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Available Here \\jciprod01\productn\n\nys\72-1\FRONT721.txt unknown Seq: 1 11-MAY-17 8:41 NEW YORK UNIVERSITY ANNUAL SURVEY OF AMERICAN LAW VOLUME 72 ISSUE 1 NEW YORK UNIVERSITY SCHOOL OF LAW ARTHUR T. VANDERBILT HALL Washington Square New York City \\jciprod01\productn\n\nys\72-1\FRONT721.txt unknown Seq: 2 11-MAY-17 8:41 New York University Annual Survey of American Law is in its seventy-fourth year of publication. L.C. Cat. Card No.: 46-30523 ISSN 0066-4413 All Rights Reserved New York University Annual Survey of American Law is published quarterly at 110 West 3rd Street, New York, New York 10012. Subscription price: $30.00 per year (plus $4.00 for foreign mailing). Single issues are available at $16.00 per issue (plus $1.00 for foreign mailing). For regular subscriptions or single issues, contact the Annual Survey editorial office. Back issues may be ordered directly from William S. Hein & Co., Inc., by mail (1285 Main St., Buffalo, NY 14209-1987), phone (800- 828-7571), fax (716-883-8100), or email ([email protected]). Back issues are also available in PDF format through HeinOnline (http://heinonline.org). All works copyright © 2017 by the author, except when otherwise expressly indicated. For permission to reprint an article or any portion thereof, please address your written request to the New York University Annual Survey of American Law. Copyright: Except as otherwise provided, the author of each article in this issue has granted permission for copies of that article to be made for classroom use, provided that: (1) copies are distributed to students at or below cost; (2) the author and journal are identified on each copy; and (3) proper notice of copyright is affixed to each copy. Manuscripts: The Annual Survey invites the submission of unsolicited manuscripts. Text and citations should conform to the 20th edition of A Uniform System of Citation. Please enclose an envelope with return postage if you would like your manuscript returned after consideration. Editorial Office: 110 West 3rd Street, New York, N.Y. 10012 (212) 998-6540 (212) 995-4032 Fax http://www.annualsurveyofamericanlaw.org \\jciprod01\productn\n\nys\72-1\FRONT721.txt unknown Seq: 3 11-MAY-17 8:41 For what avail the plough or sail Or land or life, if freedom fail? EMERSON \\jciprod01\productn\n\nys\72-1\FRONT721.txt unknown Seq: 4 11-MAY-17 8:41 iv \\jciprod01\productn\n\nys\72-1\FRONT721.txt unknown Seq: 5 11-MAY-17 8:41 NEW YORK UNIVERSITY ANNUAL SURVEY OF AMERICAN LAW 2016–2017 BOARD OF EDITORS Editor-in-Chief ALISON C. WALL Managing Editors HANNAH J. CORNING ELIANA M. PFEFFER SARAH M. TOPOL Development Editors Executive Article Editors Senior Articles Editors LILLIAN J. ASTON ARTHUR J. ARGALL S. RIANE HARPER EKATERINA ROZE CATHERINE CHONG JESSICA LEPPER GIANNA C. WALTON PHILIP FITZPATRICK NICOLE C. GARRETT SCOTT GLICKSMAN Note Editors SARA N. PAHLAVAN HARRY I. BLACK CRISTINA M. STILLER Online Editor SARAH A. HSU DEREK A. SUTTON HEATHER M. GARVEY Article Editors MICHAEL AMENT RICHARD E. GOLDRING KELSEY A. POWDERLY DAVID BARUCH ANDREW M. HARRIS KATHERINE ROSOFF ZACHARY H. BENDINER MAGGIE KORNREICH DAVID P. RUTTENBERG JEREMY A. BUNTING NATALIE LIN DORAN SATANOVE JAMES P. CALLAHAN WESLEY C. MOORE KYLE S. SHAUB MICHAEL CINNAMON CHLOE NEELY DANIEL TREIMAN GIANPAOLO F. CIOCCO ALI M. NIERENBERG DANA WELLESLY-STEIN AYELET EVRONY GABRIEL A. PANEK MAX D. YOELI ANDREA FEUR ANNA PARNES ELIZABETH ZHOU THEODORE GALANAKIS ADIN PEARL XUE CHU ZHOU Staff Editors ERIK F. BAKKE RAYMOND N. HABBAZ NEALOFAR S. PANJSHIRI KEITH F. BARRY CRYSTAL N. HANS ANTHONY PASCUA, JR. FRANCES BERNSTEIN KATHRYN A. HAINES EMILY C. POOLE AMANDA BOITANO NATHALIE A. HERRAND STEPHEN M. RETTGER MICHAEL J. BOREK CHRISTIAN KINSELLA CHRISTINA N. ROMERO LANCE BOWMAN PHILLIP G. KRAFT ELOISE D. ROTENBERG TONY CHENG LAUREN KREPS OZGUN SAK SEBASTIAN P. CLARKIN SARAH K. LEFSKY BETH SHANE TIMOTHY CORY ALLISON R. LEHRER HANNAH S. STERN CLAUDIA DIAZ-ALEMANY RACHEL M. LIEB ALICE THAI EMILY E. FOUNTAIN RACHEL MALHIET SAMUEL P. VITELLO JESSICA B. FUHRMAN SUCHITA MANDAVILLI DILLON M. WESTFALL SEAN M. GALVIN NAOMI Y. MONCARZ MATTHEW J. WIENER COURTNEY A. GANS DANIEL R. MUELLER KEVIN WU XUAN GONG LAUREN NIKODEMOS WILLIAM P. YOUNG NATHALIE M. GORMAN AISHLINN R. O’CALLAGHAN CAROLINE ZIELINSKI LEONID GRINBERG \\jciprod01\productn\n\nys\72-1\FRONT721.txt unknown Seq: 6 11-MAY-17 8:41 vi \\jciprod01\productn\n\nys\72-1\FRONT721.txt unknown Seq: 7 11-MAY-17 8:41 This Volume of New York University Annual Survey of American Law is respectfully dedicated to JUDGE JACK B. WEINSTEIN \\jciprod01\productn\n\nys\72-1\FRONT721.txt unknown Seq: 8 11-MAY-17 8:41 JUDGE JACK B. WEINSTEIN \\jciprod01\productn\n\nys\72-1\FRONT721.txt unknown Seq: 9 11-MAY-17 8:41 JUDGE JACK B. WEINSTEIN Judge Jack B. Weinstein has served on the U.S. District Court for the Eastern District of New York since his confirmation in 1967. To- day he is one of the longest serving judges in the federal judiciary. He sat as chief judge of the Eastern District from 1980-1988 and as- sumed senior status in 1993, though he continued to take a full caseload. Judge Weinstein’s time on the bench has been character- ized by his innovative techniques, his creative problem solving, and his profound humanity. Through these valuable characteristics Judge Weinstein has over his prolific tenure made an indelible con- tribution to the body of American law. For this contribution the Board of Editors of the N.Y.U. Annual Survey of American Law proudly dedicate to him this 72nd Volume. Judge Weinstein was born in Wichita, Kansas, on August 10, 1921. When he was five years old his family resettled in Brooklyn, New York. As a young adult living under the conditions of the Great Depression, Weinstein worked on the docks during the day while at- tending Brooklyn College at night. When World War II unfolded he enlisted in the U.S. Navy, serving in the submarine corps in the Pa- cific Theater. In 1943 he received his bachelor’s degree from Brook- lyn College, attending graduation in his Navy uniform. After the war Weinstein enrolled in Columbia Law School, graduating in 1948. He then served as a law clerk for the Honorable Judge Stanley H. Fuld of the New York State Court of Appeals. In 1952 Columbia Law School appointed him to the faculty whereupon he began working closely with Thurgood Marshall and the NAACP Legal Defense Fund on the litigation efforts behind Brown v. Board of Education. On January 16, 1967, Weinstein was appointed to the Eastern District by President Lyndon B. Johnson on the recommendation of Senator Robert F. Kennedy. During his tenure he gained a reputa- tion for his unconventional courtroom practices, deciding to eschew his black robe for all but ceremonial occasions and often sitting at the table with the parties during hearings and sentencings instead of upon his judge’s bench. Confident in his ability to manage his court- room, Judge Weinstein made such gestures in order to create an at- mosphere of equality and compassion. On the bench Judge Weinstein took to heart the role of the judge as a creative problem solver particularly in the realm of mass tort litigations. In addition to writing a number of law review articles, Judge Weinstein has penned leading treatises on mass torts, evidence, and New York practice. Judge Weinstein’s confidence, composure, and compassion in the courtroom over the length of a fruitful judicial career has left an impression in American law worthy of recognition. By dedicating this 72nd Volume of the N.Y.U. Annual Survey of American Law, we the Board of Editors commemorate and celebrate the Honorable Judge Jack Weinstein for his extraordinary pursuit of true justice under the American law. \\jciprod01\productn\n\nys\72-1\FRONT721.txt unknown Seq: 10 11-MAY-17 8:41 DEDICATEES OF NYU ANNUAL SURVEY OF AMERICAN LAW 1942 Harry Woodburn Chase 1978 Henry J. Friendly 1943 Frank H. Sommer 1979 David L. Bazelon 1944 Manley O. Hudson 1980 Edward Weinfeld 1945 Carl McFarland 1981 William J. Brennan, Jr. 1946 George B. Galloway 1982 Shirley M. Hufstedler Robert M. LaFollette, Jr. 1983 Thurgood Marshall A.S. Mike Monroney 1984 Hans A. Linde 1947 Roscoe Pound 1985 J. Skelly Wright 1948 Arthur T. Vanderbilt 1986 William Wayne Justice 1949 Herbert Hoover 1987 Frank M. Johnson, Jr. 1950 Bernard Baruch 1988 Bernard Schwartz 1951 Robert P. Patterson* 1989 Barbara Jordan 1952 Phanor J. Ede 1990 Harry A. Blackmun 1953 Edward S. Corwin 1991 Martin Lipton 1954 Arthur Lehman Goodhart 1992/93 John Paul Stevens 1955 John Johnston Parker 1994 Judith S. Kaye 1956 Henry T. Heald 1995 Hillary Rodham Clinton 1957 Herbert F. Goodrich 1996 Sandra Day O’Connor 1958 Harold H. Burton 1997 Ruth Bader Ginsburg 1959 Charles E. Clark 1998 Janet Reno 1960 Whitney North Seymour 1999 Alexander L. Boraine 1961 Austin Wakeman Scott Desmond M. Tutu 1962 Fred H. Blume 2000 George Mitchell 1963 Laurence P. Simpson 2001 Norman Dorsen 1964 Edmond Cahn* 2002 Laurence H. Tribe 1965 Charles S. Desmond 2003 John Sexton 1966 Tom C. Clark 2004 Richard Posner 1967 Francis J. Putnam 2005 Antonin Scalia 1968/69 Russell D. Niles 2006 Ronald Dworkin 1969/70 Jack L. Kroner* 2007 Stephen G. Breyer 1970/71 Frank Rowe Kenison 2008 Anthony G. Amsterdam 1971/72 Robert A. Leflar 2009 Patricia M. Wald 1972/73 Justine Wise Polier 2010 Arthur R. Miller 1973/74 Walter J. Derenberg 2011 Cass R. Sunstein 1974/75 Robert B.
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