory Booker, long known for violence discussion co-sponsored by the In- shared insights last fall in its streets. stitute for International Law and Jus- on what works, in lec- A notorious triple ho- tice, explored why bringing a dictator tures that kicked off the micide in a city school- to justice is challenging. “They made “Conversations on Urban yard in August 2007 the law, they were the law, they were Crime” series at the Center proved to be a turning above the law,” said Judith Armatta, on the Administration of point, Booker said. In a human rights lawyer and author of Criminal Law (CACL). the tragedy’s aftermath, Twilight of Impunity: The War Crimes Kelly, called a “living local foundations pro- Trial of Slobodan Milosevic. legend in law enforcement” vided funds for public Armatta was joined on the panel by CACL Executive Direc- safety cameras and other by Patricia Wald, a former judge on tor Anthony Barkow in Booker crime-detection technol- the International Criminal Tribunal his introduction, has pre- ogies, community lead- for the former Yugoslavia, and Jen- sided over a dramatic drop ers stepped up to do more, nifer Trahan, an NYU assistant clini- in crime since taking over and area law enforcement cal professor who consulted on the the city’s police force. In agencies began to coordi- prosecution of Saddam Hussein for his November talk, Kelly nate information more the International Center for Transi- spoke of the crime-fight- effectively. tional Justice. Lisa DiCaprio, an NYU ing strategies the NYPD The city also launched clinical associate professor of social has relied on during a a project in which law sciences, moderated the discussion. time when the risk of ter- firms offer pro bono legal Milosevic and Hussein flagrantly rorism has escalated, the assistance to people be- used the court as a platform to make economy has deteriorated, ing released from prison, their case, and both became ad- and the police force has which has helped improve ept at manipulating the media. The shrunk by some 6,000 of- Kelly certain recidivism rates. judges’ failure to clamp down prob- ficers since 2001. “The more innovative we ably added years to the Milosevic pro- One of the department’s most contro- can be in looking at the criminal justice ceedings. (Milosevic died of a heart versial crime suppression tactics is what’s system as a whole,” Booker said, “the more attack four years into the trial.) “In known as “stop and frisk.” While critics difference we can make.” the Saddam Hussein trial, every time claim it leads to racial profiling and that While acknowledging the reductions in he got up and walked out, screaming iller iller minorities are stopped at an inappropri- violent crime, Booker maintained that no and yelling and boycotting, the press M k ately high rate, Kelly denied those claims level of violence is tolerable. Yet, the man covered it,” said Wald. “They never ran and vigorously defended the approach: “I who has led New Jersey’s largest city for covered the times when he actually

uniz: F uniz: believe there is a direct relationship be- four years added, “I’m actually more hope- obeyed what the judge said to do.” M

De tween the stops we conduct and the fact ful than I’ve ever been.”

Activism and State Courts Paul J. De Muniz, chief justice of the Oregon Supreme Court, delivered the 17th annual Justice William J. Brennan Jr. Lecture on State Courts and Social Justice last October. De Muniz’s talk, “Overturning Precedent: The Case for Judicial Activism in Reengineering State Courts,” addressed measures court officials need to take to cope with burgeoning dockets and shrinking budgets. State court systems today, said De Muniz, are regarded as “too big, too costly, and too cumbersome” and need to change if they hope to maintain their fiscal and institutional independence. Wald

WWW.LAW.NYU.EDU 105 around the law school One Family, Three Political Beliefs Nobel Peace Prize winner Shirin Ebadi, co-founder of the Defenders of Human Rights Center in Iran, discussed her memoir, The Golden Cage: Three Broth- ers, Three Choices, One Destiny, with Kar- Winship, Bonner, Kimball, Vice Dean Jeannie Forrest, Sharpe, and Anderson en Greenberg, executive director of the Center on Law and Security, which co- hosted the talk Making Transgressors Pay with the Kev- orkian Center ne year after the bp deepwater examined past precedents, with Winship for Near East Horizon oil spill in the Gulf of Mexico, discussing Supreme Court cases over the Studies at NYU. O the 10th biennial Nicholas J. Healy past couple of decades that have dealt with Ebadi wrote of Lecture on Admiralty Law asked, “What Is punitive damages in maritime law and a family that the Limit?” regarding punitive damages in Anderson focusing on punitive damages has a daughter maritime law. Speakers included Charles assessed in oil pollution cases. The event and three sons. Anderson, head of Skuld North America was moderated by Patrick Bonner, presi- “One of the sons and adjunct professor at Columbia Law dent of the Maritime Law Association of is a nationalist, one is a Communist, School, and Peter Winship, James Cleo the United States; John Kimball, adjunct and one is an Islamist,” said Greenberg. Thompson Sr. Trustee Professor of Law professor at NYU School of Law; and David “And the building tensions between at the Southern Methodist University Sharpe, professor emeritus at the George these sons pull the family apart.” Dedman School of Law. The speakers Washington University Law School. When the U.S. Shares Tax Returns with Other Governments on march 22, michael danilack (ll.m. ing the individual or corporation. The au- that taxpayers should know when their in- ’90), deputy commissioner of the Internal dience took issue with the government’s formation is being shared,” he said. The IRS, Revenue Service’s Large Business and In- argument and debated the intentions of Danilack added, notifies a taxpayer when ternational Division, delivered the 11th information sharing. another government asks for information. annual NYU/KPMG Tax Lecture. In “In- Danilack said the U.S. government But he also conceded that if the foreign creasing Transparency in the U.S. Self- deals only with governments that intend to government specifically asks that the IRS Assessment Tax System: A Paradigm Shift,” use the information for legitimate auditing not notify the taxpayer under investigation, Danilack focused on greater disclosure by purposes. “We’re sensitive to the argument it will comply. taxpayers to the IRS on their tax returns, especially concerning offshore bank accounts and uncertain tax positions. He received some heat when he took the posi- The Art of Incorporation tion that the U.S. government has the right Wayne Perry Professor of Taxation Daniel away in July 2010. “Paul’s contribution to to share its taxpayers’ return information Shaviro delivered the 15th annual David R. this program was just immeasurable,” said with foreign governments without notify- Tillinghast Lecture on International Taxa- Rosenbloom. “He was an absolute giant in tion last September. In “The Rising Tax- this field, and I want to honor his memory, Electivity of U.S. Corporate Residence,” his contribution, and my profound respect Shaviro explored the tension that exists for everything he did.” between the U.S. system of worldwide taxation on resident corporations and the ease with which companies can decide to incorporate domestically and abroad. H. David Rosenbloom, director of the International Tax Program, introduced

Shaviro and acknowledged the lecture’s ori namesake, David Tillinghast, a partner at Baker & McKenzie and a preeminent rancois M rancois

international tax expert. Rosenbloom F o/

also took a moment to remember Paul t McDaniel, the first faculty director of the Rosenbloom, Shaviro

International Tax Program, who passed Pho A P i: d E ba

106 NYU SCHOOL OF LAW Alumni Almanac

Egyptian opposition leader Mohamed ElBaradei (LL.M. ’71, J.S.D. ’74, LL.D. ’04) rallies protesters two days before President Hosni Mubarak stepped down. In March, ElBaradei declared his own candi- dacy in a presidential election to be held this fall. alumni almanac footedness—all of which make for riveting courtroom performances. Michael Bach- ner, who represented a co-defendant (also acquitted) in the Combs trial, recalls how Brafman “decimated a key witness during a two-hour extemporaneous cross-examination, at the end of which everyone in the courtroom wondered why the prosecution ever even called that witness.” Colleagues say he charms judges, jurors, and opposing witnesses alike with his disarming 5’6” stature and down-to-earth Brooklyn upbringing as well as a self-dep- recating sense of humor, which he culti- vated while doing a short stint as a stand-up comic in his 20s. “Jurors love him,” says Combs, who calls Brafman “Uncle Benny” and gets in touch each year on his trial anniversary. “He has a New York way of connecting with New York jurors. He’s the guy you’d go to a baseball game with, the guy from around the neighborhood.” Speaking to a group of students as the The Defense Never Rests guest at a dean’s roundtable in November, Brafman said: “Natural talent gets you With talent, heart, and hard work, Benjamin Brafman wins somewhere. But it doesn’t mean anything over clients and juries in many, many impossible cases. unless you put in the hours.” (See page 119 for a list of the dean’s guests in 2010–11.) ightclub owner peter gatien family. More mob cases came his way. “I By all accounts, Brafman prepares as- remembers awaiting the verdict cut my teeth on those cases,” Brafman says. siduously for trial. Bachner worked with in his February 1998 federal trial Today, he is one of the best-known de- Brafman in the 1980s on organized crime for promotingN drug dealing at the fense attorneys in the city—and well be- cases that hinged on government wiretaps. popular New York clubs Limelight and the yond. Dominique Strauss-Kahn hired Brafman required him not only to listen to Tunnel. Federal prosecutors had endless Brafman to fight bombshell sexual assault the prosecutors’ tapes (while other lawyers resources, tape recordings, and documents charges that forced his resignation from the would only read the transcript) but also to in their favor, and Gatien feared he didn’t International Monetary Fund this spring. listen to the part when the witness is being have a chance. Standing next to him was Brafman also represented hip-hop/fash- wired up—a strategy that often provides defense attorney Benjamin Brafman (LL.M. ion entrepreneur Sean Combs over his the facts that are the key to victory. Braf- ’79). “It was the defining moment of my life,” alleged role in a 1999 nightclub shooting, man credits his work ethic to his father, Sol, Gatien says. “I was looking at 17 years. Ben and rapper Jay-Z on assault charges. He who spent 40 years working in the garment held my hand, and he was actually shaking.” briefly defended Michael Jackson in a 2004 district. Brafman’s father and mother, Rose, After just two and a half hours of deliber- child molestation trial, and New York Gi- were Holocaust survivors and raised their ation, the jury acquitted Gatien. Onlookers ant Plaxico Burress in a 2008 firearms case. family in an Orthodox home. (many of whom worked in his clubs) burst Although celebrity cases have propelled Brafman earned his B.A. in 1971 from into cheers. He and Brafman hugged, Gatien Brafman into the spotlight, they comprise Brooklyn College and his J.D. in 1974 from recalls. “He lived my trial as much as I did.” just a small portion of a practice that in- Ohio Northern University. He went on to That devotion accounts in large part for cludes white-collar and common criminal get an LL.M. in criminal justice from NYU Brafman’s tremendous success as a defense cases, plus commercial litigation. Among his School of Law. “It was important for me to lawyer. The rest is “a combination of theat- peers he is not viewed as a celebrity lawyer, know that I could dance with the best and rical skills and dogged preparation,” says says defense attorney Andrew Lawler. “Ben not trip,” he says, explaining why he sought New Yorker legal affairs staff writer Jeffrey is someone to go to because you have a prob- a degree specifically from NYU Law. Toobin, who insists that Brafman is the best lem and you’re looking for a good lawyer.” Brafman says his faith and family keep courtroom lawyer he has ever witnessed. That good lawyering starts with fierce him grounded: “I have a solid, happy per- Brafman first attracted notice in the loyalty to his clients. “He gives them his sonal life, which makes me a better lawyer.” 1970s as an assistant district attorney in blood and guts,” says colleague Robert He and his wife of 38 years, Lynda, are close

the Manhattan D.A.’s office. Itching for Katzberg, whose firm, Kaplan & Katzberg, to their two children and grandchildren. H amra/ Khalil trial experience, he took any and all cases, shares a floor with Brafman & Associates He is also active in a number of charities, including the long shots. He tried 24 cases in an East Midtown office tower. Katzberg including Kulanu, a Jewish school for dis- over a four-year period and lost only one. In says that Brafman’s clients respond in kind, abled children, and the Israel Cancer Re- 1985, with a practice of his own, he won an with one even naming his son Benjamin. search Fund. “Being a good lawyer is great,” acquittal for a defendant in a highly pub- Brafman is also blessed with the gift says Brafman, “but being a good person is

licized case involving the Gambino crime of gab, a likable personality, and quick- more important.” Jennifer Frey previous page: ap photo

108 NYU SCHOOL OF LAW alumni almanac For Marriage For All ne month after he argued before tionality of Proposition 8, the ballot measure the U.S. Court of Appeals for the Ninth that amended the California state constitu- OCircuit to strike down California’s tion to prohibit same-sex marriage. At press ban on gay marriage, Trustee David Boies time, the unlikely co-counsels—Olson (LL.M. ’67), founder and chairman of Boies, bested Boies in Bush v. Gore in 2000—were Schiller & Flexner and one of Time maga- still awaiting a decision from the Ninth Cir- zine’s 100 Most Influential People in the cuit that will likely arrive after publication of World, delivered an impassioned speech, this magazine issue. Many expect the case to “Why Marriage Equality is Important to reach the Supreme Court. Everyone,” at the January NYU School of As Boies explained, his and Olson’s le- Law Annual Alumni Luncheon. gal argument has three components. First, The stakes, Boies said, could not be marriage is a fundamental right that the Su- more universal. “Each one of us has a stake preme Court has continually upheld. Sec- in the equality of our country, of the non- ond, depriving same-sex couples of that discriminatory nature of this country,” he right causes both them and their children said. “This is a nation that is defined not by direct harm. Finally, outlawing same-sex really important civil rights issue that we race, not by a particular ethnic group, not marriage fails to advance any legitimate face in this country.” even by language. It is defined by culture, state interest. Despite his “scars” from his loss in Bush and that culture is a culture of equality, of How the media-dubbed “odd couple,” v. Gore, Boies displayed a sense of humor re- opportunity, of non-discrimination.” with their almost diametrically opposed garding his collaboration with Olson. “When In a surprise, high-profile announcement political viewpoints, agrees on the issue we get to the Supreme Court… I’m going to nearly two years ago, Boies joined forces of same-sex marriage boils down to logic, guarantee the four justices that I got in Bush with former U.S. Solicitor General Theodore Boies explained. “This is not a conservative v. Gore, and [Olson is] going to guarantee the Olson, a member of the Dwight D. Opper- or liberal issue. This is not a Republican or five justices that he got—or their ideological man Institute of Judicial Administration’s Democratic issue. This is a human rights is- successors—in Bush v. Gore, and we’re going board of directors, to challenge the constitu- sue, a civil rights issue. It’s maybe the last to win this case nine to nothing.” A Chance to Use Law for Change The political uprisings against controversial rulers in the Middle East and North Africa helped Professor of Law on Leave Ronald Noble make his point about the use of law to achieve social justice. “You could say that the desire for fair and equitable treatment by all has gone viral,” he said in his keynote at the 2011 Black, Latino, Asian Pacific American Law Alumni Association (BLAPA) spring dinner in April. Noble was appointed secretary general of Interpol, the world’s largest international police organization with 188 member countries, 10 years ago at age 44. He was the youngest person ever to hold that office. Last year, he was re-elected to serve his third five-year term. And for the last four summers he has taught in the NYU@NUS program in Singapore. Noble described how Interpol has helped achieve social justice worldwide, including his own efforts to appoint officials from underrepresented countries to key leadership positions. Doing so also ensures that Interpol’s “actions do not reflect the will of any one individual or one system or one country, but they include the best of all possibilities,” he said. Also at the dinner, members of the NYU Law community were honored. New York City Family Court Judge Betty Sta- ton ’79 presented Distinguished Alumni Achievement awards to Taina Bien-Aimé ’91, executive director of Equality Now, and Suzette Malveaux ’94, associate professor of law at the Catholic University of America Columbus School of Law; a Distinguished Service Leadership Award to Professor of Clinical Law Bryan Steven- son; and the $10,000 BLAPA Public Service Scholarship to Adrienne Lucas ’13.

in the limelight Staton, far right photo, presented awards to Stevenson, Malvaux, and Bien-Aimé, who flank BLAPA President Rafiq Id-Din ’00 and keynote speaker Noble.

WWW.LAW.NYU.EDU 109 From Research to Advocacy, Forging Careers in Human Rights

CorcoranCorcoran HuckerbyHuckerby GoodmanGoodman SatterthwaiteSatterthwaite Bien-AiméBien-Aimé

“Sharpening the Cutting Edge: NYU Law Alumni at the Forefront of Widney Brown ’94 (profiled on opposite page), senior director Human Rights Scholarship, Lawyering, and Advocacy,” moderated of international law and policy at Amnesty International; Carole by Anne and Joel Ehrenkranz Professor of Law Ryan Goodman, was Corcoran ’83, general counsel and director of special projects at the Law Alumni Association’s fall lecture, co-sponsored by the International Crisis Group; and Adjunct Professor Jayne Huckerby Center for Human Rights and Global Justice. Joining Goodman (LL.M. ’04) and Professor Margaret Satterthwaite ’99, who co-teach were Taina Bien-Aimé ’91, executive director of Equality Now; the NYU School of Law Global Justice Clinic.

Thomas Brome’s Pillars of Success at a ceremony lauding excellence based on academic success, Trustee Thomas Brome ’67 made the point that true success also requires two less-quantifiable attributes. “Your academic achievements are a marvelous platform for a professional Joakim Dungel career, but it does not make one. You will 1978–2011 need character,” he said. “Your successful ( ) careers will require love and support from On April 1, Joakim Dungel (LL.M. ’07), 33, He was a very hard-working, dedicated your loved ones. And your family will re- died when a large group of demonstra- scholar of human rights law. He was quire love and support to be successful.” tors attacked the U.N. mission where determined to extract the utmost from Brome retired in 2007 from his partner- he worked as a human rights officer in his academic experience at NYU. Quite ship at Cravath, Swaine & Moore, where he Mazar-e-Sharif, Afghanistan. apart from his studies, he was a thoroughly represented investment banks and compa- A native of Sweden, Dungel earned his decent person. He was forthright and nies on IPOs and general corporate mat- bachelor of laws and an LL.M. at Gothen- confident. And somewhat incongruously— ters for 40 years. On April 6, 2011, he was burg University and an additional LL.M. in incongruous in academics, at least—he international law at NYU. Colleagues say was physically one of the strongest people inducted as an honorary member of the he was equally adept at writing scholarly I have ever met. The weight machines in NYU School of Law chapter of the Order of articles and gently interviewing victims of the NYU gym weren’t enough for him so he the Coif. He had first earned membership human rights abuses. Before moving to Af- would get people—me included—to lean the traditional way, graduating in the top 10 ghanistan in February, Joakim worked with down on the weights while he lifted them. percent of his class. the Special Court for Sierra Leone and in the patrick mair (ll.m. ’07) A Root-Tilden Scholar while at NYU war crimes tribunal at The Hague in respect Law, Brome continued his public service to war crimes in Yugoslavia and Rwanda. Joakim was so good at his job that he could through many philanthropies, including Dungel’s NYU Law faculty and friends have done anything, but he wanted to be serving as president of the Legal Aid Soci- remember a man who was uncommonly the closest to the people he wanted to help. ety from 1994 to 1996. strong both physically and in spirit, who I thought he was invincible and still have had a passion for peace and justice, and difficulty realizing that he is gone. who knew exactly what he wanted to do céline folsché (ll.m. ’07) with his life. The most revealing, and now poignant, Joakim was intrigued by human rights and of statements is the one Dungel himself the power they held to bring positive change, wrote in 2005 as he prepared to enter the and he made it very clear in conversations NYU Law LL.M. program. that he wanted to go out into the world and make a difference. He certainly kept his Pierre Bayle said that history is “but a collection promise, taking a succession of important of continuous crimes and misfortunes of jobs in the field, and finally made his way to mankind.” Sad as I am to have to agree the most difficult post of all, working for the with him, I have chosen not to stand by and U.N. in Afghanistan. watch while this history continues, because philip alston I believe people can settle their differences john norton pomeroy professor of law peacefully, rather than through violence. honorably inducted The Order of the Coif’s NYU

Chapter President Oscar Chase with Thomas Brome. dungel: unama

110 NYU SCHOOL OF LAW alumni almanac total ban on abortion at the U.N.’s Com- mittee Against Torture, Brown guided her Following Words with Action through every step of the process. “She was fter stories of abuse and immigrant rights to advocacy before inter- permanently on the phone with me,” says torture at the Guantánamo Bay national bodies such as the United Nations. Major. The researcher succeeded in con- detention facility began seeping But Brown sees her mandate—and Amnes- vincing the committee to issue a “strong Aout in 2003, human rights groups ty’s—more expansively. To her, issues like recommendation” in 2009 that Nicaragua demanded basic rights for detainees. access to basic health care and food secu- reconsider its abortion policy. But when lobbying government officials, rity are part of the human rights commu- Brown emphasizes the importance of organizing protests, and drafting reports nity’s bailiwick. matching the technique of persuasion to the proved ineffective, Widney Brown ’94, That conviction stems in part from her target Amnesty is trying to sway. As “Close senior director of international law and international travels. As she visited places Guantánamo” proved, she doesn’t shy away policy at Amnesty International, made ranging from Saudi Arabia to a bold choice. “There are times when the Uganda, Brown was struck by top decision makers aren’t interested in the fact that the most margin- change,” Brown says. “That’s when you alized citizens were suffering need to be more aggressive.” from a lack of services such as Brown’s solution was to help create the potable water and consistent hard-hitting “Close Guantánamo” cam- electricity, and governments paign. Amnesty unfurled the effort in 2008 were unable, or unwilling, to to capitalize on the presidential race. The provide the infrastructure to cornerstone of the initiative was putting deliver them. On her own time, a 10-by-6-foot Guantánamo cell on tour she convened a group of civil across the United States, inviting pass- engineers in London to dis- ersby to enter. In some cases, volunteers cuss how they could tap tech- were asked to assume the stress positions nology to improve conditions detainees had been subjected to. “People in the most deprived regions were saying, ‘Wow, this hurts,’” says Brown. of the earth. “The idea,” she “And we were like, ‘That’s the point.’” Pub- explains, “is to find something lic sentiment shifted. One of President like the cell phone that’s done Obama’s first official acts was to sign an more to improve the lives of executive order to close Guantánamo. Al- the world’s poor than any other though it remains open, conditions have modern invention.” Members reportedly improved. of the group are now attempt- In her 14 years as a human rights advo- ing to raise money from the cate, Brown has learned how to strategi- corporate engineering private cally rabble-rouse to get things done. That sector to pay to dispatch an Iraqi engineer from confrontation, but she is also a believer willingness to act sets her apart from other to install solar panels in his native country, in subtle persuasion—something she says policy directors, who traditionally produce with an eye toward providing sustainable she learned at the NYU School of Law. reports. “A lot of rights activists come from electricity to communities there. In 1992, Colorado passed a constitu- an academic research background,” says Brown decided to attend law school 13 tional amendment that excluded gays and Joseph Saunders ’93, deputy program direc- years after graduating from George Wash- lesbians from antidiscrimination laws in the tor at Human Rights Watch, where Brown ington University because she knew a J.D. state. Brown and Glenn Greenwald ’94, now worked for nine years before moving to could provide the entry to the human rights a blogger at Salon, responded by urging the Amnesty in 2006. “Widney’s instincts have work she coveted. In 1997, after represent- Law School to boycott Colorado. The pair long been those of an advocate, and that’s ing gay victims of hate crimes in New York met with individual members of the faculty one reason why she doesn’t just focus on City for three years, Brown joined Human to encourage them to sign on. Brown says researching reports but keeps her eye on Rights Watch. There, she started authoring she “learned not to ask up front if someone the broader issue—namely, figuring out reports on human rights abuses, and her was going to vote our way” but to begin by how we can actually change policies to im- work quickly garnered attention. “Hatred making her case instead. “You need to give prove lives.” in the Hallways”—an investigation into the people room to change their minds.” A ma- Indeed, one of the hallmarks of Brown’s harassment of gay, lesbian, bisexual and jority of faculty agreed to boycott confer- career has been trying to stretch the human transgender youth in U.S. high schools— ences in that state, which admittedly was rights agenda so that it addresses the chal- has been cited by multiple U.S. courts since more a statement than an economic blow. lenges that make life for the most vulnera- its publication in 2001. And four years later the Supreme Court ble so difficult. “People in many parts of the Now that she does more conceptualiz- struck down the amendment, in Romer v. world,” she says, “live daily with fear and ing rather than writing of reports, Brown Evans. Brown now credits those hours in want, and as a human rights organization has made a point of coaching junior col- faculty offices with teaching her the skills we need to address both issues.” Officially, leagues in how to showcase their research. she uses today to coax foreign ministers and her portfolio at Amnesty covers issues that When Esther Major, a researcher in the U.S. policymakers to support a human rights cross transnational boundaries; she’s re- Central America division at Amnesty, agenda. “It was,” says Brown, “the best train- sponsible for everything from refugee and presented arguments against Nicaragua’s ing for what I do now.” Alexandra Starr

WWW.LAW.NYU.EDU 111 Reunion 2011: Old Friends, New Ideas The Reunion program featured Daniel Shaviro moderating a panel on tax policy, jobs, and the deficit; Katherine Strandburg on DNA and patents; Vicki Been ’83 on the impact of the Stuyvesant Town default; and Barbara Gillers ’73 (LL.M. ’87) on advocating before a tribunal. At the awards luncheon, Martin Payson ’61 received the Judge Edward Weinfeld ’21 Award; Jay Furman ’71, the Alumni Achievement Award; John Goldberg ’91, the Legal Teaching Award; Amanda Norejko ’01, the Recent Graduate Award; Taina Bien-Aimé ’91, the Public Service Award; and Mitchell Jacobson ‘76, the Vanderbilt Medal. Alumni spanning five decades of classes carried on the tradition of dining and dancing at the Waldorf-Astoria in the evening.

112 NYU SCHOOL OF LAW alumni almanac Seizing the Moment Celebrating any lawyers map out their ernment, and most recently helped Sudan career plans with precision. They figure out how to handle the upcoming Panama’s First M know exactly what kind of law they secession of southern Sudan. “It’s not your want to practice almost from the minute typical legal job,” she admits candidly. Presidente they begin law school. Christina Sanford “But I can’t think of a better job or one that ’00, a Root-Tilden-Kern Public Interest has given me more opportunities.” A Panamanian alumni reception last Scholar, thought she knew, too. The chances she has had would make September became a tribute to Guill- “I had one main goal: I wanted to work in a wistful globetrotter green with envy. In ermo Endara (M.C.J. ’63) on the first anniversary of his death. After years of public policy on child welfare and poverty the first six months on the job, she traveled dictatorship, Panama made Endara its issues,” said the Law Women’s 2011 Alumna to New Delhi to help with evacuations at first democratically elected president of the Year in an interview before she ac- the embassy there and has since been to in 1989. NYU Law alumni were joined by cepted the award. The international arena Ethiopia, Chad, Kenya, Iraq, and the Su- 300 guests from the worlds of Panama- wasn’t part of that plan. But after serving as dan, among other countries. Not bad for nian politics, courts, and legal academia. someone who grew up just outside of San Francisco, went to college in Arizona, and hadn’t ever applied for a passport. “Before I started at the State Department, I had never gone anywhere that required one,” she says. Mindful of her responsibility to be dis- creet, Sanford, now 37, says that she has been able to have an impact on world events and how they unfold. “Watching things happen that you know you have contributed to—knowing that you’ve helped—is incredibly exciting and rewarding,” she says. She also loves the constantly changing nature of her job. State’s legal office moves the 170 attorneys in the department around every few years—and for Sanford that’s a good a summer intern at the State Department, thing. “I may sound a bit like Pollyanna. But she was offered a spot as an attorney/ad- what I like most about this job is that I get viser in the Office of the Legal Adviser at to change jobs on a regular basis,” she says the U.S. Department of State a year out of with a warm smile, tucking her long brown law school. “She was a self-described U.S. hair behind her ear. “We get to work on lots policy wonk,” says her NYU Law roommate of different issues, and that lets you con- Carrie Syme ’00. “So ending up in the State tinue learning. It never goes stale.” Department surprised her a little bit. But I Not everything is always rosy, of course. think she quickly realized that it’s all part Sanford had to live in a war zone in Iraq for of the same commitment to public service.” a year, for example, where she rarely, if ever, Sanford started on Monday, September ventured outside without a military escort. 10, 2001, expecting her job responsibilities And she says the seeming paralysis caused to be a mixture of management and regu- by consensus-based decision making frus- latory work, such as dealing with what al- trates her. Nevertheless, Sanford considers lowances foreign-service officers are legally herself lucky. “When I go to work, I deal with eligible for. “The first day was pretty quiet,” issues of law like how the Sudanese will be she told the audience at the award recep- able to divide the wealth in the country tion. “It got considerably busier.” between its two halves when the south se- When the second plane hit the tower, cedes,” she says. “It’s human interest.” Sanford remembers, she was getting her And after all, helping people is pretty badge. The nature of her job changed in- much what Sanford’s original goal boils stantly. During the year that followed, she down to. “Be prepared,” says the recipient spent a majority of her time coordinat- of the 2006 Call to Service Medal awarded ing embassy evacuations. Since then she by the Partnership for Public Service, of- has helped establish the Office of the U.S. fering advice to today’s law students. “You Global AIDS Coordinator, worked on the could end up doing something completely State Department’s 9/11 task force, advised different than you expect. But don’t close the newly appointed government in Bagh- yourself off from the opportunity.” You dad in 2004 through the transition to the very well might end up where you wanted nation’s first democratically elected gov- to be after all. Dody Tsiantar

WWW.LAW.NYU.EDU 113 Scholars and Benefactors Meet and Greet

1 Kenneth and Kathryn Chenault AnBryce Scholar Jayla Randleman ’13 with 1 2 Trustee Kathryn Chenault ’80 2 Brodsky Family AnBryce Scholar Alina Fortson ’12 with Katherine Brodsky ’06 and Daniel and Estrellita Brodsky

3 Thomas E. Heftler Scholars Brian Pete ’11 and Wentao Yuan ’13 with Lois Weinroth and Alan Klinger ’81

4 Eric M. ’77 and Laurie B. Roth Scholar 3 4 Corinne Milliken ’12 with Laurie Roth and Trustee Eric Roth ’77

5 Traci Quackenbush Viklund and Diana Holden with Britton Kovachevich ’13, recipient of the AnBryce Jacob Marley Foundation Scholarship in honor of Christopher Quackenbush ’82

6 A.H. Amirsaleh Scholar Abid Hossain ’13 with Mahyar Amirsaleh

7 Akin Gump Strauss Hauer & Feld Scholar Paula Vera ’13 (far right) with Bryna Beckler-Knoll, Sarah Posner, Rachel Presa ’10, and Estelle Diaz of Akin Gump Strauss Hauer & Feld 5 6 8 George T. Lowy Scholars Victoria Portnoy ’12 and Richard Kim ’12 with Trustee George Lowy ’55

9 Sullivan and Cromwell Public Service Scholars Candace Mitchell ’13, Saerom Park ’12, and Ruben Loyo ’11 with Trustee Kenneth Raisler ’76

10 Bonnie and Richard Reiss Scholars Kristen Matthews ’13 and Nina Bell ’12 with Life Trustee Bonnie Reiss ’69 and 7 8 Trustee Richard Reiss Jr. ’69

11 Sinsheimer Public Service Scholar Kosha Tucker ’11 with Florence Sinsheimer and Life Trustee Warren Sinsheimer (LL.M. ’57)

12 Ruth L. Pulda Scholar Allison Haupt ’12 with Janet Sabel ’84 and Howard Rifkin

13 Thomas E. Franck Scholar Maria Cecile Sicangco ’11 with Martin Daley and Rochelle Fenchel 9 10

11 12 13

114 NYU SCHOOL OF LAW 2010–11 Career Highlights Rising Stars in the Seth Glickenhaus ’38 was honored for Jeffry Aronsson (LL.M. ’79) was named CEO Legal Academy and lifetime achievement and contributions of the Paris fashion house Emanuel Ungaro. to the arts, design, and education by the the Judiciary Museum of Arts and Design. Michael Bardee ’83 was named general counsel at the Federal Energy Regulatory NYU Law alumni landed an impres- Former New York City Mayor Ed Koch Commission. sive number of posts at the helm of ’48 formed New York Uprising, a coalition law schools or on the bench. The fol- to reform the state’s government. Peggy Twohig ’83 joined the lowing are appointments announced Consumer Financial Protection Bureau in the year ending July 1, 2011. The Federal Bar Association’s Inland Em- implementation team. pire Chapter awarded Charles Doskow deans (LL.M. ’62) its 2011 Erwin Chemerinsky Elliot Peters ’85 was named a fellow at the Paul Schiff Berman ’95, Dean, Defender of the Constitution Award. American College of Trial Lawyers. George Washington University Law School Stephen Ross (LL.M. ’66) received an Former State Senator Jonathan Harris ’90 honorary doctorate of laws from the was appointed deputy treasurer by the Craig Boise (LL.M. ’99), University of Michigan. Connecticut state treasurer. Dean, Cleveland-Marshall College of Law D. Paul Jones (LL.M. ’68) was inducted Jonathan Donnellan ’91 was named a deputy into the Alabama Business Hall of Fame. general counsel at Hearst Corp. Stephen Mazza (LL.M. ’93), Dean, University of Kansas New York State Chief Judge Jonathan Nicole Jones ’95 was named general counsel School of Law Lippman ’68 received an honorary at CIGNA. doctorate of laws from Pace University. Eric Schwartz ’85, Dean, Sarah Coyne ’98 was promoted to deputy University of Minnesota The International Criminal Court chief of the Eastern District of New York Humphrey School of Public Affairs appointed Judge Daniel David Ntanda U.S. Attorney’s Office business and securities Nsereko (LL.M. ’71, J.S.D. ’75) to chair fraud section. Philip Weiser ’94, Dean, a case on post-election violence in Kenya. University of Colorado Law School Kevin Huffman ’98 is the new education Retired New York City Fire Department commissioner of Tennessee. captain Brenda Berkman ’74 is featured judges in the CNN documentary “Beyond Winston Ma (M.C.J. ’98) has become man- Albert Diaz ’88, Judge, U.S. Court Bravery: The Women of 9/11.” aging director of China Investment Corp.’s of Appeals for the Fourth Circuit new office in Toronto. Richard Ketchum ’75 was appointed Todd Edelman ’94, Associate to the President’s Advisory Council on Jacqueline Maduneme (LL.M. ’98) published Judge, Superior Court of the Financial Capability. her memoir, Ada’s Daughter. District of Columbia The New York State Association of Daniel Schwager ’98 was appointed staff Patrick Ende ’82, Judge, Criminal Defense Lawyers named Joel director and chief counsel of the U.S. House Maine District Court Rudin ’78 Outstanding Criminal Practi- Committee on Ethics. tioner and gave Manuel Vargas ’84 its Sean Lane ’91, U.S. Bankruptcy Lifetime Achievement Award. Paul Quigley (LL.M. ’05) founded the Irish Judge, U.S. Bankruptcy Court news website NewsWhip. Julie Salamon ’78 published Wendy Tony Leung ’85, U.S. Magistrate and the Lost Boys: The Uncommon Life of Craig Van Matre (LL.M. ’07) joined the Judge, Fourth Judicial District Wendy Wasserstein in August. University of Missouri Board of Curators. of Minnesota

Raymond Lohier ’91, Judge, Sanctuary Recognizes NYU Law Nine U.S. Court of Appeals for the Second Circuit Sanctuary for Families’ Center for Battered Women’s Legal Services named its 2010 Above and Beyond Honorees for Excellence in Pro Bono Advocacy. Among those honored in Marc Marmaro ’72, Judge, November were Kimberly Spoerri ’08, an associate at Cleary Gottlieb Steen & Hamilton; Los Angeles Superior Court Melissa Aoyagi ’03, an associate, and Dara Sheinfeld ’02, a former associate, at Davis Polk & Wardwell; Tyler Amass ’07, Kristen Hendricks ’06, and Kristen Mathews ’08, associ- Louis James Menendez ates at Gibson, Dunn & Crutcher; Henry Ko ’98, an associate at Kirkland & Ellis; Alyssa (LL.M. ’76), Judge, Juneau Watzman ’07, an associate at Simpson Thacher & Bartlett; and Laura Greenberg ’07, an Superior Court associate at Willkie Farr & Gallagher. Led by Executive Director Laurel Eisner ’84, Sanctuary for Families is dedicated to Lynn Nakamoto ’85, Judge, serving domestic violence victims and sex trafficking victims, and their children. Dorchen Oregon Court of Appeals Leidholdt ’88 directs the organization’s Center for Battered Women’s Legal Services.

WWW.LAW.NYU.EDU 115 alumni almanac cades, he tracked down those brave Lynd witnesses, or their descendants, and had Acts of Courage, Revisited them recall the case and the times. n 1946, 12-year-old gordon martin A quarter-century later, Gordon was The book was nominated this spring Jr. played for Boston’s all-white West a Boston criminal court judge and over- for a Silver Gavel award from the Ameri- Roxbury baseball team. It was a year whelmed by daily stories of senseless vio- can Bar Association by retired DePauw beforeI Jackie Robinson broke the lence. Needing a change of scenery, he University History Professor John Dittmer, color barrier, and that season’s applied to attend Race and Na- who calls it “a masterful combination of big game was against an all- tionality in Modern America, a historical memoir and scholarly research. black team. “I had never thought What is particularly impressive and impor- about black people playing tant is the oral history component of the baseball,” Martin recalled. “The book. [T]he local people are at the center of grass was green, and the players this book, where they should be.” were white. That’s the way it had Now retired and an adjunct professor at been for me. But by the end of our New England Law, Martin went on a south- game, I was impressed by these dark- ern book tour this winter. In Memphis skinned kids who had ventured out he met Reginald Houze, the 33-year-old to play with us.” grandson of one of Lynd’s black witnesses. Sixteen years later, Martin ’60 A high school music director with a mas- would again be indelibly touched by ter’s in education from NYU’s Steinhardt courageous black citizens, this time School, Houze grew up in a Hattiesburg in Hattiesburg, Mississippi. Armed with a where white and black children “went to law degree that he earned as a Root-Tilden school together, played together, slept over Scholar, Martin was a staff attorney in the at each others’ homes, and still know one Civil Rights Division of the Department of another.” He had only a vague awareness of Justice. He prepared witnesses for the gov- Hattiesburg’s past. “What a history lesson,” ernment’s case United States of America v. Houze said. “Now I know why Election Day Theron C. Lynd, during which they would was always important in my family.” attest that they were denied the right to seminar offered by NYU’s Humanities De- Indeed, it’s hard to imagine any day more vote for failing to answer such questions as partment. As Martin recounts, Professor significant than the one in 2008 when peo- “How many bubbles in a bar of soap?” David Reimers called to ask if he’d actually ple could vote for Barack Obama to become That year, 1962, the federal government come from Boston every Friday. “I told him,” the first black U.S. president. But the crimi- won its very first contempt conviction of says Martin, “‘So long as the shuttle is fly- nal court judge in Martin is not yet ready to a southern registrar, the cigar-chomping ing, I’ll be there.’” celebrate. “An adolescent black male has a Lynd. It was a significant step toward pas- Martin’s seminar project idea grew into greater likelihood of coming under penal or sage of the Voting Rights Act of 1965, by his 2010 book, Count Them One by One: probation restraint than attending a four- which Congress outlawed discriminatory Black Mississippians Fighting for the Right year college,” he points out. “We still have a practices in voter enrollment. to Vote, an account of how, after several de- long way to go.” Thomas Adcock t. peter lyons

116 NYU SCHOOL OF LAW alumni almanac Charles Conley (1921–2010) Trusted counsel, accomplished Alabama civil rights attorney

half-century ago, when auda- white, could sit. “Well, that was just pure cious black southern men had spite,” says Conley’s widow, Ellen, “but it grave reason to fear for their lives, didn’t last long.” In one of Conley’s most ACharles Swinger Conley ’55 hung a significant victories, Seals v. Wiman, also shingle in his native Montgomery, Alabama, in 1962, the U.S. Court of Appeals for the and set about becoming a “radical threat to Fifth Circuit in New Orleans overturned the status quo,” says NYU Law Professor the conviction of Conley’s client, Willie Bryan Stevenson, founder and executive Seals, a young black man found guilty of director of the Montgomery-based Equal raping a white woman in 1958 by an all- Justice Initiative. During his long and il- white jury and sentenced to Alabama’s lustrious career, Conley fought civil rights death row. The court held that exclusion of cases small and large, counseled move- blacks from Alabama’s jury rolls violated ment leaders Martin Luther King Jr. and the 14th Amendment. Ralph Abernathy, and eventually became Conley also played a part in the land- Alabama’s first elected black judge. “It was mark 1964 Supreme Court case New York tremendously courageous for an African- Times Co. v. Sullivan. He represented four American lawyer to challenge the system ministers, including Abernathy, as co- that existed in the ’50s and ’60s throughout plaintiffs with the Times, contributing to the South,” says Stevenson. “Judge Conley’s briefs in a case that ultimately established accomplishments shape and inspire us in an “actual malice” standard had to be met our work today.” before news accounts about public offi- Conley died last September at age 89. cials could be deemed libelous. The ruling Before his death, he had made provisions allowed unfettered coverage of civil rights for a $1.2 million gift to his alma mater demonstrations then taking place through- that will endow the Honorable Charles out the South. Swinger Conley Scholarship Fund and Ellen Conley was her husband’s chauf- will also fund a permanent memorial at feur and protector in the turbulent ’60s, es- the Law School honoring Conley’s out- pecially when he worked at his office late standing legal accomplishments and his- into the night. “I’d always insist on get- toric career. ting out of the car first,” she said in a tele- Conley’s law office on Bainbridge phone interview. “If a bullet was coming, it Street—walking distance from King’s Dex- would get me. Chuck had important work Martin Luther King Jr. and Charles Conley in Birmingham, date unknown ter Avenue Baptist Church—was infor- to finish.” T.A. mally known as Executive House. During the 1960s, it was a center of social activism in a city that was itself ground zero for the Leading at the Hub of Business and Law civil rights movement. Conley’s strategic University and Law School Trustee Mitch- Jacobson Public Service Scholarship for counsel was sought by the likes of Rosa ell Jacobson ’76 was awarded the Vander- Women, Children, and Families at NYU Law. Parks, leader of the Montgomery bus boy- bilt Medal, the Law School’s highest honor, In bestowing the award, Dean Richard cott; King, Abernathy, and other members at the 2011 NYU Law reunion this spring. Revesz said: “It is a tremendous honor to of the Southern Christian Leadership He is the patron of the Jacobson Lead- award the Vanderbilt Medal to Mitchell, Conference; and fellow crusading lawyers ership Program in Law and Business, a who has been a valuable role model, advi- Virginia Foster Durr and Fred Gray. collaboration with the Stern School of ser, and friend throughout Upstairs at Executive House, Conley Business that is specially designed to my deanship. His support maintained overnight accommodations— train students at the crossroads of these has made a profound dif- complementary disciplines who aspire to ference to the quality of full bar included—for out-of-town activists nontraditional career paths. Jacobson is the education we provide and visiting counsel such as New Yorkers chair and former chief executive officer our students and to the William Kunstler and Arthur Kinoy. of MSC Industrial Direct, one of the na- intellectual environment Conley was engaged in a full-scale bat- tion’s leading direct distributors of indus- we provide our faculty tle for civil rights. In Cobb v. Montgomery trial supplies and equipment. He began and the greater- Library Board (1962), for example, Conley’s his career in 1976 at his father’s business, Law School pro bono client was a black child denied Sid Tool, restructuring it in 1995 to create community.” use of the city’s main library. When Con- MSC, then taking it public. ley prevailed and the U.S. District Court Jacobson also serves as a trustee for in Montgomery ordered the library deseg- New York-Presbyterian Hospital. In addi- regated, officials removed all the visitor tion, he and his wife, Kathy, support the

conley: courtesy of ellen conley ellen of courtesy conley: chairs from the library. No patron, black or

WWW.LAW.NYU.EDU 117 2

1 3

4 7 8

5 6 9 10 Tangoing with Terrorism ith the 10th anniversary of the 9/11 attacks on the horizon, a group of distinguished judges and lawyers, faculty, trustees, alumni, Wand their guests gathered in Buenos Aires in mid-July for a three- day National Security and Civil Liberties conference co-convened by Dorit Beinisch, president of the Supreme Court of Israel, and University Professor Jeremy Waldron. The group discussed the implementation and interpretation of international law by national courts in the fight against terrorism, protection of rights in times of war, the courts’ role in counterterrorism measures, and judicial review of security issues, as well as examining models of military justice and criminal law enforcement.

1 Lord Jonathan Hugh Mance, Justice of the Supreme Court of the United Kingdom, with University Professor Jeremy Waldron 2 Lady Justice Mary Arden of the Court of Appeal of England and Wales 3 His Excellency Ricardo Luis Lorenzetti, President of the Supreme Court of Argentina 4 Frank J. Guarini Jr. ’50 (LL.M. ’55) with Adjunct Professor and Co-Director of the Leadership Program in Law and Business Gerald Rosenfeld 5 Dorit Beinisch, President of the Supreme Court of Israel, with Trustee Jay Furman ’71 6 U.S. Supreme Court Justice Clarence Thomas 7 Trustee Charles Klein ’63 with Jane Klein 8 Trustee Rachel Robbins ’76 with Richard Robbins ’75 9 Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit 10 Vilma Martinez, U.S. Ambassador to Argentina 11 U.S. Supreme Court Justice Elena Kagan with Chairman of the Board of Trustees Anthony Welters ’77 11 silvio serber silvio

118 NYU SCHOOL OF LAW Letters of the Law after the publication of his debut novel, The Metropolis Case, last December, Matthew Gallaway ’95 received the writer’s holy grail—a glowing New York Times re- Tyree with West Virginia residents at a press conference, seeking to ban underground disposal of coal slurry. view: “The book is so well written—there’s hardly a lazy sentence here—and filled with such memorable lead and supporting play- Charity Begins at Home ers that it quickly absorbs you into its worlds.” The Metropolis Case features a cast of s environmental policy co- members about their rights. Making house characters and story lines that span mod- ordinator for WE ACT for Environ calls to taste residents’ water and hear their ern-day New York and Pittsburgh as well as mental Justice in Harlem—her first complaints, Tyree “never uses a notepad,” 19th-century Europe. The unifying theme is Ajob after graduation—Stephanie says resident Maria Lambert. “She just lis- opera. Gallaway, a senior acquisitions edi- Tyree ’08 watched from afar as residents in tens and has a way of leading people into tor in the law division of Oxford University her home state of West Virginia strapped conversation so that they can figure solu- Press, toured for several years as a guitarist themselves to dump trucks or formed tions out on their own.” for an indie rock band before turning to le- human chains with their linked hands Because of Tyree’s persistence, politi- gal publishing. “Studying law, because it’s encased in hardened cement to protest coal cians were moved to invite West Virginia so language-based, teaches you to be a very mining that they believed destroyed moun- coal industry leaders and local residents careful writer and thinker,” says Gallaway. tains, polluted water sources, and created to a meeting about a bill she helped draft “That’s very important for any kind of writ- hazardous living conditions. “People were that proposed alternative means of pro- ing, whether it’s creative or a brief.” standing up in a way that I’d never seen cessing coal. In the end, the state legisla- before, drawing the line and saying, ‘We’re ture defeated the bill. “But as a result of that not going to take this anymore,’” Tyree says. meeting,” says Dianne Bady, co-director of Roundtable Guests In August 2009, Tyree traded her Bed- OVEC, “we’ve educated the legislature and During 2010–11, Dean Richard Revesz ford-Stuyvesant apartment for a house in gotten a lot more publicity, so in the future invited these prominent alumni, along the foothills of the Appalachian Mountains. we may likely get the bill passed.” with defense attorney Benjamin Brafman And she has joined activists and residents Tyree and coal industry leaders gener- (LL.M. ’79; profiled on page 108), to in protesting detrimental coal mining ally don’t see eye to eye. Jason Bostic, vice intimate luncheons with students. practices as the environmental justice co- president of the West Virginia Coal Asso- Gary Claar ’91 ordinator at the Ohio Valley Environmen- ciation, says there are certain issues on General Partner and Co-Founder, tal Coalition (OVEC), a West Virginia–based which he and Tyree “respectfully agree to JANA Partners grassroots advocacy organization. disagree.” He insists that the only chemi- John Gaffney ’86 Tyree’s work is divided between fight- cals found in coal slurry are minerals that Senior Vice President, Corporate ing mountaintop removal, in which explo- occur naturally in West Virginia’s soil. And Development and General Counsel, sives are used to blast off as much as 500 he asserts that the industry is highly regu- Solyndra feet from the top of a mountain to expose lated, its mines frequently inspected. But Alan Kava ’90 its coal seam, and coordinating the Sludge he calms down when talking about Tyree. Partner, Goldman Sachs Safety Project, which educates the commu- “We fight like cats and dogs on a particular Robert Kindler ’80 nity about the potential hazards of slurry issue but can walk out of the state capitol Global Head of M & A and or sludge—the wastewater that results from and have a decent, tame, civilized conver- Vice Chairman, Morgan Stanley washing coal. The coal industry “will tell sation,” he says. “Stephanie is a class act.” Randal Milch ’85 you up and down that slurry is safe, that it During the meeting about the draft Executive Vice President and General doesn’t travel into people’s groundwater,” bill, Bostic admits that he lost his temper Counsel, Verizon Communications Tyree says. But when some people turn on at Tyree. But Tyree remained on point and Andrew Siegel ’90 the tap, she asserts, their water “comes out did not back down. “She handled it grace- Senior Vice President, Strategy black with lumps of coal.” fully without giving an inch of ground,” and Corporate Development, The only employee at OVEC to hold a law says Mat Louis-Rosenberg, an activist with Advance Publications s Kolins k ec degree, she helps residents file lawsuits and Coal River Mountain Watch in West Vir- David Tisch ’06 deal with permits, assists in drafting pro- ginia, who was also in attendance. “After Managing Director, TechStars NYC

photo: B posed legislation, and educates community the session, he apologized.” Jennifer Frey

WWW.LAW.NYU.EDU 119 A Chat with Robert Kindler ’80 For a guy who has been at the top of both Big Law and Wall Street, Robert Kindler has a pretty idiosyncratic background. Start with the fact that he majored in romantic poetry and music in college (he was recruited to Colgate because of his talents on the flute). He briefly dropped out of law school and went to work for his father’s plumbing company because he wasn’t sure a legal career was for him. And he once owned an ice cream shop in Katonah, in New York’s Westchester County, where he could have all the coffee ice cream he wanted. • Since then, each career choice has led Kindler in only one direction: up. He worked at Cravath, Swaine & Moore for 20 years—from 1980 to 2000—ultimately running the firm’s mergers and acquisitions business. Then he jumped the fence and became an investment banker, first at Chase Manhattan for nearly six years—rising to global head of M & A at JPMorgan Chase—and more recently at Morgan Stanley, where he is vice chairman and global head of M & A. Kindler sat down in February with writer Duff McDonald to talk dollars and sense.

hat are the differences between law and banking other What advice would you give your law school self if you could talk to than the money? When I was at Cravath, the culture him right now? I would tell him that your career is going to take a of the firm was that a partner, no matter how senior, very unpredictable path, and that you just need to focus on learn- W needed to read every document—and every word of ing from everything you do wherever you happen to be working. every document. So as a partner at Cravath, you were still nego- And don’t think you can plan out your entire career. A lot of law tiating merger agreements. As a banker, you students think that they can map out their careers, and you can’t. are not doing that kind of work; it is much more about your interpersonal skills, After a recessionary lull, a lot of deals are getting done in early 2011. plotting strategy, and being out meeting What’s your outlook for M & A? The prognosis for 2011 is quite good. with clients. I find that far more interest- I’ve been fairly pessimistic about M & A the last couple of years, but ing. But on the downside, you travel a going into 2011, all the signs indicate that we’re going to have a very lot more as a banker. I’m on the road at good year. Corporations need growth, and they can’t get it organi- least three days a week. And I didn’t do cally. So one of the ways they’ll get it is through M & A. The other that as a lawyer. factor is a strong equity market. When you have a strong equity market, M & A is usually very strong. And maybe a third factor is So, then…J.D. or M.B.A.? You that the equity markets are not that volatile. When you have wide can’t go wrong with either swings in the equity markets, people stay away from doing deals, degree or even a combined but that’s not the case right now. degree. There are a lot of people in the M & A group at You were at the center of the action in the credit crisis. What was Morgan Stanley who have the main thing you learned? I didn’t fully appreciate how fragile legal degrees. Getting a financial systems can be. There were periods of time when you law degree is great training couldn’t get your money out of money market funds! A lot of us and doesn’t stop you from thought that while there are ups and downs in the stock market, getting into banking—it the overall financial system was sound. But to see how fragile might even help you. The the system was—that it wouldn’t have survived without massive business world is filled government intervention—was an eye-opener. with people with law degrees. James Gorman, What was your favorite deal—as a lawyer or a banker? The most ex- the CEO of Morgan citing and unlikely deal was when Comcast took over AT&T’s cable Stanley, has one. business in a hostile bid. It was a $72 billion hostile bid for a sub- Having said that, sidiary of AT&T. Taking over a subsidiary is tough—and complex— I think if you’re but we made the proposal publicly and kind of forced them to do it. certain that you want to become Your brother, Andy, is a successful stand-up comedian who has a banker, it makes been on Letterman numerous times. What kinds of parents raise a more sense to get comic and the global head of M & A at Morgan Stanley? A plumber an M.B.A. with two master’s degrees and a Quaker.

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